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Bombay Salt & Chemical Industries Vs. L.J. Johnson & Ors | shall state among other things the terms and conditions of the sale. Sub-rule (8) provides that the person declared to be the highest bidder at the auction shall pay immediately on the fall of the hammer a deposit not exceeding 10 per cent. of the amount of his bid and in default of such deposit the property may be resold. Sub-rule (10) states that the bid in respect of which the initial deposit has been accepted shall be subject to the approval of the Settlement Commissioner or an officer appointed by him for the purpose - provided that no. bid shall be approved until after the expiry of 7 days from the date of the auction. Sub-rule (11) provides that the intimation of the approval of a bid or its rejection shall be given to the highest bidder, thereafter referred to in the Rules as the auction purchaser, and the auction purchaser shall when the bid has been accepted, be required within 15 days of the issue of such intimation to send or produce a Treasury challan in respect of the deposit of the balance of the purchase money. Sub-rule (15) provides that when the purchase price has been realised in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in appendix 22 or 23 as the case may be. Form 23 relates to a sale of lease-hold property and with this we are not concerned. Form 22 is in respect of freehold properties and is in these terms :"This is to certify that . . . . . . has been declared the purchaser at a sale by public auction held in pursuance of the powers conferred upon me under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (XLIV of 1954) on the . . . . . day of . . . . . . . 195 of the property described in the schedule."By virtue of Rs. 15, this certificate has to be signed by the Managing Officer.9. In this case certain conditions of the auction sale had been imposed and set out in the notice of sale. Imposition of such conditions is permitted by R. 90 (3) already referred to . The notice stated that the sale was subject to the provisions of the Act, and the Rules. Condition No. 2 provided that no. initial deposit was required from bidders who were displaced persons but that they would have to file an Indemnity Bond while others had to pay the initial deposit. It also provided that the filing of the Indemnity Bond or the receipt of the initial deposit constituted no. commitment as to the acceptance of the bid which would be subject to the approval of the Regional Settlement Commissioner and that such officer was not bound to accept the highest bid but the bidder would be held to his bid for a period of six months. Conditions No. 4 stated that within 15 days of the issue of the intimation of the approval of his bid the auction-purchaser had to send a receipted Treasury challan in respect of the deposit of the balance of the purchaser money. Condition No. 7 was to the effect that when the purchase price had been realised in full from the auction-purchaser, the Managing Officer should transfer complete ownership of the property and issue a sale certificate in the prescribed form.10. It is clear from the rules and the conditions of sale set out above that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is not bound to give, the auction-purchaser has no. right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser has yet to pay the balance of the purchase money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence. Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place. Condition of sale No. 7 in this case, furthermore, expressly stipulated that upon the payment of the purchase price in full the ownership would be transferred and a sale certificate issued. It is for the appellants to show that the property had been transferred. They have not stated that the sale certificate was issued, nor that the balance of the purchase money had been paid. In those circumstances, it must be held that there has as yet been no. transfer of the salt pans to respondents Nos. 4 and 5. The appellants cannot therefore claim the benefit of S. 29 and ask that they should not be evicted. Mr. Purshottam Trikamdas contended that the sale certificate will in any event be granted and that once it is granted, as the form of this certificate shows, the transfer will relate back to the date of the auction. It is enough to say in answer to this contention that assuming it to be right, a point which is by no. means obvious and which we do not decide, till it is granted no. transfer with effect from any date whatsoever takes place and none has yet been granted.11. In the view that we have taken on the question of transfer it is not necessary to decide the other point as to whether the appellants can be said to have been in lawful possession. In the absence of a transfer the question does not arise. | 0[ds]5. This, however, is not a point that arises on the facts of this case. The case is not concerned with any eviction under S. 19. In their application to the Chief Settlement Commissioner the appellants had not made a case under S. 19 nor could they make one. At the date of the auction and also of the application the lease was running and there was no. question of the Managing Officer terminating it under S. 19 or at all. The appellants had not then been evicted nor threatened with any eviction under S. 19. In fact, in the application the appellants had asked that they should not be evicted because the property should not have been sold but allotted to them as its value was less than Rs. 50, 000 and that, even if the sale was good, they could not be evicted because of the provisions of S. 29 of the Act. They had asked for a stay of the eviction not because of S. 19 but because they felt that their lease would run out before the application could be decided. None of the grounds, therefore, on which they sought to resist eviction turned on S. 19 of the Act. It is not the respondents case either that possession was taken from the appellants under S. 19. Whether the eviction was illegal or not for any other reason besides those on which the application is based is irrelevant. There had, in fact, been no. eviction at the date of the application to the Chief Settlement Commissioner nor when he made his order. This point of Mr. Purshottam Trikamdas, therefore, fails.6. We come now to the first point on which the application was based, namely, that the property being of a value lower than Rs. 50, 000 should have been allotted to the appellants and not sold. This point was not pressed in thiswas not disputed that the appellants were persons to whom the provisions of the section applied, nor that the property was of the class notified under29, nor further that none of the grounds on which an ejectment was permitted by the section existed. Mr. Purshottam Trikamdas had, however, to show that there was a transfer of the salt pans and that his clients were in lawful possession ofare unable to agree that because the section permits a sale by auction, whenever there is an auction the sale must be deemed to be complete. Whether there is a transfer or not depends on the conditions of the auction and these have to be examined to find out when a transfer of the property auctioned takes place. There may be a sale by auction where the sale is not complete till, for example, a document is executed. The section, furthermore, states that the transfer under it would be subject to the rules made under the Act. Turning to the Rules we are unable to say that the declaration of a bidder at the auction as the highest bidder amounts to a completed sale and to a transfer of the property to be sold.The power to sell is given by S. 20 of theIt is clear from the rules and the conditions of sale set out above that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is not bound to give, the auction-purchaser has no. right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser has yet to pay the balance of the purchase money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence. Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place. Condition of sale No. 7 in this case, furthermore, expressly stipulated that upon the payment of the purchase price in full the ownership would be transferred and a sale certificate issued. It is for the appellants to show that the property had been transferred. They have not stated that the sale certificate was issued, nor that the balance of the purchase money had been paid. In those circumstances, it must be held that there has as yet beenno. transfer of thesalt pans to respondents Nos. 4 and 5. The appellants cannot therefore claim the benefit of S. 29 and ask that they should not be evicted. Mr. Purshottam Trikamdas contended that the sale certificate will in any event be granted and that once it is granted, as the form of this certificate shows, the transfer will relate back to the date of the auction. It is enough to say in answer to this contention that assuming it to be right, a point which is by no. means obvious and which we do not decide, till it is granted no. transfer with effect from any date whatsoever takes place and none has yet beenwas not disputed that the appellants were persons to whom the provisions of the section applied, nor that the property was of the class notified underSub-section (2) of SectionIn the view that we have taken on the question of transfer it is not necessary to decide the other point as to whether the appellants can be said to have been in lawful possession. In the absence of a transfer the question does not arise. | 0 | 3,280 | 1,060 | ### Instruction:
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shall state among other things the terms and conditions of the sale. Sub-rule (8) provides that the person declared to be the highest bidder at the auction shall pay immediately on the fall of the hammer a deposit not exceeding 10 per cent. of the amount of his bid and in default of such deposit the property may be resold. Sub-rule (10) states that the bid in respect of which the initial deposit has been accepted shall be subject to the approval of the Settlement Commissioner or an officer appointed by him for the purpose - provided that no. bid shall be approved until after the expiry of 7 days from the date of the auction. Sub-rule (11) provides that the intimation of the approval of a bid or its rejection shall be given to the highest bidder, thereafter referred to in the Rules as the auction purchaser, and the auction purchaser shall when the bid has been accepted, be required within 15 days of the issue of such intimation to send or produce a Treasury challan in respect of the deposit of the balance of the purchase money. Sub-rule (15) provides that when the purchase price has been realised in full from the auction purchaser, the Managing Officer shall issue to him a sale certificate in the form specified in appendix 22 or 23 as the case may be. Form 23 relates to a sale of lease-hold property and with this we are not concerned. Form 22 is in respect of freehold properties and is in these terms :"This is to certify that . . . . . . has been declared the purchaser at a sale by public auction held in pursuance of the powers conferred upon me under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (XLIV of 1954) on the . . . . . day of . . . . . . . 195 of the property described in the schedule."By virtue of Rs. 15, this certificate has to be signed by the Managing Officer.9. In this case certain conditions of the auction sale had been imposed and set out in the notice of sale. Imposition of such conditions is permitted by R. 90 (3) already referred to . The notice stated that the sale was subject to the provisions of the Act, and the Rules. Condition No. 2 provided that no. initial deposit was required from bidders who were displaced persons but that they would have to file an Indemnity Bond while others had to pay the initial deposit. It also provided that the filing of the Indemnity Bond or the receipt of the initial deposit constituted no. commitment as to the acceptance of the bid which would be subject to the approval of the Regional Settlement Commissioner and that such officer was not bound to accept the highest bid but the bidder would be held to his bid for a period of six months. Conditions No. 4 stated that within 15 days of the issue of the intimation of the approval of his bid the auction-purchaser had to send a receipted Treasury challan in respect of the deposit of the balance of the purchaser money. Condition No. 7 was to the effect that when the purchase price had been realised in full from the auction-purchaser, the Managing Officer should transfer complete ownership of the property and issue a sale certificate in the prescribed form.10. It is clear from the rules and the conditions of sale set out above that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is not bound to give, the auction-purchaser has no. right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser has yet to pay the balance of the purchase money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence. Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place. Condition of sale No. 7 in this case, furthermore, expressly stipulated that upon the payment of the purchase price in full the ownership would be transferred and a sale certificate issued. It is for the appellants to show that the property had been transferred. They have not stated that the sale certificate was issued, nor that the balance of the purchase money had been paid. In those circumstances, it must be held that there has as yet been no. transfer of the salt pans to respondents Nos. 4 and 5. The appellants cannot therefore claim the benefit of S. 29 and ask that they should not be evicted. Mr. Purshottam Trikamdas contended that the sale certificate will in any event be granted and that once it is granted, as the form of this certificate shows, the transfer will relate back to the date of the auction. It is enough to say in answer to this contention that assuming it to be right, a point which is by no. means obvious and which we do not decide, till it is granted no. transfer with effect from any date whatsoever takes place and none has yet been granted.11. In the view that we have taken on the question of transfer it is not necessary to decide the other point as to whether the appellants can be said to have been in lawful possession. In the absence of a transfer the question does not arise.
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5. This, however, is not a point that arises on the facts of this case. The case is not concerned with any eviction under S. 19. In their application to the Chief Settlement Commissioner the appellants had not made a case under S. 19 nor could they make one. At the date of the auction and also of the application the lease was running and there was no. question of the Managing Officer terminating it under S. 19 or at all. The appellants had not then been evicted nor threatened with any eviction under S. 19. In fact, in the application the appellants had asked that they should not be evicted because the property should not have been sold but allotted to them as its value was less than Rs. 50, 000 and that, even if the sale was good, they could not be evicted because of the provisions of S. 29 of the Act. They had asked for a stay of the eviction not because of S. 19 but because they felt that their lease would run out before the application could be decided. None of the grounds, therefore, on which they sought to resist eviction turned on S. 19 of the Act. It is not the respondents case either that possession was taken from the appellants under S. 19. Whether the eviction was illegal or not for any other reason besides those on which the application is based is irrelevant. There had, in fact, been no. eviction at the date of the application to the Chief Settlement Commissioner nor when he made his order. This point of Mr. Purshottam Trikamdas, therefore, fails.6. We come now to the first point on which the application was based, namely, that the property being of a value lower than Rs. 50, 000 should have been allotted to the appellants and not sold. This point was not pressed in thiswas not disputed that the appellants were persons to whom the provisions of the section applied, nor that the property was of the class notified under29, nor further that none of the grounds on which an ejectment was permitted by the section existed. Mr. Purshottam Trikamdas had, however, to show that there was a transfer of the salt pans and that his clients were in lawful possession ofare unable to agree that because the section permits a sale by auction, whenever there is an auction the sale must be deemed to be complete. Whether there is a transfer or not depends on the conditions of the auction and these have to be examined to find out when a transfer of the property auctioned takes place. There may be a sale by auction where the sale is not complete till, for example, a document is executed. The section, furthermore, states that the transfer under it would be subject to the rules made under the Act. Turning to the Rules we are unable to say that the declaration of a bidder at the auction as the highest bidder amounts to a completed sale and to a transfer of the property to be sold.The power to sell is given by S. 20 of theIt is clear from the rules and the conditions of sale set out above that the declaration that a person was the highest bidder at the auction does not amount to a complete sale and transfer of the property to him. The fact that the bid has to be approved by the Settlement Commissioner shows that till such approval which the Commissioner is not bound to give, the auction-purchaser has no. right at all. It would further appear that even the approval of the bid by the Settlement Commissioner does not amount to a transfer of property for the purchaser has yet to pay the balance of the purchase money and the rules provide that if he fails to do that he shall not have any claim to the property. The correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract for the sale of the property to the auction-purchaser comes into existence. Then the provision as to the sale certificate would indicate that only upon the issue of it a transfer of the property takes place. Condition of sale No. 7 in this case, furthermore, expressly stipulated that upon the payment of the purchase price in full the ownership would be transferred and a sale certificate issued. It is for the appellants to show that the property had been transferred. They have not stated that the sale certificate was issued, nor that the balance of the purchase money had been paid. In those circumstances, it must be held that there has as yet beenno. transfer of thesalt pans to respondents Nos. 4 and 5. The appellants cannot therefore claim the benefit of S. 29 and ask that they should not be evicted. Mr. Purshottam Trikamdas contended that the sale certificate will in any event be granted and that once it is granted, as the form of this certificate shows, the transfer will relate back to the date of the auction. It is enough to say in answer to this contention that assuming it to be right, a point which is by no. means obvious and which we do not decide, till it is granted no. transfer with effect from any date whatsoever takes place and none has yet beenwas not disputed that the appellants were persons to whom the provisions of the section applied, nor that the property was of the class notified underSub-section (2) of SectionIn the view that we have taken on the question of transfer it is not necessary to decide the other point as to whether the appellants can be said to have been in lawful possession. In the absence of a transfer the question does not arise.
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The Prakash Cotton Mills (Private) Ltd. And Others Vs. The State Of Bombay (Now Maharashtra) | against such law. Besides, S. 114 (2) places a registered agreement, a settlement, a submission and an award on the same footing and so if an award has to conform to S. 95-A as it must so must the other three mentioned therein. Therefore, when the State Government acts under S. 114 (2) it can only do as between the parties before it what a labour court, an Industrial Court or a wage board can in law do under the Act. We do not think that S. 114 (2) authorities the State Government to act against the law as laid down by the legislature or by this Court. Section 114 (2) therefore appears to be speedy remedy (dispensing with all appeals provided under the Act) by which the State Government may direct that the terms and conditions of employment in the matter of wages, hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party. There can be no doubt, however that the State Government cannot do under S. 114 (2) what an adjudicator has no power to award under the provisions of the Act. Therefore, as we read S. 114 (2) we cannot escape the conclusion that the State Governments power to make a direction under that section is co-terminous with the power of an adjudicator (be it a labor court, an Industrial Court or a wage board under the Act) to make an award thereunder, and the State Government cannot under S. 114 (2) do what an adjudicator cannot do under the Act. This being the ambit of the State Governments power in respect of giving a direction under S. 114 (2), let us now proceed to see whether the impugned notification is within the ambit of these powers.7. By this notification the State Government has directed that the award dated March 13, 1956, made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 (both inclusive). It is not in dispute that the said award was based on an agreement between the Mill-owners Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay. The said agreement provided that it would have to be signed by each member mill of the Mill-owners Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill-owners Association never signed it. Further cl. (6) of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full-Bench formula and also in cases where a mill had made actual loss on the years working, subject to a proviso as to adjustment. Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made a loss. The contention on behalf of the appellant is that it would not be open to an Industrial Court to grant bonus when profit was not adequate to meet all prior charges or where there was an actual loss and therefore when the impugned notification made it possible for grant of bonus even in these cases (for prima facie the appellant had made losses upto 1955), it directed something which even an Industrial Court could not do. In consequence, it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under S. 114 (2) because it allows something to be done which even an Industrial Court could not allow. Reliance in this connection is placed on the decision of this Court in New Manekchowk Spng. Co. Ltd. v. Textile Labour Association. C. As. Nos. 351-356 and 358-359 of 1960, D/- 7-12-1960 : (AIR 1961 SC 867). In that case this Court was considering a similar agreement relating to Ahmedabad. The Industrial Court had imposed that agreement after its expiry for one year on the mills in spite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in Associated Cement Companies Ltd. v. The Workmen, 1959 S C R 925 : (AIR 1959 SC 67). After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) the Industrial Court had no jurisdiction to impose that agreement on the mills. It further held that an agreement of that kind could only continue by consent of parties and could not be enforced by industrial adjudication against the will of any of the parties. The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in New Menekchowk case, AIR 1961 SC 867 it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under S. 114 (2) being co-terminous with the power the an adjudicator under the Act, such an agreement cannot therefore be directed to be enforced against the will of the appellant even under S. 114 (2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114 (2) and must therefore be struck down. | 1[ds]4. We do not think it necessary for purposes of the present appeal to consider the constitutionality of S. 114 (2), for we have come to the conclusion that the notification is bad because it goes beyond the powers conferred on the State Government by thatfirst limitation arises out of the subject-matter of the agreement etc., to be extended. Suppose the agreement etc., deal with (let us say) the wages of a certain type of workmen in a certain mill. Suppose that the agreement etc., are extended to another mill where that type of workmen does not exist. Obviously the agreement cannot be extended in these circumstances and the power of the State Government is thus limited by the subject-matter of the agreement etc.6. The second limitation which again is obvious arises from the provisions of law. The proviso to S. 114 (2) shows that before exercising its power under the said section the Government can refer the matter to an Industrial Court and there can be no doubt that an Industrial Court cannot and will not advise anything against the law. Section 95-A makes the determination of any question of law in any order, decision, award or declaration passed or made, by the Full Bench of the Industrial Court under the regulations made under S. 92 binding in all proceedings under the Act. What is done under S. 114 (2) is also a proceeding under the Act after notice to the parties affected. The State Government is thus bound by any decision on a question of law while proceeding under S. 114 (2). The policy of the Act underlying S. 95-A therefore leads to the conclusion that the exercise of power conferred by S. 114 (2) has to be in conformity with the industrial law laid down by the Full Bench of the Industrial Court and also by any decision of this Court. The State Government therefore when it passes an order under S. 114 (2) must have full regard to the law as laid down by the legislature and by the decisions of this Court and cannot pass an order under S. 114 (2) which is against such law. Besides, S. 114 (2) places a registered agreement, a settlement, a submission and an award on the same footing and so if an award has to conform to S. 95-A as it must so must the other three mentioned therein. Therefore, when the State Government acts under S. 114 (2) it can only do as between the parties before it what a labour court, an Industrial Court or a wage board can in law do under the Act. We do not think that S. 114 (2) authorities the State Government to act against the law as laid down by the legislature or by this Court. Section 114 (2) therefore appears to be speedy remedy (dispensing with all appeals provided under the Act) by which the State Government may direct that the terms and conditions of employment in the matter of wages, hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party. There can be no doubt, however that the State Government cannot do under S. 114 (2) what an adjudicator has no power to award under the provisions of the Act. Therefore, as we read S. 114 (2) we cannot escape the conclusion that the State Governments power to make a direction under that section is co-terminous with the power of an adjudicator (be it a labor court, an Industrial Court or a wage board under the Act) to make an award thereunder, and the State Government cannot under S. 114 (2) do what an adjudicator cannot do under the Act.By this notification the State Government has directed that the award dated March 13, 1956, made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 (both inclusive). It is not in dispute that the said award was based on an agreement between the Mill-owners Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay. The said agreement provided that it would have to be signed by each member mill of the Mill-owners Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill-owners Association never signed it. Further cl. (6) of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full-Bench formula and also in cases where a mill had made actual loss on the years working, subject to a proviso as to adjustment. Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made aagreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in New Menekchowk case, AIR 1961 SC 867 it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under S. 114 (2) being co-terminous with the power the an adjudicator under the Act, such an agreement cannot therefore be directed to be enforced against the will of the appellant even under S. 114 (2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114 (2) and must therefore be struck down. | 1 | 2,457 | 1,109 | ### Instruction:
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against such law. Besides, S. 114 (2) places a registered agreement, a settlement, a submission and an award on the same footing and so if an award has to conform to S. 95-A as it must so must the other three mentioned therein. Therefore, when the State Government acts under S. 114 (2) it can only do as between the parties before it what a labour court, an Industrial Court or a wage board can in law do under the Act. We do not think that S. 114 (2) authorities the State Government to act against the law as laid down by the legislature or by this Court. Section 114 (2) therefore appears to be speedy remedy (dispensing with all appeals provided under the Act) by which the State Government may direct that the terms and conditions of employment in the matter of wages, hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party. There can be no doubt, however that the State Government cannot do under S. 114 (2) what an adjudicator has no power to award under the provisions of the Act. Therefore, as we read S. 114 (2) we cannot escape the conclusion that the State Governments power to make a direction under that section is co-terminous with the power of an adjudicator (be it a labor court, an Industrial Court or a wage board under the Act) to make an award thereunder, and the State Government cannot under S. 114 (2) do what an adjudicator cannot do under the Act. This being the ambit of the State Governments power in respect of giving a direction under S. 114 (2), let us now proceed to see whether the impugned notification is within the ambit of these powers.7. By this notification the State Government has directed that the award dated March 13, 1956, made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 (both inclusive). It is not in dispute that the said award was based on an agreement between the Mill-owners Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay. The said agreement provided that it would have to be signed by each member mill of the Mill-owners Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill-owners Association never signed it. Further cl. (6) of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full-Bench formula and also in cases where a mill had made actual loss on the years working, subject to a proviso as to adjustment. Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made a loss. The contention on behalf of the appellant is that it would not be open to an Industrial Court to grant bonus when profit was not adequate to meet all prior charges or where there was an actual loss and therefore when the impugned notification made it possible for grant of bonus even in these cases (for prima facie the appellant had made losses upto 1955), it directed something which even an Industrial Court could not do. In consequence, it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under S. 114 (2) because it allows something to be done which even an Industrial Court could not allow. Reliance in this connection is placed on the decision of this Court in New Manekchowk Spng. Co. Ltd. v. Textile Labour Association. C. As. Nos. 351-356 and 358-359 of 1960, D/- 7-12-1960 : (AIR 1961 SC 867). In that case this Court was considering a similar agreement relating to Ahmedabad. The Industrial Court had imposed that agreement after its expiry for one year on the mills in spite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in Associated Cement Companies Ltd. v. The Workmen, 1959 S C R 925 : (AIR 1959 SC 67). After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) the Industrial Court had no jurisdiction to impose that agreement on the mills. It further held that an agreement of that kind could only continue by consent of parties and could not be enforced by industrial adjudication against the will of any of the parties. The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in New Menekchowk case, AIR 1961 SC 867 it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under S. 114 (2) being co-terminous with the power the an adjudicator under the Act, such an agreement cannot therefore be directed to be enforced against the will of the appellant even under S. 114 (2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114 (2) and must therefore be struck down.
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### Explanation:
necessary for purposes of the present appeal to consider the constitutionality of S. 114 (2), for we have come to the conclusion that the notification is bad because it goes beyond the powers conferred on the State Government by thatfirst limitation arises out of the subject-matter of the agreement etc., to be extended. Suppose the agreement etc., deal with (let us say) the wages of a certain type of workmen in a certain mill. Suppose that the agreement etc., are extended to another mill where that type of workmen does not exist. Obviously the agreement cannot be extended in these circumstances and the power of the State Government is thus limited by the subject-matter of the agreement etc.6. The second limitation which again is obvious arises from the provisions of law. The proviso to S. 114 (2) shows that before exercising its power under the said section the Government can refer the matter to an Industrial Court and there can be no doubt that an Industrial Court cannot and will not advise anything against the law. Section 95-A makes the determination of any question of law in any order, decision, award or declaration passed or made, by the Full Bench of the Industrial Court under the regulations made under S. 92 binding in all proceedings under the Act. What is done under S. 114 (2) is also a proceeding under the Act after notice to the parties affected. The State Government is thus bound by any decision on a question of law while proceeding under S. 114 (2). The policy of the Act underlying S. 95-A therefore leads to the conclusion that the exercise of power conferred by S. 114 (2) has to be in conformity with the industrial law laid down by the Full Bench of the Industrial Court and also by any decision of this Court. The State Government therefore when it passes an order under S. 114 (2) must have full regard to the law as laid down by the legislature and by the decisions of this Court and cannot pass an order under S. 114 (2) which is against such law. Besides, S. 114 (2) places a registered agreement, a settlement, a submission and an award on the same footing and so if an award has to conform to S. 95-A as it must so must the other three mentioned therein. Therefore, when the State Government acts under S. 114 (2) it can only do as between the parties before it what a labour court, an Industrial Court or a wage board can in law do under the Act. We do not think that S. 114 (2) authorities the State Government to act against the law as laid down by the legislature or by this Court. Section 114 (2) therefore appears to be speedy remedy (dispensing with all appeals provided under the Act) by which the State Government may direct that the terms and conditions of employment in the matter of wages, hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party. There can be no doubt, however that the State Government cannot do under S. 114 (2) what an adjudicator has no power to award under the provisions of the Act. Therefore, as we read S. 114 (2) we cannot escape the conclusion that the State Governments power to make a direction under that section is co-terminous with the power of an adjudicator (be it a labor court, an Industrial Court or a wage board under the Act) to make an award thereunder, and the State Government cannot under S. 114 (2) do what an adjudicator cannot do under the Act.By this notification the State Government has directed that the award dated March 13, 1956, made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 (both inclusive). It is not in dispute that the said award was based on an agreement between the Mill-owners Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay. The said agreement provided that it would have to be signed by each member mill of the Mill-owners Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill-owners Association never signed it. Further cl. (6) of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full-Bench formula and also in cases where a mill had made actual loss on the years working, subject to a proviso as to adjustment. Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made aagreement in the present case directed to be enforced by the impugned notification is similar in terms and as held in New Menekchowk case, AIR 1961 SC 867 it could not be enforced by industrial adjudication against the will of any of the parties. The power of the State Government under S. 114 (2) being co-terminous with the power the an adjudicator under the Act, such an agreement cannot therefore be directed to be enforced against the will of the appellant even under S. 114 (2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section. The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under S. 114 (2) and must therefore be struck down.
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Chandra Bhushan & Anr Vs. Deputy Director Of Consolidation (Regional), U.P. & Ors | the principles laid down by the High Court." Against the order of the High Court, this peal is preferred with special leave. 2. The High Court of Allahabad has not framed any rule prescribing a period of limitation for filing petition for writs of certiorari under Art. 226 of the Constitution. Ordinarily in the absence of a specific statutory rule, the High Court may be justified in rejecting a petition for a writ of certiorari against the judgment of a subordinate Court or tribunal, if on a consideration of all the circumstances, it appears that there is undue delay . But the aggrieved party should have a reasonable time within which to move the High Court for certiorari. Sometimes it has been suggested that the remedy by certiorari is in the nature of that afforded by writ of error, it will not be issued, or if issued will be quashed or superseded, where, in the absence of special facts or circumstances excusing the delay, the application is not made until after the time within which a writ of error must be prosecuted has elapsed: see Ferris and Ferries-"Extraordinary Legal Remedies" p. 202. 3. The Allahabad High Court in Mongey v. Board of Revenue, U. P. Allahabad, AIR 1957 All 47 , has consistently with that view laid down the practice that "writ petitions under Art. 226 of the Constitution should be filed as quickly, after the delivery of judgment of the inferior tribunal, as possible. A period of 90 days, which is the period fixed for appeals to the High Court from the judgments of Courts below, should be taken as the period for application for the issue of a writ of certiorari, and that time can be extended only when circumstances of a special nature, which are sufficient in the opinion of the Court, are shown to exist." But in the absence of a statutory rule the period prescribed for preferring an appep1 to the High Court is a rough measure: in each case the primary question is whether the applicant has been guilty of laches or undue delay. A rule of practice cannot prescribe a binding rule of limitation: it may only indicate how discretion will be exercised by the Court in determining whether having regard to the circumstances of the case, the applicant has been guilty of laches or undue delay. 4. In the present case the order of the deputy Director of Consolidation was made on July 15, 1961, and a petition for review of that order was rejected on September 22, 1961. The appellants had to secure certified copies of the impugned orders, and under the rules of the High Court they had to serve upon the Standing Counsel to the State of Utter Pradesh a notice of the intention to move a petition before the High Court. Taking into consideration these two periods, the appellants could have, according to the practice of the High Court, moved the petition on November 7, 1961. But the petition was moved on November 13, 1961, D. C. Mathur, J., rejected the petition being apparently of the opinion that the rule of practice prescribed a rule of limitation. The learned Judge did not consider whether on a review of the circumstances the appellants were guilty of laches or undue delay. In appeal, the High Court affirmed the order. 5. There are certain special circumstances which would have normally justified the Court in not insisting upon strict compliance even with its own rule of practice. Originally November 7, 1961 was declared a Working day by the High Court, but by notice issued by the Court on November 7, 1961, the High Court and its offices were, without previous intimation, closed some time about mid-day for the Diwali holidays, and the Court and its offices re-opened on November 13, 1961. The petition which was intended to be filed in the High Court was sworn on October 12, 1961, and an Advocate had, it appears, been engaged by the appellants to lodge the petition, and notice as required by the rules of the High Court was served upon the Standing Counsel. There is no reason to think that the appellants would not have presented the petition on November 7, 1961 if the offices of the High Court were not closed at 1-00 P.M. 6. The rule which has been laid down in Mongeys case, AIR 1957 All 47 , is at best a rule of practice, and not a rule of limitation. It is true that normally the question whether a petition under Art. 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court. 7. But in the present case, there are special circumstances, which justify departure from the rules (i) that Mathur. J. regarded the rule of practice as a rule of limitation (ii) that the offices of the High Court were ordered to be closed at 1-00 P.M. on November 7. 1961, even though originally November 7, 1961 was declared a working day; and (ii) the appellants had completed all preliminary steps for filing the petition before November 7, 1961. These circumstances have not been considered by Mathur, J., nor have they been considered by the High Court. They appear to have exalted a rule of practice into a rule of limitation, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of laches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety days, there is nothing which indicates that the appellants were guilty, of laches or undue delay. nor are there grounds which justified the High Court in holding that it would be unjust to permit a departure from the practice of the Court. 8. | 1[ds]In the present case the order of the deputy Director of Consolidation was made on July 15, 1961, and a petition for review of that order was rejected on September 22, 1961. The appellants had to secure certified copies of the impugned orders, and under the rules of the High Court they had to serve upon the Standing Counsel to the State of Utter Pradesh a notice of the intention to move a petition before the High Court. Taking into consideration these two periods, the appellants could have, according to the practice of the High Court, moved the petition on November 7, 1961. But the petition was moved on November 13, 1961, D. C. Mathur, J., rejected the petition being apparently of the opinion that the rule of practice prescribed a rule of limitation. The learned Judge did not consider whether on a review of the circumstances the appellants were guilty of laches or undue delay. In appeal, the High Court affirmed the orderThere are certain special circumstances which would have normally justified the Court in not insisting upon strict compliance even with its own rule of practice. Originally November 7, 1961 was declared a Working day by the High Court, but by notice issued by the Court on November 7, 1961, the High Court and its offices were, without previous intimation, closed some time about mid-day for the Diwali holidays, and the Court and its offices re-opened on November 13, 1961. The petition which was intended to be filed in the High Court was sworn on October 12, 1961, and an Advocate had, it appears, been engaged by the appellants to lodge the petition, and notice as required by the rules of the High Court was served upon the Standing Counsel. There is no reason to think that the appellants would not have presented the petition on November 7, 1961 if the offices of the High Court were not closed at 1-00 P.MThe rule which has been laid down in Mongeys case, AIR 1957 All 47 , is at best a rule of practice, and not a rule of limitation. It is true that normally the question whether a petition under Art. 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court.But in the present case, there are special circumstances, which justify departure from the rules (i) that Mathur. J. regarded the rule of practice as a rule of limitation (ii) that the offices of the High Court were ordered to be closed at 1-00 P.M. on November 7. 1961, even though originally November 7, 1961 was declared a working day; and (ii) the appellants had completed all preliminary steps for filing the petition before November 7, 1961. These circumstances have not been considered by Mathur, J., nor have they been considered by the High Court. They appear to have exalted a rule of practice into a rule of limitation, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of laches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety days, there is nothing which indicates that the appellants were guilty, of laches or undue delay. nor are there grounds which justified the High Court in holding that it would be unjust to permit a departure from the practice of the Court. | 1 | 1,372 | 665 | ### Instruction:
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the principles laid down by the High Court." Against the order of the High Court, this peal is preferred with special leave. 2. The High Court of Allahabad has not framed any rule prescribing a period of limitation for filing petition for writs of certiorari under Art. 226 of the Constitution. Ordinarily in the absence of a specific statutory rule, the High Court may be justified in rejecting a petition for a writ of certiorari against the judgment of a subordinate Court or tribunal, if on a consideration of all the circumstances, it appears that there is undue delay . But the aggrieved party should have a reasonable time within which to move the High Court for certiorari. Sometimes it has been suggested that the remedy by certiorari is in the nature of that afforded by writ of error, it will not be issued, or if issued will be quashed or superseded, where, in the absence of special facts or circumstances excusing the delay, the application is not made until after the time within which a writ of error must be prosecuted has elapsed: see Ferris and Ferries-"Extraordinary Legal Remedies" p. 202. 3. The Allahabad High Court in Mongey v. Board of Revenue, U. P. Allahabad, AIR 1957 All 47 , has consistently with that view laid down the practice that "writ petitions under Art. 226 of the Constitution should be filed as quickly, after the delivery of judgment of the inferior tribunal, as possible. A period of 90 days, which is the period fixed for appeals to the High Court from the judgments of Courts below, should be taken as the period for application for the issue of a writ of certiorari, and that time can be extended only when circumstances of a special nature, which are sufficient in the opinion of the Court, are shown to exist." But in the absence of a statutory rule the period prescribed for preferring an appep1 to the High Court is a rough measure: in each case the primary question is whether the applicant has been guilty of laches or undue delay. A rule of practice cannot prescribe a binding rule of limitation: it may only indicate how discretion will be exercised by the Court in determining whether having regard to the circumstances of the case, the applicant has been guilty of laches or undue delay. 4. In the present case the order of the deputy Director of Consolidation was made on July 15, 1961, and a petition for review of that order was rejected on September 22, 1961. The appellants had to secure certified copies of the impugned orders, and under the rules of the High Court they had to serve upon the Standing Counsel to the State of Utter Pradesh a notice of the intention to move a petition before the High Court. Taking into consideration these two periods, the appellants could have, according to the practice of the High Court, moved the petition on November 7, 1961. But the petition was moved on November 13, 1961, D. C. Mathur, J., rejected the petition being apparently of the opinion that the rule of practice prescribed a rule of limitation. The learned Judge did not consider whether on a review of the circumstances the appellants were guilty of laches or undue delay. In appeal, the High Court affirmed the order. 5. There are certain special circumstances which would have normally justified the Court in not insisting upon strict compliance even with its own rule of practice. Originally November 7, 1961 was declared a Working day by the High Court, but by notice issued by the Court on November 7, 1961, the High Court and its offices were, without previous intimation, closed some time about mid-day for the Diwali holidays, and the Court and its offices re-opened on November 13, 1961. The petition which was intended to be filed in the High Court was sworn on October 12, 1961, and an Advocate had, it appears, been engaged by the appellants to lodge the petition, and notice as required by the rules of the High Court was served upon the Standing Counsel. There is no reason to think that the appellants would not have presented the petition on November 7, 1961 if the offices of the High Court were not closed at 1-00 P.M. 6. The rule which has been laid down in Mongeys case, AIR 1957 All 47 , is at best a rule of practice, and not a rule of limitation. It is true that normally the question whether a petition under Art. 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court. 7. But in the present case, there are special circumstances, which justify departure from the rules (i) that Mathur. J. regarded the rule of practice as a rule of limitation (ii) that the offices of the High Court were ordered to be closed at 1-00 P.M. on November 7. 1961, even though originally November 7, 1961 was declared a working day; and (ii) the appellants had completed all preliminary steps for filing the petition before November 7, 1961. These circumstances have not been considered by Mathur, J., nor have they been considered by the High Court. They appear to have exalted a rule of practice into a rule of limitation, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of laches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety days, there is nothing which indicates that the appellants were guilty, of laches or undue delay. nor are there grounds which justified the High Court in holding that it would be unjust to permit a departure from the practice of the Court. 8.
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### Explanation:
In the present case the order of the deputy Director of Consolidation was made on July 15, 1961, and a petition for review of that order was rejected on September 22, 1961. The appellants had to secure certified copies of the impugned orders, and under the rules of the High Court they had to serve upon the Standing Counsel to the State of Utter Pradesh a notice of the intention to move a petition before the High Court. Taking into consideration these two periods, the appellants could have, according to the practice of the High Court, moved the petition on November 7, 1961. But the petition was moved on November 13, 1961, D. C. Mathur, J., rejected the petition being apparently of the opinion that the rule of practice prescribed a rule of limitation. The learned Judge did not consider whether on a review of the circumstances the appellants were guilty of laches or undue delay. In appeal, the High Court affirmed the orderThere are certain special circumstances which would have normally justified the Court in not insisting upon strict compliance even with its own rule of practice. Originally November 7, 1961 was declared a Working day by the High Court, but by notice issued by the Court on November 7, 1961, the High Court and its offices were, without previous intimation, closed some time about mid-day for the Diwali holidays, and the Court and its offices re-opened on November 13, 1961. The petition which was intended to be filed in the High Court was sworn on October 12, 1961, and an Advocate had, it appears, been engaged by the appellants to lodge the petition, and notice as required by the rules of the High Court was served upon the Standing Counsel. There is no reason to think that the appellants would not have presented the petition on November 7, 1961 if the offices of the High Court were not closed at 1-00 P.MThe rule which has been laid down in Mongeys case, AIR 1957 All 47 , is at best a rule of practice, and not a rule of limitation. It is true that normally the question whether a petition under Art. 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court.But in the present case, there are special circumstances, which justify departure from the rules (i) that Mathur. J. regarded the rule of practice as a rule of limitation (ii) that the offices of the High Court were ordered to be closed at 1-00 P.M. on November 7. 1961, even though originally November 7, 1961 was declared a working day; and (ii) the appellants had completed all preliminary steps for filing the petition before November 7, 1961. These circumstances have not been considered by Mathur, J., nor have they been considered by the High Court. They appear to have exalted a rule of practice into a rule of limitation, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of laches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety days, there is nothing which indicates that the appellants were guilty, of laches or undue delay. nor are there grounds which justified the High Court in holding that it would be unjust to permit a departure from the practice of the Court.
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M/S. Northern India Iron & Steel Co Etc. A Vs. State Of Haryana & Anr | we were to hold that for the Boards inability to supply a fraction of the consumers demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure. But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub-clause (f) of clause 4 of the tariff. It is, therefore, not necessary to resolve the extreme stand taken on either side.Under clause 4(f) the consumer is entitled to a proportionate reduction of demand charges in the event of lock-out, fire or any other circumstances considered by the supplier beyond the control of the consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge. The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act, undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract. And this was circumstance which was beyond its control and could not be considered otherwise by the Board. It entitled the consumer to a proportionate reduction of the demand charges. This interpretation of sub clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands. In our opinion it is so. In a circumstance like this, it is plain , the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days duration. 7. We are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume. The monthly demand charge for a particular month will have to be assessed in accordance with sub-clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub-clause (f). We hope, in the light of the judgment, there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.Coming to the question of duty, we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff. 8. Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified therein. On the basis of the said express ion the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy supplied. Such an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. This is made further, clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958. Sub-rule (1) says: The duty under clause (iii) and (iv) of sub-section (1) of section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the Supply is governed by a two-part tariff. It is therefore, manifest that the duty under the Duty Act is chargeable not only on the energy charge but also on the demand charge when the supply is governed by two-part tariff and it is chargeable on the actual amount of demand charge realisable from the consumer 9. | 1[ds]Such an extreme stand on either side appeared to us a bit puzzling and leading to inequitable results. The difficulty was not easy to solve. If we were to hold that for the Boards inability to supply a fraction of the consumers demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure. But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub-clause (f) of clause 4 of the tariff. It is, therefore, not necessary to resolve the extreme stand taken on either side.Under clause 4(f) the consumer is entitled to a proportionate reduction of demand charges in the event of lock-out, fire or any other circumstances considered by the supplier beyond the control of the consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge. The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act, undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract. And this was circumstance which was beyond its control and could not be considered otherwise by the Board. It entitled the consumer to a proportionate reduction of the demand charges. This interpretation of sub clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands. In our opinion it is so. In a circumstance like this, it is plain , the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days durationWe are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume. The monthly demand charge for a particular month will have to be assessed in accordance with sub-clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub-clause (f). We hope, in the light of the judgment, there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.Coming to the question of duty, we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariffSection 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified thereinSuch an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. | 1 | 2,766 | 931 | ### 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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we were to hold that for the Boards inability to supply a fraction of the consumers demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure. But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub-clause (f) of clause 4 of the tariff. It is, therefore, not necessary to resolve the extreme stand taken on either side.Under clause 4(f) the consumer is entitled to a proportionate reduction of demand charges in the event of lock-out, fire or any other circumstances considered by the supplier beyond the control of the consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge. The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act, undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract. And this was circumstance which was beyond its control and could not be considered otherwise by the Board. It entitled the consumer to a proportionate reduction of the demand charges. This interpretation of sub clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands. In our opinion it is so. In a circumstance like this, it is plain , the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days duration. 7. We are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume. The monthly demand charge for a particular month will have to be assessed in accordance with sub-clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub-clause (f). We hope, in the light of the judgment, there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.Coming to the question of duty, we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff. 8. Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified therein. On the basis of the said express ion the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy supplied. Such an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. This is made further, clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958. Sub-rule (1) says: The duty under clause (iii) and (iv) of sub-section (1) of section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the Supply is governed by a two-part tariff. It is therefore, manifest that the duty under the Duty Act is chargeable not only on the energy charge but also on the demand charge when the supply is governed by two-part tariff and it is chargeable on the actual amount of demand charge realisable from the consumer 9.
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Such an extreme stand on either side appeared to us a bit puzzling and leading to inequitable results. The difficulty was not easy to solve. If we were to hold that for the Boards inability to supply a fraction of the consumers demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure. But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub-clause (f) of clause 4 of the tariff. It is, therefore, not necessary to resolve the extreme stand taken on either side.Under clause 4(f) the consumer is entitled to a proportionate reduction of demand charges in the event of lock-out, fire or any other circumstances considered by the supplier beyond the control of the consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge. The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act, undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract. And this was circumstance which was beyond its control and could not be considered otherwise by the Board. It entitled the consumer to a proportionate reduction of the demand charges. This interpretation of sub clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands. In our opinion it is so. In a circumstance like this, it is plain , the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days durationWe are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume. The monthly demand charge for a particular month will have to be assessed in accordance with sub-clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub-clause (f). We hope, in the light of the judgment, there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.Coming to the question of duty, we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariffSection 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified thereinSuch an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge.
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Delhi Development Authority Vs. Diwan Chand Anand & Ors | before or by the Court which passed it. Thus, as observed and held by the Court: (i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives; (ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2); (iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant; (iv) the provision of Order 22 shall also apply to the appeal proceedings also. 9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents. 9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted as observed hereinabove, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents – the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers and for and on behalf of all the co- owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act. 9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs – two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others – more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co- sharers – defendants – respondents in appeal the appeal would abate as a whole. 9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove. 9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the learned Trial Court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the appellant - DDA – the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then, another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The aforesaid aspect is also required to be determined. 9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case. | 1[ds]At this stage, it is required to be noted that there was a delay in preferring the Review Application which came to be condoned by the High Court. That subsequently the appellant herein – DDA – original appellant, preferred the present two appeals, one, challenging the original order dated 09.07.2007 dismissing the appeal as a whole as having abated and the second, challenging the order dismissing the review application. It is sought to be contended on or behalf of the contesting respondents that there is a huge delay in preferring the appeal challenging the order dated 09.07.2007 and therefore present Appeal may not be entertained. However, the appellant was bona fide prosecuting the review application. That after dismissal of the review application in which the appellant prayed to review and recall the order dated 09.07.2007, that the appellant has preferred two separate appeals, one, challenging the dismissal of the review application and another, challenging the original order dated 09.07.2007. Therefore, once the appellant was bona fide prosecuting the review application, it was justified in waiting for the outcome of the Review Application. If, without waiting for the outcome of the review application, the appellant would have preferred the appeal at that stage, the appellant would have been non- suited on the ground of the pendency of the review application and the appellant would have been told to wait till the outcome of the review application. Therefore, in the facts and circumstances of the case the time taken in prosecuting the review application is to be excluded and the appeal preferred challenging the order dated 09.07.2007 is to be considered on merits. Therefore, the objection on behalf of the contesting respondents not to consider the substantive appeal challenging the order dated 09.07.2007 on merits is hereby overruled and we may proceed to consider the order dated 09.07.2007 dismissing the appeal as a whole as having abated on merits.8.4 Thus, from the aforesaid it can be seen that the original plaintiffs – two co-owners/co-sharers of the entire land in question fought with respect to the entire land belonging to the plaintiffs and the co-owners jointly. It can be said that the original plaintiffs instituted the suit for themselves as well as for and/or on behalf of the other co-owners – co-sharers with respect to the entire land jointly owned by all of them. Thus, it can safely be held that the entire estate was represented through original plaintiffs in which even the co-sharers/co- owners were also joined as defendants as proper parties. Therefore, even when the learned Trial Court passed the judgment and decree, it passed the judgment and decree with respect to the entire land and even granted the permanent injunction to protect the ownership and protection of the plaintiffs as well as the other co-sharers over the suit land. In light of the above factual scenario the order passed by the High Court dated 09.07.2007 in dismissing the first appeal as a whole as having been abated on not taking step to bring on record the legal representatives of some of the original defendants/respondents in the appeal is required to be tested and/or considered in light of the settled legal principles.9. While considering the impugned order passed by the High Court dated 09.07.2007, dismissing the appeal as having abated, the law on abatement and on Order 22 CPC is required to be discussed. Order 22 CPC fell for consideration before this Court in the recent decision in the case of Venigalla Koteswaramman (supra) in which this Court considered in detail the earlier decisions of this Court in the case of Nathu Ram (supra) as well as the other decisions including the later decision in the case of Hemareddi (supra). The relevant discussion on Order 22 CPC in paragraphs 42 to 44.8 are extracted as under:42. The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions contained in Order 22 of the Code.42.1. Though the provisions in Rule 1 to Rule 10- A of Order 22 primarily refer to the proceedings in a suit but, by virtue of Rule 11, the said provisions apply to the appeals too and, for the purpose of an appeal, the expressions plaintiff, defendant and suit could be read as appellant, respondent and appeal respectively.42.2. Rule 1 of Order 22 of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives.42.3. Rule 2 of Order 22 of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be.42.4. However, by virtue of Rule 4 read with Rule 11 of Order 22 of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent.42.5. Of course, the provisions have been made for dealing with the application for substitution filed belatedly but the same need not be elaborated in the present case because it remains an admitted fact that no application for substitution of legal representatives of Defendant 2 (who was Respondent 3 in AS No. 1887 of 1988) was made before the High Court.42.6. The relevant provisions contained in Rules 1, 2, sub-rules (1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could be usefully reproduced as under1. No abatement by partys death, if right to sue survives.—The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.— Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.4. Procedure in case of death of one of several defendants or of sole defendant.—(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.11. Application of Order to appeals.—In the application of this Order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word defendant a respondent, and the word suit an appeal.43. For determining if Order 22 Rule 2 could apply, we have to examine if right to sue survived against the surviving respondents. It is not the case that no legal heirs were available for Defendant 2. It is also not the case where the estate of the deceased Defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Order 22 Rule 2 CPC is clearly ruled out.44. Admittedly, steps were not taken for substitution of the legal representatives of Defendant 2, who was Respondent 3 in AS No. 1887 of 1988. Therefore, sub-rule (3) of Rule 4 of Order 22 of the Code directly came into operation and the said appeal filed by Defendants 16 to 18 abated against Defendant 2 (Respondent 3 therein). We may profitably recapitulate at this juncture that in fact, the other appeal filed by Defendants 4, 13 and 14 (AS No. 1433 of 1989) was specifically dismissed by the High Court as against the deceased Defendant 2 on 25-4-2006.44.1. Once it is found that the appeal filed by Defendants 16 to 18 abated as against Defendant 2 (Respondent 3), the question arises as to whether that appeal could have proceeded against the surviving respondents i.e. the plaintiff and Defendants 1 and 3 (who were Respondents 1, 2 and 4). For dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in case of multiple respondents, as enunciated and explained by this Court.44.2. The relevant principles were stated and explained in depth by this Court in State of Punjab v. Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ]. In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept the compensation offered, their joint claim was referred to arbitration and an award was passed in their favour that was challenged by the State Government in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on record his legal representatives. The High Court dismissed [Province of East Punjab v. Labhu Ram, 1954 SCC OnLine P&H 132] the appeal while observing that it had abated against the deceased brother and consequently, abated against the surviving brother too. The order so passed by the High Court was questioned before this Court in appeal by certificate of fitness.44.3. While dismissing the appeal and affirming the views of the High Court, this Court in Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ] enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic reason being that in the absence of the legal representatives of deceased respondent, the appellate court cannot determine between the appellant and the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the deceased respondent, the decree between the appellant and the deceased respondent becomes final and the appellate court cannot, in any way modify that decree, directly or indirectly.44.4. The Court observed in that case, inter alia, as under: (Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ] , AIR pp. 90-91, paras 4-6 & 8)4. It is not disputed that in view of Order 22 Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co- respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the courts coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court; and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.9.1 After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba and Others, (2003) 3 SCC 272, it is observed by this Court that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court which passed it.Thus, as observed and held by the Court:(i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives;(ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2);(iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant;(iv) the provision of Order 22 shall also apply to the appeal proceedings also.9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents.9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted as observed hereinabove, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents – the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers and for and on behalf of all the co- owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act.9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs – two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others – more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co- sharers – defendants – respondents in appeal the appeal would abate as a whole.9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove.9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the learned Trial Court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the appellant - DDA – the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then, another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The aforesaid aspect is also required to be determined.9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case. | 1 | 9,849 | 4,325 | ### 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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before or by the Court which passed it. Thus, as observed and held by the Court: (i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives; (ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2); (iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant; (iv) the provision of Order 22 shall also apply to the appeal proceedings also. 9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents. 9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted as observed hereinabove, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents – the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers and for and on behalf of all the co- owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act. 9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs – two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others – more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co- sharers – defendants – respondents in appeal the appeal would abate as a whole. 9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove. 9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the learned Trial Court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the appellant - DDA – the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then, another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The aforesaid aspect is also required to be determined. 9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case.
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being one or the manner in which it was dealt with before or by the Court which passed it.Thus, as observed and held by the Court:(i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives;(ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2);(iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant;(iv) the provision of Order 22 shall also apply to the appeal proceedings also.9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents.9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted as observed hereinabove, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents – the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers and for and on behalf of all the co- owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act.9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs – two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others – more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co- sharers – defendants – respondents in appeal the appeal would abate as a whole.9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove.9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the learned Trial Court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the appellant - DDA – the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then, another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The aforesaid aspect is also required to be determined.9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case.
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M.J. Export Ltd. and another Vs. The Customs, Excise & Gold Appellate Tribunal, Bombay and others | for use of diplomatic personnel...who are exempt from payment of duty...." This sub-clause was amended in 1985 to add the words "or otherwise" after the word "ships stores". The CEGAT has relied upon the amendment to draw an inference against the appellant that, since the goods do not fall under this clause, their export was not permitted. We think that this is not correct for the reasons we have pointed out in respect of clause 15(g) of the Export Control Order, 1988. To say that goods bonded for re-export as above will not be affected by the provisions of the order does not mean that goods, not so bonded, cannot be exported at all. Their export can be interdicted only if their is some other express or implicit prohibition in clause 3 of the Export Control Order or otherwise. (6) Reliance has also been placed by the Tribunal on clause 10 C of the Imports Control Order for rejecting the assessee s contentions. It is sufficient to extract sub- clause (1) of this clause which reads: "10C. Power to make directions for the sale of imported goods in certain cases - (1) Where, on the importation of any goods or at any time thereafter, the Chief Controller of Imports and Exports is satisfied after giving a reasonable opportunity to the licensee of being heard in the matter, that such goods cannot or should not be utilised for the purpose for which they were imported he may by order direct the importer of the goods (in case the goods were imported under Open General Licence or Special General Licence) or the licensee or any other persons having possession or control of such goods to sell such goods to such person within such time, at such price and in such manner as may be specified in the direction." The Tribunal agrees that the opinions or clarifications given by the CCIE in the present case are not directions under s.10C. But, apparently, their suggestion is that, if the appellant felt that the imported goods could not be utilised "for home consumption" or "for stock and sale in India" and there were sound reasons for exporting it to U.S.S.R., they could and should have obtained the directions of the CCIE permitting such sale. It is difficult to approve of this line of reasoning. The provision relied upon is one enabling the Import -Export Control authorities to interfere in any individual case where they find that the purpose of the import is not being achieved. It does not impose an obligation on an importer to seek the directions or the permission of the CCIE before exporting the goods if otherwise permissible. Moreover, as pointed out by learned counsel for the appellant, while clause 11(4) of the order which reads: "Nothing in this order except paragraph (iii) of sub-clause (3) of clause (5), clause 8, clause 8A, clause 8C and clause 10C, shall apply to the import of any goods covered by Open General Licence or Special General Licence issued by the Central Government". makes clause 10C applicable to the subject imports, it releases them form the application of the other restrictions and conditions on imports imposed by the Import Control Order. We think, however, that para 10C is of some indirect assistance in the present case. We may put it this way. The interpretation of the OGL that has commended itself to us (viz. that the import of the goods is permitted only for use in India) was also the one which the CCIE had formed and this opinion he had formulated in his two letter dated 10.10.1988 and 27.1.1989. As we have already pointed out, the CCIE s opinion on the Import and Export Control Order is final and binding. In view of this, when the CCIE came to know that the appellant was seeking to export the goods, he could have intervened and issued directions under clause 10C either permitting the export of the goods to the USSR or directing them to be sold to needy hospitals or other parties in India. He could have effectively stopped the export of the goods. This shows that the export of the goods is not free or unrestricted as made out by the learned counsel for the appellant. (7) Learned counsel for the Revenue also pointed out that the shipping bills called for a mention as to whether the goods of which export was sought were "free goods or India produce t o be exported or India Produce". The appellant did not strike off any of these descriptions as inappropriate. The customs authorities were given the impression that these were Indian goods that were being exported. Indeed, the appellant itself well knew that goods imported could not be exported as such without the performance of some operation of processing or manufacture in regard to them. That is why it put up a facade of taking the goods to Ankleshwar after their imp ort allegedly for being subjected to some processes. The customs officers, on verification, found that all this was untrue and that the appellant was surreptitiously trying to export imported goods, after just recapping them as goods of Indian manufacture. The appellant had adopted a similar subterfuge on the earlier occasion in December 1987 and succeeded in exporting like goods by not striking out the appropriate columns o f a shipping bill proforma which required the exporter to specify whether the goods were "Indian produce or foreign produce to be re-exported". It is, therefore, urged that the goods sought to be exported do not conform to the description in the bill of entry for export, attracting the provisions of clause 3(3) of the Export Control Order and, in turn, s.113(d) of the Act. There is some force in this contention but we express no opinion thereon as this was not the ground on which action was taken and it is a new ground, involving investigation of facts, taken for the first time before us. 25. | 0[ds]Leaving out of consideration the issue whetherthe appellant was entitled to exemption from customs duty on the import of the goods inquestion - an issue which was decided in favour of the assessee by the Collector of Customs and has not been pursued further and is not in issue beforeing thatthis contention of the Revenue is sound. The contrast that finds emphasis in the sections as well as forms above referred to is of clearance for home consumption as opposed to clearance for warehousing. The presentation of a bill of entry for home consumption only means that the importer does not intend to warehouse the goods; in the latter ca se, he is not required to pay the import duties, if any, immediately (ss.59 and 59A). The form of the Bill of Entry prescribed under the Act does not require any declaration from the importer as to the purpose for which the imported goods are required or that they will be used or sold only in India. The expression home consumption has also, in the context, no clear or definite meaning and raises a lot of conundrums if literally interpreted to mean that imported goods should always be consumed in India. Is it home consummations if the importer does not use the goods himself but sell them? At what point of time should the importer make up his mind whether he proposes to sell the imported goods in India or wishes to export them outside? Is the condition infringed if a purchaser of goods from the importer sells it to a buyer in a foreign country? Will it be permissible for the importer to use the imported goods in the manufacture of other goods which he proposes to export? All these uncertainties in the connotation of the expression home consumption preclude one from giving an interpretation to this expression that the imported goods cannot be at all exported and incline one to hold that, in the context, it is only used in contrast to the expression for waresabove general consideration apart, there are other indications in the statute which show that the Act does not prohibit the export of imported goods. The Act provides that that goods which are cleared from the customs area for warehousing can be cleared from the warehouse for home consumption (s.68) or exportation (s.69). At first blush, this may seem to support the Revenues interpretation that clearance for exportation and clearance for home consumption are two different things. It is indeed suggested by State counsel that, if an importer intends to export the imported goods, he should clear them for warehousing and then proceed in terms of s.69. But a little though would show this interpretation cannot be correct. In the first place, where an importer, even at the time of the import purchase has decided to sell the goods in another country (as in the present case), he may, as pointed out earlier, easily ask the goods to be transited or transshipped to the country of sale and thus avoid any necessity for their being at all cleared in India. But where, for one reason or other, he wants to import the goods into India and then sell them to the foreign country or where the importer decides on an export sale only after he has arranged for the import of the goods into India, the Act prescribes no form of a Bill of Entry under which he can clear such goods intended for re-export. It would not be correct to insist that he must clear them for warehousing and then export them by clearing from the warehouse. Whether to deposit the goods in a warehouse o r not is an option given to the importer. If he is able to pay the import duties and has his own place to stock the goods, he is entitled to take them away. But, where he has either some difficulty in payment of the duties or where he has no ready place to stock the goods before use or sale, he cannot clear the goods from the customs area. The warehouse in only a place which the importer, on payment of prescribed charges, is permitted to utilise for keeping the goods where he is not able to take the goods straightaway outside the customs area. There is nothing in the provisions of the Act to compel an importer even before or when importing the goods, to make up his mind whether he is going to use or sell them in India or whether he proposes to re-export them. Again, there may be cases where he has imported the goods for use or sale in India but subsequently receives an attractive offer which necessitates an export. It would make export trade difficult to say that he cannot accept the export offer as the goods, when importer, had been cleared for home consumption. S.69, therefore, should be only read as a provision setting out the procedure for export of warehoused goods and not as a provision which makes warehousing an imperative pre-condition for expiating the importedsecond reason for not reading ss.68 and 69 as supporting the Revenues interpretation is even more weighty. That interpretation would mean that imported good s can be re-exported after being warehoused for sometime (even a day or a few hours) but that they cannot be exportedan interpretation has no basis in logic or sense and makes mincemeat of the broader principle contended for by the Revenue that imports are intended for use in the country and not for export. Incidentally, we may observe that even this principle contended for by Revenue may itself be of doubtful validity as it is based on an erroneous assumption that a re-export of imported goods will always be detrimental to the country. It is true that, in the present case, the appellant has been criticised for having utilised valuable hard currency for the purchases and reselling the goods only for rupee consideration. But, conceivably, there may be cases where an importer is able to import goods from a soft-currency area and sell them in a hard-currency area earning foreign exchange for the country. It is also possible to think of cases w here, though economically unremunerative, the exports can be justified on considerations of international amity and goodwill such as for example, where the goods are exported to a country which is in dire need of help and assistance. The principle is also non-acceptable on the ground of vagueness as to the extent of its application to exports made after an interval or after changing several hands inside the country by way of sale. We are, therefore, unable to read ss.68 and 69 as supporting the Revenueshave considered this aspect of the matter carefully. The relevant OGL is the one dated 20/5/88 covered by Order No. 15/88-91 which refers in its Schedule to "Life-saving equipment appearing in List No.2 of Appendix-6 of Import and Export Policy, 198 8-91 (vol.1) and their spares". It also set out a number of conditions of grant of the OGL, the very first of which is that, except in the case of "teaching aids" covered by serial no.1, "all other items covered by the Schedule annexed to it may be imported by any person for stock and sale purposes". Prima facie, there appears to be no reason to confine this only to sales in India and as prohibiting the re-export of the imported goods from India. The interpretation of a condition in these terms came up for consideration, though not finally decided, in the case of Janak Photo Enterprises, relied upon for the appellant. In that case, the assessee had imported photographic colour films from Japan, cleared them for home consumption, and then presented them for export to Singapore. The customs authorities, relying upon a certificate of the CCIE analogous to the one in the present case, confiscated the goods under s.113(d) but allowed them to be re-exported on paymen t of a huge redemption fine, a penalty and payment of appropriate duty for ex-bond clearance. The assessee filed a writ petition challenging this order. Pending disposal of the writ, the High Court permitted the export of the goods subject to certain conditions. In doing so, the court made certain observations which, learned counsel for the appellant says, are equally apposite in the presentThe goods in question, being the photographic films (colour), fall under App.7, List 8, Part II, Serial No.41 of the Import and Export Policy, 1988- 91, and their import is allowed by all persons for actual use/stock and sale. The contention of Mr. aggarwal is that since the goods were imported for stock and sale, these could not be re-exported. We are unable to agree with the contention of Mr. Aggarwal or with the view taken by the respondents. Again, to us, the goods do not appear to be prohibitedare, therefore, of the opinion that, although there is no express prohibition, the re-export as such of items of goods specified in list 2 and imported into India is prohibited by necessary implication by the language of, and the scheme underlying, the grant of OGL in regard to them. It is difficult to agree that the import-export policy envisages the re-export of goods belonging to this category. The opinion of the CCIE is also to the same effect. This opinion also derives some binding effect from para 24(1) of the Import Policy read with par as 22 &23 of the Export Policy, which24(1): The interpretation given by the Chief Controller of Imports and Exports, New Delhi in the matter of interpretation of Import Policy and procedures shall be final and will prevail over any clarification given by any other authority and person in the same matter.Para 22: Cases for relaxation of existing policy and procedures where it creates genuine hardship or where a strict application of the existing policy is likely to affect exports adversely may be considered by the Chief Controller of Imports and Exports.Para 23: In matters relating to export, as well as the interpretation of export policy and procedures, the person concerned may address the Chief Controller of Imports and Exports, New Delhi for necessary advice. Any interpretation of the export policy given in any other manner or by any other person will not be binding on the Chief Controller of Imports and Exports, or inprincipal enunciated in the said decisions is that the court should construe the terms of the statutory provision or instrument before it and should not supply or introduce words which are not found therein to give effect to a possible intention behind the provision or instrument which is not borne out by the language used.But, as pointed out by this Court in Surjit Singh Kalra v. Union of India, 1991 (2) SCC 87 , "though it is not permissible to read words in a statute which are not there, where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words". The Court should construe a provision in a harmonious way to make it meaningful having regard to the context in which it appears. Here, we are only interpreting the language used and giving content and meaning to the classification and heading used in the order permitting imports under OGL in certain cases in the context of the provisions of the Imports and Exports Control A ct, 1947, as well as the orders and notifications issued thereunder we, therefore, do not find any force in the contention of Sriinto account all the above considerations, we hold that the goods in question were "prohibited " goods within the meaning of S.2(33) and that their confiscation under S.113(d) and the penalty under S.114 were fullyMuch emphasis has been laid by the counsel for the Revenue on the circumstance that the appellant had obtained the import of the goods free of duty by relying on the notification granting exemption from customs duty. It is obvious that it could not have been the intention of the legislature to grant exemption from customs duty in respect of vital goods of the nature in question in order that an importer may make profit by selling them abroad. The notification is, therefore, relevant for the issue before us to the limited extent that it lends supports to the construction of List 2 of Appendix 6 in the manner we have interpreted it. This apart, we are not concerned here with the questions whether the attempt of the assessee to export the goods (which has, in the event, been successful) would amount to an infringement of the conditions permitting the import so as to render either the import itself [vide s.111(0) of the Act] or the exemption from import duty or both illegal and invalid and, if so, the consequencesReference has been made on behalf of the Revenue to the foreign exchange loss incurred to the country by the import from a hard currency area and the export to a country which will pay for the goods only in rupees. We do not, however, think this argument or the foreign exchange regulations, to which some casual reference was made, have any relevance to the present issue. It is not the suggestion of the Revenue that there has been any infringement of the FERA in this case. Even if there had been, the consequences flowing from such infringement have to be worked out elsewhere. The issue before us is only that of the permissibility of the export, the destination of export being immaterial. As pointed out for the appellant and as indeed happened in Janak Photo Enterprises (supra) the export could well have been to a hard currency area in which event this objection of the Revenue would have had no force. But, on the ratio of our decision, an attempted export to such a country would have been equally objectionable. The goods were for use in this country, not in another.(3) During the pendency of the proceedings before the Collector, the appellants are said to have secured a no objection certificate of the RBI to the export "on humanitarian grounds" in view of the appellants representation that the goods were needed for the succour of the victims of the Armenian earthquake in Russia. There is no material before us regarding the date of the earthquake or to indicate t hat the purchase orders had been placed thereafter. We do not even know whether the earthquake was only a subsequent development taken advantage of by the assessee to have the goods cleared pending adjudication of issue by the Customs authorities. It is true that the goods, being in the nature of life-saving equipment, may have been eventually used only for that purpose in the country of export. But, if as we have held, the imports of the goods were intended for their use in India, this circumstance is of no assistance.Learned counsel has, however, contended that the exports have been made in pursuance of a mutual trade agreement between the Government of India and U.S.S.R. considered beneficial to both countries and hedged in with conditions ensuring the interests of both the countries and that this should be considered sufficient to justify the export. In our opinion, the mere fact that mutual trade was allowed between the two countries is not enough to hold that even goods of this type - which had been allowed to be imported with a specific end in view - could be exported. Learned counsel did not place the trade agreement or any material to show that it specifically provided for the export of goods of this nature to U.S.S.R. We have no doubt that the export of such goods may also endure to the benefit of India indirectly but, in the absence of anything to s how that the goods in question constituted one of the categories of goods specifically envisaged by the mutual trade agreement, it is not possible to override the prohibition implicit, as held by us, in the Import regulations.(4) The show cause notice referred to clause 15(g) of the Export Control Order, 1988. The said clause 15 is headed "savings" and it enumerates situations in which the Export Control order does not apply; in other words, it provides that, in certain circumstances, exports can be permitted even where such export might otherwise contravene the provisions of the order. It is, in this context, that it provides that goods cleared under a bond for re-export to countries other than Nepal and Bhutan [sub- cl.(g)] or goods imported in transit or transhipment to destinations outside India [sub-cls.(c) and (f)] or even goods imported without a valid licence if permitted to be re-exported [sub-cl.(i)] could be re-exported irrespective of any restrictions under Export Control Orders issued from time to time. We agree with learned counsel for the appellant that sub-clause (g) cannot be interpreted to mean that imported goods cannot be exported unless they are cleared, at the time of import, under a bond for re-export.(5) Two clauses of the Import Control Order, 1955 have also been relied upon by the Revenue. The first of these is sub-clause (d) of clause 11(1). This clause, like clause 15 of the Export Control Order, is headed "savings" and, by virtue of sub-clause (d), nothing in the order was to apply to the import of thetransshipment, as imported and bonded on arrival for re-export as ships stores to any country outside India except Nepal, Tibet and Bhutan or imported and bonded on arrival for re-export as aforesaid but subsequently released for use of diplomatic personnel...who are exempt from payment of duty...."sub-clause was amended in 1985 to add the words "or otherwise" after the word "ships stores". The CEGAT has relied upon the amendment to draw an inference against the appellant that, since the goods do not fall under this clause, their export was not permitted. We think that this is not correct for the reasons we have pointed out in respect of clause 15(g) of the Export Control Order, 1988. To say that goods bonded for re-export as above will not be affected by the provisions of the order does not mean that goods, not so bonded, cannot be exported at all. Their export can be interdicted only if their is some other express or implicit prohibition in clause 3 of the Export Control Order orthink, however, that para 10C is of some indirect assistance in the present case. We may put it this way. The interpretation of the OGL that has commended itself to us (viz. that the import of the goods is permitted only for use in India) was also the one which the CCIE had formed and this opinion he had formulated in his two letter dated 10.10.1988 and 27.1.1989. As we have already pointed out, the CCIE s opinion on the Import and Export Control Order is final and binding. In view of this, when the CCIE came to know that the appellant was seeking to export the goods, he could have intervened and issued directions under clause 10C either permitting the export of the goods to the USSR or directing them to be sold to needy hospitals or other parties in India. He could have effectively stopped the export of the goods. This shows that the export of the goods is not free or unrestricted as made out by the learned counsel for theLearned counsel for the Revenue also pointed out that the shipping bills called for a mention as to whether the goods of which export was sought were "free goods or India produce t o be exported or India Produce". The appellant did not strike off any of these descriptions as inappropriate. The customs authorities were given the impression that these were Indian goods that were being exported. Indeed, the appellant itself well knew that goods imported could not be exported as such without the performance of some operation of processing or manufacture in regard to them. That is why it put up a facade of taking the goods to Ankleshwar after their imp ort allegedly for being subjected to some processes. The customs officers, on verification, found that all this was untrue and that the appellant was surreptitiously trying to export imported goods, after just recapping them as goods of Indian manufacture. The appellant had adopted a similar subterfuge on the earlier occasion in December 1987 and succeeded in exporting like goods by not striking out the appropriate columns o f a shipping bill proforma which required the exporter to specify whether the goods were "Indian produce or foreign produce to be re-exported". It is, therefore, urged that the goods sought to be exported do not conform to the description in the bill of entry for export, attracting the provisions of clause 3(3) of the Export Control Order and, in turn, s.113(d) of the Act. There is some force in this contention but we express no opinion thereon as this was not the ground on which action was taken and it is a new ground, involving investigation of facts, taken for the first time before us. | 0 | 9,559 | 3,928 | ### 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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for use of diplomatic personnel...who are exempt from payment of duty...." This sub-clause was amended in 1985 to add the words "or otherwise" after the word "ships stores". The CEGAT has relied upon the amendment to draw an inference against the appellant that, since the goods do not fall under this clause, their export was not permitted. We think that this is not correct for the reasons we have pointed out in respect of clause 15(g) of the Export Control Order, 1988. To say that goods bonded for re-export as above will not be affected by the provisions of the order does not mean that goods, not so bonded, cannot be exported at all. Their export can be interdicted only if their is some other express or implicit prohibition in clause 3 of the Export Control Order or otherwise. (6) Reliance has also been placed by the Tribunal on clause 10 C of the Imports Control Order for rejecting the assessee s contentions. It is sufficient to extract sub- clause (1) of this clause which reads: "10C. Power to make directions for the sale of imported goods in certain cases - (1) Where, on the importation of any goods or at any time thereafter, the Chief Controller of Imports and Exports is satisfied after giving a reasonable opportunity to the licensee of being heard in the matter, that such goods cannot or should not be utilised for the purpose for which they were imported he may by order direct the importer of the goods (in case the goods were imported under Open General Licence or Special General Licence) or the licensee or any other persons having possession or control of such goods to sell such goods to such person within such time, at such price and in such manner as may be specified in the direction." The Tribunal agrees that the opinions or clarifications given by the CCIE in the present case are not directions under s.10C. But, apparently, their suggestion is that, if the appellant felt that the imported goods could not be utilised "for home consumption" or "for stock and sale in India" and there were sound reasons for exporting it to U.S.S.R., they could and should have obtained the directions of the CCIE permitting such sale. It is difficult to approve of this line of reasoning. The provision relied upon is one enabling the Import -Export Control authorities to interfere in any individual case where they find that the purpose of the import is not being achieved. It does not impose an obligation on an importer to seek the directions or the permission of the CCIE before exporting the goods if otherwise permissible. Moreover, as pointed out by learned counsel for the appellant, while clause 11(4) of the order which reads: "Nothing in this order except paragraph (iii) of sub-clause (3) of clause (5), clause 8, clause 8A, clause 8C and clause 10C, shall apply to the import of any goods covered by Open General Licence or Special General Licence issued by the Central Government". makes clause 10C applicable to the subject imports, it releases them form the application of the other restrictions and conditions on imports imposed by the Import Control Order. We think, however, that para 10C is of some indirect assistance in the present case. We may put it this way. The interpretation of the OGL that has commended itself to us (viz. that the import of the goods is permitted only for use in India) was also the one which the CCIE had formed and this opinion he had formulated in his two letter dated 10.10.1988 and 27.1.1989. As we have already pointed out, the CCIE s opinion on the Import and Export Control Order is final and binding. In view of this, when the CCIE came to know that the appellant was seeking to export the goods, he could have intervened and issued directions under clause 10C either permitting the export of the goods to the USSR or directing them to be sold to needy hospitals or other parties in India. He could have effectively stopped the export of the goods. This shows that the export of the goods is not free or unrestricted as made out by the learned counsel for the appellant. (7) Learned counsel for the Revenue also pointed out that the shipping bills called for a mention as to whether the goods of which export was sought were "free goods or India produce t o be exported or India Produce". The appellant did not strike off any of these descriptions as inappropriate. The customs authorities were given the impression that these were Indian goods that were being exported. Indeed, the appellant itself well knew that goods imported could not be exported as such without the performance of some operation of processing or manufacture in regard to them. That is why it put up a facade of taking the goods to Ankleshwar after their imp ort allegedly for being subjected to some processes. The customs officers, on verification, found that all this was untrue and that the appellant was surreptitiously trying to export imported goods, after just recapping them as goods of Indian manufacture. The appellant had adopted a similar subterfuge on the earlier occasion in December 1987 and succeeded in exporting like goods by not striking out the appropriate columns o f a shipping bill proforma which required the exporter to specify whether the goods were "Indian produce or foreign produce to be re-exported". It is, therefore, urged that the goods sought to be exported do not conform to the description in the bill of entry for export, attracting the provisions of clause 3(3) of the Export Control Order and, in turn, s.113(d) of the Act. There is some force in this contention but we express no opinion thereon as this was not the ground on which action was taken and it is a new ground, involving investigation of facts, taken for the first time before us. 25.
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interests of both the countries and that this should be considered sufficient to justify the export. In our opinion, the mere fact that mutual trade was allowed between the two countries is not enough to hold that even goods of this type - which had been allowed to be imported with a specific end in view - could be exported. Learned counsel did not place the trade agreement or any material to show that it specifically provided for the export of goods of this nature to U.S.S.R. We have no doubt that the export of such goods may also endure to the benefit of India indirectly but, in the absence of anything to s how that the goods in question constituted one of the categories of goods specifically envisaged by the mutual trade agreement, it is not possible to override the prohibition implicit, as held by us, in the Import regulations.(4) The show cause notice referred to clause 15(g) of the Export Control Order, 1988. The said clause 15 is headed "savings" and it enumerates situations in which the Export Control order does not apply; in other words, it provides that, in certain circumstances, exports can be permitted even where such export might otherwise contravene the provisions of the order. It is, in this context, that it provides that goods cleared under a bond for re-export to countries other than Nepal and Bhutan [sub- cl.(g)] or goods imported in transit or transhipment to destinations outside India [sub-cls.(c) and (f)] or even goods imported without a valid licence if permitted to be re-exported [sub-cl.(i)] could be re-exported irrespective of any restrictions under Export Control Orders issued from time to time. We agree with learned counsel for the appellant that sub-clause (g) cannot be interpreted to mean that imported goods cannot be exported unless they are cleared, at the time of import, under a bond for re-export.(5) Two clauses of the Import Control Order, 1955 have also been relied upon by the Revenue. The first of these is sub-clause (d) of clause 11(1). This clause, like clause 15 of the Export Control Order, is headed "savings" and, by virtue of sub-clause (d), nothing in the order was to apply to the import of thetransshipment, as imported and bonded on arrival for re-export as ships stores to any country outside India except Nepal, Tibet and Bhutan or imported and bonded on arrival for re-export as aforesaid but subsequently released for use of diplomatic personnel...who are exempt from payment of duty...."sub-clause was amended in 1985 to add the words "or otherwise" after the word "ships stores". The CEGAT has relied upon the amendment to draw an inference against the appellant that, since the goods do not fall under this clause, their export was not permitted. We think that this is not correct for the reasons we have pointed out in respect of clause 15(g) of the Export Control Order, 1988. To say that goods bonded for re-export as above will not be affected by the provisions of the order does not mean that goods, not so bonded, cannot be exported at all. Their export can be interdicted only if their is some other express or implicit prohibition in clause 3 of the Export Control Order orthink, however, that para 10C is of some indirect assistance in the present case. We may put it this way. The interpretation of the OGL that has commended itself to us (viz. that the import of the goods is permitted only for use in India) was also the one which the CCIE had formed and this opinion he had formulated in his two letter dated 10.10.1988 and 27.1.1989. As we have already pointed out, the CCIE s opinion on the Import and Export Control Order is final and binding. In view of this, when the CCIE came to know that the appellant was seeking to export the goods, he could have intervened and issued directions under clause 10C either permitting the export of the goods to the USSR or directing them to be sold to needy hospitals or other parties in India. He could have effectively stopped the export of the goods. This shows that the export of the goods is not free or unrestricted as made out by the learned counsel for theLearned counsel for the Revenue also pointed out that the shipping bills called for a mention as to whether the goods of which export was sought were "free goods or India produce t o be exported or India Produce". The appellant did not strike off any of these descriptions as inappropriate. The customs authorities were given the impression that these were Indian goods that were being exported. Indeed, the appellant itself well knew that goods imported could not be exported as such without the performance of some operation of processing or manufacture in regard to them. That is why it put up a facade of taking the goods to Ankleshwar after their imp ort allegedly for being subjected to some processes. The customs officers, on verification, found that all this was untrue and that the appellant was surreptitiously trying to export imported goods, after just recapping them as goods of Indian manufacture. The appellant had adopted a similar subterfuge on the earlier occasion in December 1987 and succeeded in exporting like goods by not striking out the appropriate columns o f a shipping bill proforma which required the exporter to specify whether the goods were "Indian produce or foreign produce to be re-exported". It is, therefore, urged that the goods sought to be exported do not conform to the description in the bill of entry for export, attracting the provisions of clause 3(3) of the Export Control Order and, in turn, s.113(d) of the Act. There is some force in this contention but we express no opinion thereon as this was not the ground on which action was taken and it is a new ground, involving investigation of facts, taken for the first time before us.
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MURTHY & ORS Vs. C. SARADAMBAL & ORS | to reiterate that in this case, the High Court has dealt with the judgment of the learned Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. It is trite that the Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court. However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court. No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so. 38. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs - (2001) 3 SCC 179, wherein it has been observed that while writing a judgment of reversal, an Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the Trial Court should not be interfered with lightly on a question of fact. Secondly, while reversing a finding of fact, it is necessary that the Appellate Court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Code of Civil Procedure, 1908, as the first Appellate Court is the final court of facts and the said findings are immune from challenge in a second appeal. 39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words : (SCC pp.530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state : (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari – (2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram – (2001) 4 SCC 756 at p.758, para 5. 40. To a similar effect, are the observation of this Court in Vinod Kumar v. Gangadhar - (2015) 1 SCC 391, wherein it has been observed that in a first appeal under Section 96 of the Code of Civil Procedure, 1908, the scope and powers conferred on the First Appellate Court are delineated in Order XLI of the Code and grounds raised in the appeal, reappreciation of evidence adduced by the parties and application of the relevant legal principles and decided case law have to be considered while deciding whether the judgment of the Trial Court can be sustained or not. 41. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the reappreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with. 42. In the instant case, the Division Bench of the High Court has simply reversed the judgment of the learned Trial Judge in the absence of reappreciation of evidence and without giving findings on questions of fact as well as on the applicable law and by not reasoning as to why the judgment of the learned Trial Judge was erroneous. | 1[ds]23. The relationship between the parties is not in dispute. Deceased E. Srinivasa Pillai was the father of the husband of first plaintiff as well as the father of defendants being the daughters. It is also not in dispute that the testator died on 19th January, 1978. The controversy here is with regard to the succession to his estate. If he had died intestate, his son and daughters would have been entitled to succeed to his estate including the house property, equally. But the petition was filed seeking grant of Letters of Administration in favour of the plaintiffs, on the basis of the testament of the deceased, E. Srinivasa Pillai dated 04th January, 1978. It is also not in dispute that the said testament had not seen the light of the day for fifteen years and only after the filing of the suit for partition and separate possession by the appellants, i.e. the daughters of the testator herein, the respondents herein sought Letters of Administration on the basis of the will of deceased E. Srinivasa Pillai, which was said to be executed on 04th January, 1978.(a) One of the celebrated decisions of this Court on proof of a will, reported in AIR 1959 SC 443 is in the case of H.Venkatachala Iyenger vs. B.N.Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:-18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression a person of sound mind in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In the above noted case, this Court has stated that the following three aspects must be proved by a propounder:-(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein.(c) In Bharpur Singh and others v. Shamsher Singh [2009 (3) SCC 687] , at Para 23, this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner:-23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.(ii) The condition of the testators mind may be very feeble and debilitated at the relevant time.(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.(iv) The dispositions may not appear to be the result of the testators free will and mind.(v) The propounder takes a prominent part in the execution of the will.(vi) The testator used to sign blank papers.(vii) The will did not see the light of the day for long.(viii) Incorrect recitals of essential facts.It was further observed that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.(f) Similarly, in Leela Rajagopal and others v. Kamala Menon Cocharan and others, [(2014) 15 SCC 570] , this Court opined as under:-13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.31. In light of the aforesaid discussion, the validity of will (Ex-P1) said to be the last will and testament of deceased E. Srinivasa Pillai shall be considered. On a reading of will (Ex- P1), we note that immovable property bearing House No.6/1 Azeez Nagar, 2nd Street, Kodambakkam, Madras – 600024 and the building situate on it being about two grounds which was bought by the testator in the year 1953 is the subject matter of the bequest to his son S. Damodaran a practising advocate at Madras.At this stage we note that the will itself recites that the testator was sick and getting weak.33. We shall now discuss each of the aforesaid aspects.(a) The date of the will (Ex-P1) is 04th January, 1978. The testator E. Srinivasa Pillai died on 19th January, 1978, within a period of fifteen days from the date of execution of the will. Even on reading of the will, it is noted that the testator himself has stated that he was sick and getting weak even then he is stated to have written the will himself which is not believable. It has been deposed by PW2, one of the attestors of the will, that the will could not be registered as the testator was unwell and in fact, he was bedridden. It has also come in evidence that the testator had suffered a paralytic stroke which had affected his speech, mobility of his right arm and right leg. He was bedridden for a period of ten months prior to his death. Taking the aforesaid two circumstances into consideration, a doubt is created as to whether the testator was in a sound and disposing state of mind at the time of making of the testament which was fifteen days prior to his death.(b) No evidence of the doctor who was treating the testator has been placed on record so as to prove that the testator was in a sound and disposing state at the time of the execution of the will.(c) The fact that the testator died within a period of fifteen days from the date of the execution of the will, casts a doubt on the thinking capacity and the physical and mental faculties of the testator. The said suspicion in the mind of the Court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death.(d) In this context, it would be useful to place reliance on Section 63 of the Indian Succession Act, 1925 which categorically states that the testator has to sign on the will and the signature of the testator must be such that it would intend thereby to give effect to the writing of a will. Hence, the genuineness of the will must be proved by proving the intention of the testator to make the testament and for that, all steps which are required to be taken for making a valid testament must be proved by placing concrete evidence before the Court. In the instant case, there is no evidence as to whom the testator gave instructions to, to write the will. The scribe has also not been examined. It is also not known as to whether the assistance of an advocate or any other trustworthy person was taken by the testator in order to make the testament and bequeath the property to only the son of the testator.(e) Apart from that, Section 63(c) of the Indian Succession Act, 1925, firstly states that the will has to be attested by two or more witnesses/attestators, each of whom should have seen the testator sign on the will in his presence, or has received from the testator, a personal acknowledgment of his signature on the will. Secondly, each of the witnesses shall sign on the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation is necessary. The aforesaid two mandatory requirements have to be complied with for a testament to be valid from the point of view of its execution. In the instant case, there are two attestors namely, PW2-Varadan and Dakshinmurthy and the latter had died. The evidence on record has to be as per Section 68 of the Indian Evidence Act, 1872 which deals with proof of documents which mandate attestation. In order to prove the execution of the document such as a testament, at least one of the attesting witnesses who had attested the same must be called to give evidence for the purpose of proof of its execution. Since one of the attestors, namely, Dakshinmurthy had died, PW2, Varadan had given his evidence as one of the attestors of the will. However, the deposition of PW2 is such that it is fatal to the case of the plaintiffs. The evidence of PW2 could be highlighted as under:(i) He was a friend of the testator and he was frequently visiting the testator once in two or three days.(ii) He signed as the first attesting witness on Ex-P1 and Dakshinmurthy signed as second attesting witness and the testator saw both the attestors signing Ex-P1. However, he has deposed that it was not possible to take the testator to the Registrars office for registering the will as the testator was not in a sound condition and he was very seriously ill, he was suffering from paralysis.(iii) He has admitted that testator was suffering from paralysis of right hand and right leg and prior to his death, was sick for about 10 months and was confined to his house and not in a position to write.(iv) PW2 has also stated that he had not disclosed about the will to S. Damodaran, the son of the testator and during his lifetime, S. Damodaran was unaware of the will executed by his father.(v) S. Damodaran, (who was a practicing advocate) lived for about eleven years after the execution of will (Ex-P1) and since he was unaware of the will executed by his father, he did not take steps to seek probate of the will.(vi) He has also admitted that he signed the affidavit in the suit on the instructions and as requested by the counsel.(f) The Trial Court has not believed the evidence of PW2. It is highly improbable that the only son of the testator who was a practicing advocate and on whom the bequest of the house was made, was unaware of the execution of the will by his father. It is unnatural that the father would not have disclosed to his only son about the bequest of the property, (particularly when the son was a practicing advocate) and had also not taken his sons assistance in the drafting as well as execution of the will.We have compared the said signatures. Even though the said signatures on the aforesaid documents have been made at different points of time, we find they are totally dissimilar inasmuch as the signatures on Ex-P2 and P3 do not resemble each other and the signature on the will (Ex-P1) is dissimilar to the signatures of testator on Ex-P2 and P3, particularly the letter E. This fact raises a suspicion in the mind of this Court as to whether the signature on Ex-P1 was really that of the testator. Further if really the testator had himself written the will the fonts of the recital of the will and his signature do not at all match.We shall highlight the same:(i) PW1 has stated that Ex-P1 was executed about fifteen days prior to the death of the testator who was her father-in- law and the same was in the custody of the testator. Ex-P1 has seen light of the day, only after the demise of the testators son who was unaware of the will and during the pendency of the suit filed by the appellants herein seeking partition and separate possession of the property or the estate left behind by their father. There is no explanation regarding the custody of the will after the demise of the testator and for over fifteen years.(ii) PW1 has stated that the will was kept in a secret place in her husbands almirah and that she took it out only after fifteen days of his death. This admission implies that only PW1 was aware of the execution of the will as well as the secret place where it was kept. If the will was in the custody of the testator as deposed by PW1, there is no explanation as to how the document found a place in the almirah belonging to her husband, particularly, when the testator was bedridden during the last few months (ten months) before his demise and was not in a position to move around.(iii) PW1 has stated that the will was written by a person known to her father-in-law but the name of the person who wrote the will has not been mentioned therein. There is no mention of or evidence of the scribe of the will.(iv) PW1 has also admitted that no date has been mentioned on top of the will. Thus, the date of the execution of the will has also not found a place on Ex- P1. This aspect also casts a doubt as to whether the will was executed by the testator during his lifetime.(v) PW1 has stated that Ex-P1 was executed by her father-in-law and she was present when it was executed but PW2, the attestor has stated that PW1 was outside the room at the time of execution of the will.In view of the above, we find much force in the submission of appellants counsel.(i) On the other hand, the evidence of DW1 in relation to the fact that the testator was not in a good health and he was suffering from a paralytic attack and was not in a position to write, is in corroboration with what PW2 has also admitted in his evidence, that the testator could not be taken to the sub- Registrars office for the registration of the will as he was suffering from a paralytic stroke.(j) It has also come in evidence that there was no cordial relationship between the first plaintiff and her husband S. Damodaran and in fact proceedings for dissolution of marriage were initiated which became infructuous on his demise.34. For the aforesaid reasons, we hold that the respondents-plaintiffs have not been successful in proving the validity of the will in accordance with law inasmuch as the suspicious circumstances surrounding the very execution of the will have not been cleared by any cogent evidence, rather, the genuineness of Ex-P1 remains in doubt. It is observed that the will (Ex-P1) did not come into existence at the instance of the testator but it is a concocted document and has been got up after the demise of S. Damodaran.35. In view of the aforesaid discussion, we hold that the respondents-plaintiffs have failed to prove the will (Ex-P1) in accordance with law inasmuch as they have not removed the suspicious circumstances, surrounding the execution of the will. Hence, Ex-P1, not being a valid document in the eye of law, no Letters of Administration can be granted to the respondents-plaintiffs.36. In the circumstances, we hold that the learned Trial Judge was right in dismissing the suit. However, the Appellate Court being the Division Bench has reversed the judgment and decree passed by the Trial Court and has decreed the suit. On extracting the relevant portions of the judgment of the Appellate Court, which consists of eleven paragraphs, it is found that the same has been written in a cryptic manner. It is observed that the judgment could be brief and succinct if the Appellate Court is to dismiss an appeal and affirm the judgment and decree of the Trial Court. But when the judgment and decree of the Trial court is to be reversed then it is incumbent upon the Appellate Court to dwell into the matter in detail and to give reasons for reversing the same. Assigning reasons not only makes the judgment wholesome, but is also necessary in order to deduce and lead to just conclusions.37. Before parting with this case, we would like to reiterate that in this case, the High Court has dealt with the judgment of the learned Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. It is trite that the Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court. However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court. No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so.38. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs - (2001) 3 SCC 179, wherein it has been observed that while writing a judgment of reversal, an Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the Trial Court should not be interfered with lightly on a question of fact. Secondly, while reversing a finding of fact, it is necessary that the Appellate Court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Code of Civil Procedure, 1908, as the first Appellate Court is the final court of facts and the said findings are immune from challenge in a second appeal.39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words : (SCC pp.530-31, paras 3-5)3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state :(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari – (2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram – (2001) 4 SCC 756 at p.758, para 5.41. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the reappreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with.42. In the instant case, the Division Bench of the High Court has simply reversed the judgment of the learned Trial Judge in the absence of reappreciation of evidence and without giving findings on questions of fact as well as on the applicable law and by not reasoning as to why the judgment of the learned Trial Judge was erroneous. | 1 | 9,209 | 4,800 | ### Instruction:
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to reiterate that in this case, the High Court has dealt with the judgment of the learned Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. It is trite that the Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court. However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court. No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so. 38. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs - (2001) 3 SCC 179, wherein it has been observed that while writing a judgment of reversal, an Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the Trial Court should not be interfered with lightly on a question of fact. Secondly, while reversing a finding of fact, it is necessary that the Appellate Court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Code of Civil Procedure, 1908, as the first Appellate Court is the final court of facts and the said findings are immune from challenge in a second appeal. 39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words : (SCC pp.530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state : (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari – (2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram – (2001) 4 SCC 756 at p.758, para 5. 40. To a similar effect, are the observation of this Court in Vinod Kumar v. Gangadhar - (2015) 1 SCC 391, wherein it has been observed that in a first appeal under Section 96 of the Code of Civil Procedure, 1908, the scope and powers conferred on the First Appellate Court are delineated in Order XLI of the Code and grounds raised in the appeal, reappreciation of evidence adduced by the parties and application of the relevant legal principles and decided case law have to be considered while deciding whether the judgment of the Trial Court can be sustained or not. 41. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the reappreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with. 42. In the instant case, the Division Bench of the High Court has simply reversed the judgment of the learned Trial Judge in the absence of reappreciation of evidence and without giving findings on questions of fact as well as on the applicable law and by not reasoning as to why the judgment of the learned Trial Judge was erroneous.
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found that the same has been written in a cryptic manner. It is observed that the judgment could be brief and succinct if the Appellate Court is to dismiss an appeal and affirm the judgment and decree of the Trial Court. But when the judgment and decree of the Trial court is to be reversed then it is incumbent upon the Appellate Court to dwell into the matter in detail and to give reasons for reversing the same. Assigning reasons not only makes the judgment wholesome, but is also necessary in order to deduce and lead to just conclusions.37. Before parting with this case, we would like to reiterate that in this case, the High Court has dealt with the judgment of the learned Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. It is trite that the Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court. However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court. No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants. But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so.38. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs - (2001) 3 SCC 179, wherein it has been observed that while writing a judgment of reversal, an Appellate Court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the Trial Court should not be interfered with lightly on a question of fact. Secondly, while reversing a finding of fact, it is necessary that the Appellate Court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Code of Civil Procedure, 1908, as the first Appellate Court is the final court of facts and the said findings are immune from challenge in a second appeal.39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words : (SCC pp.530-31, paras 3-5)3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state :(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari – (2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram – (2001) 4 SCC 756 at p.758, para 5.41. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the reappreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with.42. In the instant case, the Division Bench of the High Court has simply reversed the judgment of the learned Trial Judge in the absence of reappreciation of evidence and without giving findings on questions of fact as well as on the applicable law and by not reasoning as to why the judgment of the learned Trial Judge was erroneous.
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Union of India & Another Vs. M/s. Kumho Petrochemicals Company Limited & Another | the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable. 11. Though the Notification is dated December 31, 2013 and published on the same date, it was sent for distribution to Kitab Mahal Book Store on January 06, 2014. The validity would depend upon the issue as to whether December 31, 2013 is the date of reckoning or it is only January 06, 2014. 12. The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as a pre-condition for initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition of anti-dumping duty. 13. Questioning the aforesaid approach of the High Court, it was argued by the learned counsel for the writ petitioners that this view was contrary to the judgment of this Court in B.K. Srinivasan & Ors. v. State of Karnataka & Ors., (1987) 1 SCC 658 wherein it was held as under: "15....Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication..." 14. It was argued that the aforesaid principle was reiterated in the case of Union of India & Ors. v. Ganesh Das Bhojraj, (2000) 9 SCC 461. On the basis of this principle contained in the aforesaid judgments, it was submitted that even if the provisions of the statute, i.e. Section 9A, were silent about the publication of the Notification, concerned Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 were to be followed. It was argued that Rule 6(1) of the said Rules required issuance of public notice of initiation of investigation and, thus, having regard to the dicta laid down in the aforesaid judgments prescribing a mode of publication, publication by `extraordinarily recognised Official Gazette, namely the Official Gazette, had to be resorted to and since it was made available to public only on January 06, 2014, that date has to be treated as the relevant date when the Notification came into force, having regard to the ratio of judgment in Union of India v. Param Industries Ltd., 2015 (321) ELT 192 (SC) 15. Rule 6 of the aforesaid Rules deals with principles governing investigations. Sub-rule (11) thereof mentions that whenever Designated Authority has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, it shall issue a public notice underlying its decision and also mention the particulars/information which shall be provided in the said public notice. This Rule thereafter narrates the procedure which is to be followed which includes providing opportunity to the industrial user of the article under investigation and the respective consumer organisation in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping/injury where applicable, and casualty. The High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition of anti-dumping duty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty. Such a purport of Rule 6 of the rules is recognised in the case of Automotive Tyre Manufacturers Association v. Designated Authority & Ors., (2011) 2 SCC 258 , namely, the Designated Authority is to conform to the principles of natural justice, as can be seen from the following discussion in the said judgment: "82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules." 16. First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition of anti-dumping duty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made public. | 0[ds]QUESTION NO.19. It is not in dispute that in terms of Section 9A(5) of the Act,duty is effective for a period not exceeding five years from the date of its imposition. The Government is empowered to revoke the duty imposed even before the expiry of five years. In any case, such a duty admittedly ceases to be operative after five years from the date of imposition.It is a common case that such a sunset review is to initiate before the expiry of five years period mentioned in the Notification. In the present case, no doubt, the Notification which is passed initiating sunset review is dated December 31, 2013. Though we have reproduced relevant portion of this Notification, a perusal of the entire Notification reveals that it is a detailed Notification running into almost fifteen pages wherein history of original investigation concerned the imports of the product in question from Korea RP and Germany is traced out leading to the findings that were arrived at by the Authority on the basis of whichduty was imposed on the subject goods vide Notification dated July 30, 1997. This Notification thereafter deals with the second sunset review which led to passing of further Notification dated January 02, 2009. Thereafter, it mentions that M/s. Omnova Solution (Pvt.) Limited had filed a duly substantiated application on November 11, 2013 before the Authority alleging likelihood of continuation of recurrence of dumping of the subject goods, originating in or exported from Korea RP, and a consequent injury to the domestic market and requested for another review. The Notification thereafter deals with the situation of domestic industry, product in question and satisfaction of the Authority that a case was made out for initiation of sunset review investigation to review the need for continued imposition ofduty in force in respect of the product in question. The Notification thereof calls upon the interested parties to submit relevant information in the prescribed form and manner and furnish their views to the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable.The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as afor initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition ofe High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition ofduty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty.First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend theduty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which theduty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition ofduty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made. From the scheme of Section 9A of the Act, it becomes clear that though the Notification forduty is valid for a maximum period of five years, the said period can be extended further with the issuance of fresh notification. For this purpose, it is necessary to initiate the review exercise before the expiry of the original notification, which review is commonly known as `sunset review. There may be situations where the sunset review is undertaken but the review exercise is not complete before the expiry of the period of original notification. It is because of the reason that the exercise of sunset review also demands complete procedure to be followed, in consonance with the principles of natural justice that was followed while imposing theduty in the first instance. To put it otherwise, this exercise contemplates hearing the views of all stakeholders by giving them adequate opportunity in this behalf and thereafter arriving at a conclusion that the continuation of theduty is justified, otherwise injury to the domestic industry is likely to continue or reoccur, if the saidduty is removed or varied. Since this exercise is likely to take some time and may go beyond the period stipulated in the original notification imposingduty, in order to ensure that there is no vacuum in the interregnum, second proviso to(5) of Section 9A of the Act empowers the Central Government to continue theduty for a further period not exceeding one year, pending the outcome of such a review. The question, however, is as to whetherthis extension to fill the void that may be created during the pendency of the sunset review is exercised is automatic, once the decision is taken to have sunset review of theduty or the continuation of such anduty has to be by a propernotification. As noted above, the High Court has held that second proviso is only an enabling provision and, therefore, power vested in the Central Government under the said proviso has to be specifically exercised, without which theduty cannot continue to remain in force with the lapse of original notification.31. After giving due consideration to the arguments advanced by the learned counsel for the parties, we are inclined to agree with the High Court that proviso to(5) of Section 9A of the Act is an enabling provision. That is very clear from the language of the said provision itself.(5) of Section 9A gives maximum life of five years to the imposition ofduty by issuing a particular notification. Of course, this can be extended by issuing fresh notification. However, the words `unless revoked earlier in(5) clearly indicate that the period of five years can be curtailed by revoking the imposition ofduty earlier. Of course, provision for review is there, as mentioned above, and the Central Government may extend the period if after undertaking the review it forms an opinion that continuation of such anduty is necessary in public interest. When such a notification is issued after review, period of imposition gets extended by another five years. That is the effect of first proviso to(5) of Section 9A. However, what we intend to emphasise here is that even as per(5) it is not necessary that in all casesduty shall be imposed for a full period of five years as it can be revoked earlier. Likewise, when a review is initiated but final conclusion is not arrived at and the period of five years stipulated in the original notification expires in the meantime, as per second proviso `theduty may continue to remain in force. However, it cannot be said that the duty would automatically get continued after the expiry of five years simply because review exercise is initiated before the expiry of the aforesaid period. It cannot be denied, which was not even disputed before us, that issuance of a notification is necessary for extending the period ofduty. Reason is simple. There no duty or tax can be imposed without the authority of `law. Here, such a law has to be in the form of an appropriate notification and in the absence thereof the duty, which is in the form of a tax, cannot be extracted as, otherwise, it would violate the provisions of Article 265 of the Constitution of India. As a fortiorari, it becomes apparent that the Government is to exercise its power to issue a requisite notification. In this hue, the expression `may in the second proviso to(5) has to be read as enabling power which gives discretion to the Central Government to determine as to whether to exercise such a power or not. It, thus, becomes an enabling provision.32. We are conscious of the fact that once sunset review is initiated, such initiation takes place only after a substantiated application/request is filed by the indigenous industry which is examined and a prima facie view is formed by the Central Government to the effect that such a review is necessitated as withdrawal ofduty or cessation thereof may be prejudicial to the indigenous industry. Once such an opinion is formed and the sunset review is initiated, in all likelihood the Central Government would make use of second proviso and issue notification for continuing the saidduty. At the same time, it cannot be said that without any overt act on the part of the Central Government, there is an automatic continuation. The learned counsel for respondent rightfully pointed out that the legislature has consciously used the expression `may and `shall at different places in the same Section, i.e., Section 9A of the Act. In such a scenario, it has to be presumed that different expressions were consciously chosen by the Legislature to be used, and it clearly understood the implications thereof, therefore, when the word `may is used in the same Section in contradistinction to the word `shall at other places in that very Section, it is difficult to interpret the word `may as `shall. Therefore, it is difficult to read the word `may as `shall. Our conclusion gets strengthened when we keep in mind following additional factors:33. Theduty may continue, pending the outcome of the review, for a further period not exceeding one year. Thus, maximum period of one year is prescribed for this purpose which implies that the period can be lesser as well. The Government is, thus, to necessarily form an opinion as to for how much period it wants to continue theduty pending outcome of such a review. Moreover, since the maximum period is one year, if the review exercise is not completed within one year, the effect of that would be that after the lapse of one year there would not be anyduty even if the review is pending. In that eventuality, it is only after the review exercise is complete and the Central Government forms the opinion that the cessation of such a duty is likely to lead to continuation or recurrence of dumping and injury, it would issue a notification extending the period of imposition of duty. Therefore, there may be a situation where even when the power is exercised under second proviso and duty period extended by full one year, the review exercise could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between.34. Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orIn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of theAct. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of the. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.As noticed above, the High Court has held that once the earlier Notification by whichduty was extended by five years, i.e. up to January 01, 2014, expired, the Central Government was not empowered to issue any Notification after the said date, namely, on January 23, 2014, inasmuch as there was no Notification in existence the period whereof could be extended. The High Court, in the process, has also held that the Notification extendingduty by five years, i.e. up to January 01, 2014 was in the nature of temporary legislation and validity thereof could be extended, in exercise of powers contained in second proviso to(5) of Section 9A of the Act only before January 01, 2014.37. We do not find any infirmity in the aforesaid approach of the High Court in interpreting the second proviso to Section 9A(5) of the Act. The High Court has rightly interpreted the aforesaid provision in the light of Article 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as `Implementation Agreement.on (5) of Section 9A is in tune with the aforesaid Articles of Implementation Agreement and is to be interpreted in that hue.39. India is a signatory to the Marrakesh Agreement establishing the World Trade Organization in 1994. Pursuant to this, it has implemented the Agreement on Implementation of Article VI of the GATT 1994 referred to as theAgreement (ADA), which is one of the Agreements that forms part of the WTO treaty. In terms of Article 18.4 of the ADA, each Member country is required to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the ADA. As a consequence, Sections 9A, Section 9AA, Section 9B and Section 9C of the Act were enacted.40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposingduty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending aNotification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed. | 0 | 5,881 | 3,255 | ### Instruction:
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the Authority for its consideration. Thus, a detailed exercise was done taking into account all the relevant factors in forming the opinion that the sunset review was desirable. 11. Though the Notification is dated December 31, 2013 and published on the same date, it was sent for distribution to Kitab Mahal Book Store on January 06, 2014. The validity would depend upon the issue as to whether December 31, 2013 is the date of reckoning or it is only January 06, 2014. 12. The High Court has answered the question in favour of the Government and against the writ petitioners on the ground that Section 9A(5) of the Act and its proviso do not mandate a public notice or a Gazette Notification as a pre-condition for initiation of sunset review investigation. The reference to publication by Official Gazette is, significantly, in Section 9A(1) which talks of imposition of anti-dumping duty. 13. Questioning the aforesaid approach of the High Court, it was argued by the learned counsel for the writ petitioners that this view was contrary to the judgment of this Court in B.K. Srinivasan & Ors. v. State of Karnataka & Ors., (1987) 1 SCC 658 wherein it was held as under: "15....Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication..." 14. It was argued that the aforesaid principle was reiterated in the case of Union of India & Ors. v. Ganesh Das Bhojraj, (2000) 9 SCC 461. On the basis of this principle contained in the aforesaid judgments, it was submitted that even if the provisions of the statute, i.e. Section 9A, were silent about the publication of the Notification, concerned Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 were to be followed. It was argued that Rule 6(1) of the said Rules required issuance of public notice of initiation of investigation and, thus, having regard to the dicta laid down in the aforesaid judgments prescribing a mode of publication, publication by `extraordinarily recognised Official Gazette, namely the Official Gazette, had to be resorted to and since it was made available to public only on January 06, 2014, that date has to be treated as the relevant date when the Notification came into force, having regard to the ratio of judgment in Union of India v. Param Industries Ltd., 2015 (321) ELT 192 (SC) 15. Rule 6 of the aforesaid Rules deals with principles governing investigations. Sub-rule (11) thereof mentions that whenever Designated Authority has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, it shall issue a public notice underlying its decision and also mention the particulars/information which shall be provided in the said public notice. This Rule thereafter narrates the procedure which is to be followed which includes providing opportunity to the industrial user of the article under investigation and the respective consumer organisation in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping/injury where applicable, and casualty. The High Court is right that it is in this specific context that the said Rule mentions about issuance of public notice underlying its decision to initiate the investigation. Rule 23 deals with review, i.e. review to see the need for the continued imposition of anti-dumping duty and inter alia mentions that provisions of Rule 6 shall be mutatis mutandis applicable in the case of review, meaning thereby the procedure which is mentioned in Rule 6 shall be followed while undertaking review as well. Rule 6, thus, encompasses the principles of natural justice that are to be applied by the Designated Authority while undertaking the exercise of investigations qua imposition of dumping duty. Such a purport of Rule 6 of the rules is recognised in the case of Automotive Tyre Manufacturers Association v. Designated Authority & Ors., (2011) 2 SCC 258 , namely, the Designated Authority is to conform to the principles of natural justice, as can be seen from the following discussion in the said judgment: "82. the elaborate procedure prescribed in Rule 6 of 1995 Rules, which the DA is obliged to adhere to while conducting investigations, we are convinced that duty to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules." 16. First proviso to Section 9A(5) of the Act, when read along with Rule 6 of the Rules, do not lead to the conclusion that the intention to review and extend the anti-dumping duty, in the facts of a given case, have to be necessarily published and made available to all, before the expiry of the original notification. Requirement of Section 9A(5) of the Act is that the sunset review is to be initiated before the expiry of the original period for which the anti-dumping duty prevails. There is no additional requirement of making it public as well, necessarily before the said expiry date.17. We, thus, agree with the conclusion of the High Court that insofar as requirement of public notice or a Gazette Notification is concerned, no such stipulation is made in Section 9A(5) and its proviso. On the other hand, Section 9A(1), which deals with imposition of anti-dumping duty, specifically refers to such an imposition by way of publication in an Official Gazette. Therefore, as far as initiation of review is concerned, once a decision is taken by the Government on a particular date, that would be the relevant date and not the date on which it is made public.
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could not be completed within that period. In that situation, vacuum shall still be created in the interregnum beyond the period of one year and till the review exercise is complete and fresh notification is issued. This situation belies the argument that extension under second proviso is to be treated as automatic to avoid the hiatus or vacuum in between.34. Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orIn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of theAct. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.Judgment in the case of Rishiroop Polymers (P) Ltd. has no application to the issue which we are dealing with, namely, interpretation of second proviso to(5) of Section 9A. The said judgment only deals with the nature of review exercise that has to be undertaken and mentions that the entire purpose for the review investigation is not to see whether there is a need for imposition ofduty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffers. In fact, even in the instant case, review exercise was completed much after the expiry of one year from the date when the earlier notification, on completion of five years term, came to an end. Likewise, the reliance on Section 24 of the General Clauses Act, 1897 is also of no consequence. This provision concerns with the orders, etc. which have already been issued under some enactments and in the meantime those enactments are repealed orn those situations, Section 24 of the General Clauses Act provides that such orders and regulations issued under the old Act would remain in force so far as they are not inconsistent with the provisions of the. Such a provision again has no relevance with the issue which we are dealing with. Since judgment in the case of Fibre Boards Private Limited, Bangalore concerns with the interpretation of Section 24 of the General Clauses Act, that also would be of no help.As noticed above, the High Court has held that once the earlier Notification by whichduty was extended by five years, i.e. up to January 01, 2014, expired, the Central Government was not empowered to issue any Notification after the said date, namely, on January 23, 2014, inasmuch as there was no Notification in existence the period whereof could be extended. The High Court, in the process, has also held that the Notification extendingduty by five years, i.e. up to January 01, 2014 was in the nature of temporary legislation and validity thereof could be extended, in exercise of powers contained in second proviso to(5) of Section 9A of the Act only before January 01, 2014.37. We do not find any infirmity in the aforesaid approach of the High Court in interpreting the second proviso to Section 9A(5) of the Act. The High Court has rightly interpreted the aforesaid provision in the light of Article 11.1, 11.2 and 11.3 of the Agreement for Implementation and Article VI of the GATT, commonly known as `Implementation Agreement.on (5) of Section 9A is in tune with the aforesaid Articles of Implementation Agreement and is to be interpreted in that hue.39. India is a signatory to the Marrakesh Agreement establishing the World Trade Organization in 1994. Pursuant to this, it has implemented the Agreement on Implementation of Article VI of the GATT 1994 referred to as theAgreement (ADA), which is one of the Agreements that forms part of the WTO treaty. In terms of Article 18.4 of the ADA, each Member country is required to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the ADA. As a consequence, Sections 9A, Section 9AA, Section 9B and Section 9C of the Act were enacted.40. Two things which follow from the reading of the Section 9A(5) of the Act are that not only the continuation of duty is not automatic, such a duty during the period of review has to be imposed before the expiry of the period of five years, which is the life of the Notification imposingduty. Even otherwise, Notification dated January 23, 2014 amends the earlier Notification dated January 02, 2009, which is clear from its language, and has been reproduced above. However, when Notification dated January 02, 2009 itself had lapsed on the expiry of five years, i.e. on January 01, 2014, and was not in existence on January 23, 2014 question of amending aNotification does not arise at all. As a sequitur, amendment was to be carried out during the lifetime of the Notification dated January 02, 2009. The High Court, thus, rightly remarked that Notification dated January 02, 2009 was in the nature of temporary legislation and could not be amended after it lapsed.
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Donat Louis Machado and Others Vs. L. Ravindra and Others | 1. Leave granted. Though Respondents 1 and 2 are served, nobody has put in an appearance for them2. The short question is as to what is the appropriate compensation payable to the claimants on account of the death of their breadwinner on whom they were depending. The claimants are the parents and sister of the deceased. The fatal incident occurred to one Aloysius Felix Machado, who was a journalist driving a motorcycle which was run over by the offending car on 1-1-1988. The car was insured by the owner, Respondent 2 with Respondent 3 Insurance Company. On account of this fatal injury caused to the said driver of the motorcycle, his parents and his unmarried sister, who were depending on him, filed the present claim petition before the Motor Accidents Claims Tribunal, Bangalore. They joined the driver of the car, the owner thereof and the Insurance Company as Opponents 1, 2 and 3. The Tribunal after recording evidence and considering the same came to the conclusion that the fatal accident was caused on account of rash and negligent driving by the driver of the car. The Tribunal then proceeded to compute compensation to be awarded to the claimants and arrived at a total figure of Rs 52, 800 which was made payable with 9% interest from the date of filing the petition till date of payment. This amount was made payable jointly and severally by the three opponents including Respondent 3, the Insurance Company. There was a direction that the Insurance Company shall make the payment awarded within three months from the date of the judgment. The claimants carried the matter in appeal seeking enhanced compensation. The respondent did not challenge the award of compensation as granted by the Tribunal. In the claimants appeal the High Court thought it fit to enhance the compensation and raised it to Rs 1, 27, 000 and made it payable jointly and severally by all the three respondents. The claimants in search of further enhanced compensation have come to this Court by way of this appeal on special leave3. We have heard learned counsel for the appellant-claimants as well as learned counsel for the Insurance Company, who is the real contesting party at this stage and who has to bear the burden of total amount of compensation made payable to the claimants. We may note certain salient features of the case which are not in dispute. The deceased was earning Rs 2500 per month in his vocation as a journalist at the relevant time. He, was aged 31 years when his life was cut short because of the unfortunate accident. Learned counsel for the claimants contended that he was also earning extra income, but as there is no clear evidence, we will proceed on the basis that he was earning Rs 2500 per month at least. As he died at a comparatively younger age of 31 years, he had a very lucrative career before him for a number of years had he survived. Therefore, we can easily visualise that his total earnings would have gone up by at least Rs 5000 per month by the time he would have rested on his oars and given up his work as a journalist after exhausting his full earning career. Consequently, the total amount would work out at Rs 7500 per month during the whole span of future career and taking an average at 50%, his future monthly income during the rest of the life could have worked out at Rs 3750. On that basis, 12 months earning would have been Rs 45, 000 and adopting a multiplier of 15 looking to the young age of the deceased the total economical gain to his estate would work out at Rs 6, 75, 000 at least. But taking a conservative figure of Rs 6 lakhs it can easily be visualised that the claimants who are the parents and unmarried sister and who are dependent on him would have got at least 1/3 amount as he would have spent the rest of 2/3 amount of his earnings on his own family which he would have raised and on himself. This would come to a figure of Rs 2 lakhs. This can easily be treated to be the appropriate compensation payable to the claimants on account of economical loss suffered by them as a result of the unfortunate accident to their breadwinner. The High Court has granted the compensation of Rs 1, 27, 000 so that the remaining amount which can be assessed as payable by the respondents would be Rs 73, 000 more4. | 1[ds]Therefore, we can easily visualise that his total earnings would have gone up by at least Rs 5000 per month by the time he would have rested on his oars and given up his work as a journalist after exhausting his full earning career. Consequently, the total amount would work out at Rs 7500 per month during the whole span of future career and taking an average at 50%, his future monthly income during the rest of the life could have worked out at Rs 3750. On that basis, 12 months earning would have been Rs 45, 000 and adopting a multiplier of 15 looking to the young age of the deceased the total economical gain to his estate would work out at Rs 6, 75, 000 at least. But taking a conservative figure of Rs 6 lakhs it can easily be visualised that the claimants who are the parents and unmarried sister and who are dependent on him would have got at least 1/3 amount as he would have spent the rest of 2/3 amount of his earnings on his own family which he would have raised and on himself. This would come to a figure of Rs 2 lakhs. This can easily be treated to be the appropriate compensation payable to the claimants on account of economical loss suffered by them as a result of the unfortunate accident to their breadwinner. The High Court has granted the compensation of Rs 1, 27, 000 so that the remaining amount which can be assessed as payable by the respondents would be Rs 73, 000 more | 1 | 824 | 286 | ### Instruction:
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1. Leave granted. Though Respondents 1 and 2 are served, nobody has put in an appearance for them2. The short question is as to what is the appropriate compensation payable to the claimants on account of the death of their breadwinner on whom they were depending. The claimants are the parents and sister of the deceased. The fatal incident occurred to one Aloysius Felix Machado, who was a journalist driving a motorcycle which was run over by the offending car on 1-1-1988. The car was insured by the owner, Respondent 2 with Respondent 3 Insurance Company. On account of this fatal injury caused to the said driver of the motorcycle, his parents and his unmarried sister, who were depending on him, filed the present claim petition before the Motor Accidents Claims Tribunal, Bangalore. They joined the driver of the car, the owner thereof and the Insurance Company as Opponents 1, 2 and 3. The Tribunal after recording evidence and considering the same came to the conclusion that the fatal accident was caused on account of rash and negligent driving by the driver of the car. The Tribunal then proceeded to compute compensation to be awarded to the claimants and arrived at a total figure of Rs 52, 800 which was made payable with 9% interest from the date of filing the petition till date of payment. This amount was made payable jointly and severally by the three opponents including Respondent 3, the Insurance Company. There was a direction that the Insurance Company shall make the payment awarded within three months from the date of the judgment. The claimants carried the matter in appeal seeking enhanced compensation. The respondent did not challenge the award of compensation as granted by the Tribunal. In the claimants appeal the High Court thought it fit to enhance the compensation and raised it to Rs 1, 27, 000 and made it payable jointly and severally by all the three respondents. The claimants in search of further enhanced compensation have come to this Court by way of this appeal on special leave3. We have heard learned counsel for the appellant-claimants as well as learned counsel for the Insurance Company, who is the real contesting party at this stage and who has to bear the burden of total amount of compensation made payable to the claimants. We may note certain salient features of the case which are not in dispute. The deceased was earning Rs 2500 per month in his vocation as a journalist at the relevant time. He, was aged 31 years when his life was cut short because of the unfortunate accident. Learned counsel for the claimants contended that he was also earning extra income, but as there is no clear evidence, we will proceed on the basis that he was earning Rs 2500 per month at least. As he died at a comparatively younger age of 31 years, he had a very lucrative career before him for a number of years had he survived. Therefore, we can easily visualise that his total earnings would have gone up by at least Rs 5000 per month by the time he would have rested on his oars and given up his work as a journalist after exhausting his full earning career. Consequently, the total amount would work out at Rs 7500 per month during the whole span of future career and taking an average at 50%, his future monthly income during the rest of the life could have worked out at Rs 3750. On that basis, 12 months earning would have been Rs 45, 000 and adopting a multiplier of 15 looking to the young age of the deceased the total economical gain to his estate would work out at Rs 6, 75, 000 at least. But taking a conservative figure of Rs 6 lakhs it can easily be visualised that the claimants who are the parents and unmarried sister and who are dependent on him would have got at least 1/3 amount as he would have spent the rest of 2/3 amount of his earnings on his own family which he would have raised and on himself. This would come to a figure of Rs 2 lakhs. This can easily be treated to be the appropriate compensation payable to the claimants on account of economical loss suffered by them as a result of the unfortunate accident to their breadwinner. The High Court has granted the compensation of Rs 1, 27, 000 so that the remaining amount which can be assessed as payable by the respondents would be Rs 73, 000 more4.
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Therefore, we can easily visualise that his total earnings would have gone up by at least Rs 5000 per month by the time he would have rested on his oars and given up his work as a journalist after exhausting his full earning career. Consequently, the total amount would work out at Rs 7500 per month during the whole span of future career and taking an average at 50%, his future monthly income during the rest of the life could have worked out at Rs 3750. On that basis, 12 months earning would have been Rs 45, 000 and adopting a multiplier of 15 looking to the young age of the deceased the total economical gain to his estate would work out at Rs 6, 75, 000 at least. But taking a conservative figure of Rs 6 lakhs it can easily be visualised that the claimants who are the parents and unmarried sister and who are dependent on him would have got at least 1/3 amount as he would have spent the rest of 2/3 amount of his earnings on his own family which he would have raised and on himself. This would come to a figure of Rs 2 lakhs. This can easily be treated to be the appropriate compensation payable to the claimants on account of economical loss suffered by them as a result of the unfortunate accident to their breadwinner. The High Court has granted the compensation of Rs 1, 27, 000 so that the remaining amount which can be assessed as payable by the respondents would be Rs 73, 000 more
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Union Carbide Corporation Vs. Union of India and others | truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France said: Truth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believed in the triumph of truth and justice. That is what upholds me in times of trial. 22. As to the remaining question, it has been said that many vital juristic principles of great contemporary relevance to the Third World generally, and to India in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multinationals arose in this case. It is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. This case also, it is said, concerns the legal limits to be envisaged, in the vital interest of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. The prospect of exploitation of cheap labour and of captive markets, it is said, induces multinationals to enter into the developing countries for such economic exploitation and that this was eminently and appropriate case for a careful assessment off the legal and constitutional safeguards stemming from these vital issues of great contemporary relevance. 23. These issues and certain cognate areas of even wider significance and the limits off the adjudicate disposition of some of their aspects are indeed questions of seminal importance. The culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology options. Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate a comprehensive sense in which contexts arise. These, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concern. 24. The chemical pesticide industry is a concomitant, and indeed, an integral part, of the Technology of Chemical Farming. Some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic hard technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable, soft technology with its systemic wisdom and opportunities for human creativity and initiative. Wisdom demands says Schumacher a new orientation of science and technology towards the organic, the gentle, the elegant and beautiful. The other view stressing the spectacular success of agricultural production in the new era of chemical framing, with high-yielding strains, points to the breakthrough achieved by the Green Revolution with its effective response to, and successful management of, the great challenges of feeding the millions. This technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. This, say its critics, has brought in its trial its own serious problems. The technology options before scientists and planners have been difficult. Indeed, there is also need to evolve a national policy to protect national interest from such ultra-hazardous pursuits of economic gains. Justice, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction. 25. One aspect of this matter was dealt with by this Court in M. C. Mehta v. Union of India (Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674 : SCC 674 : 1989 SCC (Cri) 243 ) which marked a significant stage in the development of the law. But, at the hearing there was more than a mere hint in the submissions of the Union Carbide that in this case the law was altered with only the Union Carbide Corporation in mind, and was altered to its disadvantage even before the case had reached this Court. The criticism of the Mehta principles, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social limits on economic adventurism. There are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. We may note a passage in Theories of Compensation (R. E. Goodin, Oxford Journal of Legal Studies, 1989, p. 57). It would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. Such a proposition would mistake part of the policy universe for the whole. The set of policies to which it points - policies that are permissible, but only with compensation - is bounded on the one side by a set of policies that are permissible, even without compensation and on the other side by a set of policies that are impermissible, even with compensation. 26. But, in the present case, the compulsions of the need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. The tremendous suffering of thousands of persons compelled us to move into the direction of immediate relied which, we though, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff. 27. | 1[ds]The court also took into consideration the general run of damages in comparable accident claim cases and in cases under workmens compensation laws. The broad allocations made are higher than those awarded or awardable in such claims. These apportionments are merely broad considerations generally guiding the idea of reasonableness of the overall basis of settlement. This exercise is not a pre-determination of the quantum of compensation amongst the claimants either individually or categorywise. No individual claimant shall be entitled to claim a particular quantum of compensation even if his case is found to fall within any of the broad categories indicated above. The determination of the actual quantum of compensation payable to the claimants has to be done by the authorities under the Act, on the basis of the facts of each case and without reference to the hypothetical quantifications made only for purpose of an overall view of the adequacy of the amountThese are the broad and general assumptions underlying the concept of justness of the determination of the quantum. If the total number of cases of death or of permanent, total or partial, disabilities or of what may be called catastrophic injuries is shown to be so large that the basic assumptions underlying the settlement become wholly unrelated to the realities, the element of justness of the determination and of truth of its factual foundation would seriously be impaired. The justness of the settlement is based on these assumptions of truth. Indeed, there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France saidTruth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believed in the triumph of truth and justice. That is what upholds me in times of trialAs to the remaining question, it has been said that many vital juristic principles of great contemporary relevance to the Third World generally, and to India in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multinationals arose in this case. It is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. This case also, it is said, concerns the legal limits to be envisaged, in the vital interest of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. The prospect of exploitation of cheap labour and of captive markets, it is said, induces multinationals to enter into the developing countries for such economic exploitation and that this was eminently and appropriate case for a careful assessment off the legal and constitutional safeguards stemming from these vital issues of great contemporary relevanceThese issues and certain cognate areas of even wider significance and the limits off the adjudicate disposition of some of their aspects are indeed questions of seminal importance. The culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology options. Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate a comprehensive sense in which contexts arise. These, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concernThe chemical pesticide industry is a concomitant, and indeed, an integral part, of the Technology of Chemical Farming. Some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic hard technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable,technology with its systemic wisdom and opportunities for human creativity and initiative.a new orientation of science and technology towards the organic, the gentle, the elegant and. The other view stressing the spectacular success of agricultural production in the new era of chemical framing, with high-yielding strains, points to the breakthrough achieved by the Green Revolution with its effective response to, and successful management of, the great challenges of feeding the millions. This technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. This, say its critics, has brought in its trial its own serious problems. The technology options before scientists and planners have been difficultIndeed, there is also need to evolve a national policy to protect national interest from such ultra-hazardous pursuits of economic gains. Justice, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanctionOne aspect of this matter was dealt with by this Court in M. C. Mehta v. Union of India (Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674 : SCC 674 : 1989 SCC (Cri) 243 ) which marked a significant stage in the development of the law. But, at the hearing there was more than a mere hint in the submissions of the Union Carbide that in this case the law was altered with only the Union Carbide Corporation in mind, and was altered to its disadvantage even before the case had reached this Court. The criticism of the Mehta principles, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social limits on economic adventurism. There are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. We may note a passage in(R. E. Goodin, Oxford Journal of Legal Studies, 1989, p. 57)It would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. Such a proposition would mistake part of the policy universe for the whole. The set of policies to which it points - policies that are permissible, but only with compensation - is bounded on the one side by a set of policies that are permissible, even without compensation and on the other side by a set of policies that are impermissible, even with compensationBut, in the present case, the compulsions of the need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. The tremendous suffering of thousands of persons compelled us to move into the direction of immediate relied which, we though, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff | 1 | 5,341 | 1,376 | ### 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:
truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France said: Truth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believed in the triumph of truth and justice. That is what upholds me in times of trial. 22. As to the remaining question, it has been said that many vital juristic principles of great contemporary relevance to the Third World generally, and to India in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multinationals arose in this case. It is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. This case also, it is said, concerns the legal limits to be envisaged, in the vital interest of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. The prospect of exploitation of cheap labour and of captive markets, it is said, induces multinationals to enter into the developing countries for such economic exploitation and that this was eminently and appropriate case for a careful assessment off the legal and constitutional safeguards stemming from these vital issues of great contemporary relevance. 23. These issues and certain cognate areas of even wider significance and the limits off the adjudicate disposition of some of their aspects are indeed questions of seminal importance. The culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology options. Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate a comprehensive sense in which contexts arise. These, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concern. 24. The chemical pesticide industry is a concomitant, and indeed, an integral part, of the Technology of Chemical Farming. Some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic hard technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable, soft technology with its systemic wisdom and opportunities for human creativity and initiative. Wisdom demands says Schumacher a new orientation of science and technology towards the organic, the gentle, the elegant and beautiful. The other view stressing the spectacular success of agricultural production in the new era of chemical framing, with high-yielding strains, points to the breakthrough achieved by the Green Revolution with its effective response to, and successful management of, the great challenges of feeding the millions. This technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. This, say its critics, has brought in its trial its own serious problems. The technology options before scientists and planners have been difficult. Indeed, there is also need to evolve a national policy to protect national interest from such ultra-hazardous pursuits of economic gains. Justice, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction. 25. One aspect of this matter was dealt with by this Court in M. C. Mehta v. Union of India (Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674 : SCC 674 : 1989 SCC (Cri) 243 ) which marked a significant stage in the development of the law. But, at the hearing there was more than a mere hint in the submissions of the Union Carbide that in this case the law was altered with only the Union Carbide Corporation in mind, and was altered to its disadvantage even before the case had reached this Court. The criticism of the Mehta principles, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social limits on economic adventurism. There are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. We may note a passage in Theories of Compensation (R. E. Goodin, Oxford Journal of Legal Studies, 1989, p. 57). It would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. Such a proposition would mistake part of the policy universe for the whole. The set of policies to which it points - policies that are permissible, but only with compensation - is bounded on the one side by a set of policies that are permissible, even without compensation and on the other side by a set of policies that are impermissible, even with compensation. 26. But, in the present case, the compulsions of the need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. The tremendous suffering of thousands of persons compelled us to move into the direction of immediate relied which, we though, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff. 27.
### Response:
1
### Explanation:
the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France saidTruth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believed in the triumph of truth and justice. That is what upholds me in times of trialAs to the remaining question, it has been said that many vital juristic principles of great contemporary relevance to the Third World generally, and to India in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multinationals arose in this case. It is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. This case also, it is said, concerns the legal limits to be envisaged, in the vital interest of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. The prospect of exploitation of cheap labour and of captive markets, it is said, induces multinationals to enter into the developing countries for such economic exploitation and that this was eminently and appropriate case for a careful assessment off the legal and constitutional safeguards stemming from these vital issues of great contemporary relevanceThese issues and certain cognate areas of even wider significance and the limits off the adjudicate disposition of some of their aspects are indeed questions of seminal importance. The culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology options. Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate a comprehensive sense in which contexts arise. These, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concernThe chemical pesticide industry is a concomitant, and indeed, an integral part, of the Technology of Chemical Farming. Some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic hard technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable,technology with its systemic wisdom and opportunities for human creativity and initiative.a new orientation of science and technology towards the organic, the gentle, the elegant and. The other view stressing the spectacular success of agricultural production in the new era of chemical framing, with high-yielding strains, points to the breakthrough achieved by the Green Revolution with its effective response to, and successful management of, the great challenges of feeding the millions. This technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. This, say its critics, has brought in its trial its own serious problems. The technology options before scientists and planners have been difficultIndeed, there is also need to evolve a national policy to protect national interest from such ultra-hazardous pursuits of economic gains. Justice, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanctionOne aspect of this matter was dealt with by this Court in M. C. Mehta v. Union of India (Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674 : SCC 674 : 1989 SCC (Cri) 243 ) which marked a significant stage in the development of the law. But, at the hearing there was more than a mere hint in the submissions of the Union Carbide that in this case the law was altered with only the Union Carbide Corporation in mind, and was altered to its disadvantage even before the case had reached this Court. The criticism of the Mehta principles, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social limits on economic adventurism. There are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. We may note a passage in(R. E. Goodin, Oxford Journal of Legal Studies, 1989, p. 57)It would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. Such a proposition would mistake part of the policy universe for the whole. The set of policies to which it points - policies that are permissible, but only with compensation - is bounded on the one side by a set of policies that are permissible, even without compensation and on the other side by a set of policies that are impermissible, even with compensationBut, in the present case, the compulsions of the need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. The tremendous suffering of thousands of persons compelled us to move into the direction of immediate relied which, we though, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff
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R. B. Seth Champalal Ram Swarup Vs. Commissioner of Income Tax, East Punjab, Ajmer and Delhi | there was a debit balance of Rs. 9, 017. The assessee purchased Amolakchand Mewarams card of the East India Cotton Association for a sum of Rs. 20, 000 resulting in a credit balance in favour of M/s Amolakchand Mewaram of Rs. 11, 253. Thereafter there was only one debit entry of Rs. 980 in Samvat year 1996-97, and in the relevant accounting year the balance was to the credit of Amolakchand Mewaram in the sum of Rs. 10, 273. The two new accounts, Amolakchand Mewaram Mortgage account and Amolakchand Mewaram pro-note account had been carried forward from year to year but no interest had been charged on these accounts. In the current account, interest had been charged up to the Samvat year 1988-89 (1931-32) only and not thereafter 4. The assessee was adjudicated insolvent by the Bombay High Court in July, 1938. Thereafter, a scheme of composition was sanctioned by the same High Court and the adjudication order was annulled on April 15, 1941. 5. The facts relating to the second bad debt of Rs. 16, 005 were these. This amount was due from one Mansukh Lal Panthu Lal. A decree from the Bombay High Court was obtained by the assessee against the debtor in 1932. The decree was executable for 12 years, but as a matter of fact no effort was made to execute the decree and to recover this amount. On these facts, the Appellate Tribunal held that the money was not advanced to the firm Amolakchand Mewaram in the course of money-lending business. It further held that the debt of Rs. 3, 25, 000 became bad long ago. Regarding the bad debt of Rs. 16, 005 the Tribunal also held that the amount was not advanced in the course of money-lending business and that the debt had become bad prior to the year of account. The High Court answered all the three questions against the assessee and in favour of the department. The assessee having obtained special leave, the appeal is now before usIt is not necessary to deal with the questions (1) and (2) because if the answer to the question (3) is given against the assessee the appeal must fail. The High Court in rejecting the claim of the assessee observed: " In order to succeed in claiming that a debt has become bad it is incumbent upon the assessee to establish that the debt was good immediately at the commencement of the relevant year of account and that it had become bad during the year of account. In the present case the pronote for Rs. 3, 25, 000 was taken as far back as the 3rd November, 1932 and the assessee is claiming it as had in the year ending October, 1941, i.e., almost after a decade. During this decade the assessee did not charge any interest, nor did it take any legal steps to recover the amounts due. The evidence of the assessee and the debtor apart from it being only self-serving statement is extremely vague and it does not at all show that there could possibly have been any ray of hope still lingering in the assessees mind that any part of this debt of Rs. 3, 25, 000 could be recovered. No doubt the debtor has given a long list of suits in which he was expecting that decrees would be passed in his favour but most of those expectations were shattered long before the relevant year of account. At best, he could only have had hope of realising something from a decree against Baij Nath Gauri Dutt. But even that suit was decided by the Civil judge of Mathura on the 29th March, 1940, against him. Even if this could be said to have been a flicker of hope it was completely snuffed in the assessment year 1941-42 and no possible hope could have survived justifying the assessee in claiming the debt as bad in the relevant assessment year 1942-43. On a consideration of the evidence on the record it cannot be said that there was no material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account."The learned counsel for the assessee tried to argue that there was not sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was not open to him, on the question as framed, to go into the question whether the Tribunal should or should not have come to the findings it did. What we are concerned with is whether there is any material on which the Tribunal could arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account. 6. The material on which the Tribunal could well come to the conclusion that the debts had become bad earlier than the relevant accounting year is in brief as follows " 1. Regarding debt of Rs. 3, 25, 000 (1) Shantilal was the younger brother of Motilal ; (2) On November 3, 1932, when the pro-note for Rs. 3, 25, 000 was executed the assessee had taken over major assets of the debtor ; (3) The last asset, viz., card of East India Cotton Association, was taken over for a sum of Rs. 20, 000 in the Samvat year 1994-95 ; (4) No interest was charged on the two accounts, Amolakchand Mewaram mortgage account and Amolakchand Mewaram pronote account ; and (5) No legal steps were taken to recover this debt all this time II. Regarding the debt of Rs. 16, 005 Although decree was obtained by the assessee against the debtor in 1932, no steps were taken to execute the decree." | 0[ds]On a consideration of the evidence on the record it cannot be said that there was no material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account."The learned counsel for the assessee tried to argue that there was not sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was not open to him, on the question as framed, to go into the question whether the Tribunal should or should not have come to the findings it did. What we are concerned with is whether there is any material on which the Tribunal could arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account. | 0 | 1,706 | 192 | ### 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:
there was a debit balance of Rs. 9, 017. The assessee purchased Amolakchand Mewarams card of the East India Cotton Association for a sum of Rs. 20, 000 resulting in a credit balance in favour of M/s Amolakchand Mewaram of Rs. 11, 253. Thereafter there was only one debit entry of Rs. 980 in Samvat year 1996-97, and in the relevant accounting year the balance was to the credit of Amolakchand Mewaram in the sum of Rs. 10, 273. The two new accounts, Amolakchand Mewaram Mortgage account and Amolakchand Mewaram pro-note account had been carried forward from year to year but no interest had been charged on these accounts. In the current account, interest had been charged up to the Samvat year 1988-89 (1931-32) only and not thereafter 4. The assessee was adjudicated insolvent by the Bombay High Court in July, 1938. Thereafter, a scheme of composition was sanctioned by the same High Court and the adjudication order was annulled on April 15, 1941. 5. The facts relating to the second bad debt of Rs. 16, 005 were these. This amount was due from one Mansukh Lal Panthu Lal. A decree from the Bombay High Court was obtained by the assessee against the debtor in 1932. The decree was executable for 12 years, but as a matter of fact no effort was made to execute the decree and to recover this amount. On these facts, the Appellate Tribunal held that the money was not advanced to the firm Amolakchand Mewaram in the course of money-lending business. It further held that the debt of Rs. 3, 25, 000 became bad long ago. Regarding the bad debt of Rs. 16, 005 the Tribunal also held that the amount was not advanced in the course of money-lending business and that the debt had become bad prior to the year of account. The High Court answered all the three questions against the assessee and in favour of the department. The assessee having obtained special leave, the appeal is now before usIt is not necessary to deal with the questions (1) and (2) because if the answer to the question (3) is given against the assessee the appeal must fail. The High Court in rejecting the claim of the assessee observed: " In order to succeed in claiming that a debt has become bad it is incumbent upon the assessee to establish that the debt was good immediately at the commencement of the relevant year of account and that it had become bad during the year of account. In the present case the pronote for Rs. 3, 25, 000 was taken as far back as the 3rd November, 1932 and the assessee is claiming it as had in the year ending October, 1941, i.e., almost after a decade. During this decade the assessee did not charge any interest, nor did it take any legal steps to recover the amounts due. The evidence of the assessee and the debtor apart from it being only self-serving statement is extremely vague and it does not at all show that there could possibly have been any ray of hope still lingering in the assessees mind that any part of this debt of Rs. 3, 25, 000 could be recovered. No doubt the debtor has given a long list of suits in which he was expecting that decrees would be passed in his favour but most of those expectations were shattered long before the relevant year of account. At best, he could only have had hope of realising something from a decree against Baij Nath Gauri Dutt. But even that suit was decided by the Civil judge of Mathura on the 29th March, 1940, against him. Even if this could be said to have been a flicker of hope it was completely snuffed in the assessment year 1941-42 and no possible hope could have survived justifying the assessee in claiming the debt as bad in the relevant assessment year 1942-43. On a consideration of the evidence on the record it cannot be said that there was no material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account."The learned counsel for the assessee tried to argue that there was not sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was not open to him, on the question as framed, to go into the question whether the Tribunal should or should not have come to the findings it did. What we are concerned with is whether there is any material on which the Tribunal could arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account. 6. The material on which the Tribunal could well come to the conclusion that the debts had become bad earlier than the relevant accounting year is in brief as follows " 1. Regarding debt of Rs. 3, 25, 000 (1) Shantilal was the younger brother of Motilal ; (2) On November 3, 1932, when the pro-note for Rs. 3, 25, 000 was executed the assessee had taken over major assets of the debtor ; (3) The last asset, viz., card of East India Cotton Association, was taken over for a sum of Rs. 20, 000 in the Samvat year 1994-95 ; (4) No interest was charged on the two accounts, Amolakchand Mewaram mortgage account and Amolakchand Mewaram pronote account ; and (5) No legal steps were taken to recover this debt all this time II. Regarding the debt of Rs. 16, 005 Although decree was obtained by the assessee against the debtor in 1932, no steps were taken to execute the decree."
### Response:
0
### Explanation:
On a consideration of the evidence on the record it cannot be said that there was no material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account."The learned counsel for the assessee tried to argue that there was not sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was not open to him, on the question as framed, to go into the question whether the Tribunal should or should not have come to the findings it did. What we are concerned with is whether there is any material on which the Tribunal could arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have come to the conclusion that the two debts had become bad prior to the year of account.
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SHRI GOVINDA CHANDRA TIRIA Vs. SIBAJI CHARAN PANDA & ORS | is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable. 13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact. 14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was never challenged in any proceeding, nor the terms thereof, when he was treated as a fresh appointee. It is only when the seniority list was circulated that the challenge was sought to be made to the seniority list, in an oblique manner, and the terms and conditions of the absorption were sought to be assailed. This is not permissible. 15. Learned counsel for the appellant has also drawn our attention to the judgment of this Court in Mrigank Johri & Ors. v. Union of India & Ors.2, wherein it has been held that benefit of past service rendered in a cadre is usually reckoned for the purpose of seniority. In the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with. 16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption. 17. In this behalf we may note OM NO. 20020/7/80-ESTT(D), which,in para 2 sets out that when an officer initially comes on deputation, and is subsequently absorbed, the normal principle that seniority should be counted from the date of such absorption, should mainly apply. This was, however, subject to the caveat of the O.M. dated 22nd December, 1959, which states that if such a person is absorbed in an equivalent grade on a regular basis in the parent department, such regular services in the grade should also be taken into account in fixing his seniority subject to the condition that it would be from the date he had been holding the post on deputation or from the date he had been appointed on regular basis in the same or equivalent grade in his parent department whichever is later, which was amended to make it whichever is earlier. 18. Thus, normally the deputation would be counted, but this was further made subject to the caveat that in case the transfers are not strictly in public interest, the transferred officers will be placed below all appointed regularly to the grade on the date of absorption. It is the latter clause which will apply as this was not a case strictly in public interest. 19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside. 20. We must note with some regret that the Union of India, having taken a categorical stand before the Central Administrative Tribunal, endeavoured to possibly help respondent No.1 by filing a counter affidavit before this Court, endeavouring to take a slightly different position by observing however, it is true that the MoEF objected to his continuance in the office of the Res-3 many times but extension was granted base on the request from office of the Res-3. To say the least, the Union of India should be conscious while preferring affidavits, and if they want to change the stand, they must give reasons for the same. The manner of wording the affidavit seems to be an oblique attempt and we are of the view that a closer scrutiny is necessary by the Department as to how such a counter affidavit was placed before us. 21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him. | 1[ds]We may note that all principles of law arise in the given factual situation. If we consider the factual situation of that case, which had quashed a part of OM No.20020/7/80-ESTT (D) dated 29.5.1986 insofar as it provided for whichever is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was never challenged in any proceeding, nor the terms thereof, when he was treated as a fresh appointee. It is only when the seniority list was circulated that the challenge was sought to be made to the seniority list, in an oblique manner, and the terms and conditions of the absorption were sought to be assailed. This is not permissibleIn the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption17. In this behalf we may note OM NO. 20020/7/80-ESTT(D), which,in para 2 sets out that when an officer initially comes on deputation, and is subsequently absorbed, the normal principle that seniority should be counted from the date of such absorption, should mainly apply. This was, however, subject to the caveat of the O.M. dated 22nd December, 1959, which states that if such a person is absorbed in an equivalent grade on a regular basis in the parent department, such regular services in the grade should also be taken into account in fixing his seniority subject to the condition that it would be from the date he had been holding the post on deputation or from the date he had been appointed on regular basis in the same or equivalent grade in his parent department whichever is later, which was amended to make it whichever is earlier18. Thus, normally the deputation would be counted, but this was further made subject to the caveat that in case the transfers are not strictly in public interest, the transferred officers will be placed below all appointed regularly to the grade on the date of absorption. It is the latter clause which will apply as this was not a case strictly in public interest19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him. | 1 | 3,670 | 924 | ### Instruction:
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is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable. 13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact. 14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was never challenged in any proceeding, nor the terms thereof, when he was treated as a fresh appointee. It is only when the seniority list was circulated that the challenge was sought to be made to the seniority list, in an oblique manner, and the terms and conditions of the absorption were sought to be assailed. This is not permissible. 15. Learned counsel for the appellant has also drawn our attention to the judgment of this Court in Mrigank Johri & Ors. v. Union of India & Ors.2, wherein it has been held that benefit of past service rendered in a cadre is usually reckoned for the purpose of seniority. In the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with. 16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption. 17. In this behalf we may note OM NO. 20020/7/80-ESTT(D), which,in para 2 sets out that when an officer initially comes on deputation, and is subsequently absorbed, the normal principle that seniority should be counted from the date of such absorption, should mainly apply. This was, however, subject to the caveat of the O.M. dated 22nd December, 1959, which states that if such a person is absorbed in an equivalent grade on a regular basis in the parent department, such regular services in the grade should also be taken into account in fixing his seniority subject to the condition that it would be from the date he had been holding the post on deputation or from the date he had been appointed on regular basis in the same or equivalent grade in his parent department whichever is later, which was amended to make it whichever is earlier. 18. Thus, normally the deputation would be counted, but this was further made subject to the caveat that in case the transfers are not strictly in public interest, the transferred officers will be placed below all appointed regularly to the grade on the date of absorption. It is the latter clause which will apply as this was not a case strictly in public interest. 19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside. 20. We must note with some regret that the Union of India, having taken a categorical stand before the Central Administrative Tribunal, endeavoured to possibly help respondent No.1 by filing a counter affidavit before this Court, endeavouring to take a slightly different position by observing however, it is true that the MoEF objected to his continuance in the office of the Res-3 many times but extension was granted base on the request from office of the Res-3. To say the least, the Union of India should be conscious while preferring affidavits, and if they want to change the stand, they must give reasons for the same. The manner of wording the affidavit seems to be an oblique attempt and we are of the view that a closer scrutiny is necessary by the Department as to how such a counter affidavit was placed before us. 21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him.
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1
### Explanation:
We may note that all principles of law arise in the given factual situation. If we consider the factual situation of that case, which had quashed a part of OM No.20020/7/80-ESTT (D) dated 29.5.1986 insofar as it provided for whichever is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was never challenged in any proceeding, nor the terms thereof, when he was treated as a fresh appointee. It is only when the seniority list was circulated that the challenge was sought to be made to the seniority list, in an oblique manner, and the terms and conditions of the absorption were sought to be assailed. This is not permissibleIn the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption17. In this behalf we may note OM NO. 20020/7/80-ESTT(D), which,in para 2 sets out that when an officer initially comes on deputation, and is subsequently absorbed, the normal principle that seniority should be counted from the date of such absorption, should mainly apply. This was, however, subject to the caveat of the O.M. dated 22nd December, 1959, which states that if such a person is absorbed in an equivalent grade on a regular basis in the parent department, such regular services in the grade should also be taken into account in fixing his seniority subject to the condition that it would be from the date he had been holding the post on deputation or from the date he had been appointed on regular basis in the same or equivalent grade in his parent department whichever is later, which was amended to make it whichever is earlier18. Thus, normally the deputation would be counted, but this was further made subject to the caveat that in case the transfers are not strictly in public interest, the transferred officers will be placed below all appointed regularly to the grade on the date of absorption. It is the latter clause which will apply as this was not a case strictly in public interest19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him.
|
Bharat Singh And Anr Vs. Bhagirathi | Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act. 19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. 20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted. 21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 3. 22. P. W. 2, clerk of Shri Inder Singh Jain, pleader, scribed this plaint and has deposed that the pleader had prepared the brief in accordance with the instructions of Bhagirti and that he had written out the petition and plaint and that it had been read out to her. He denied that the thumb marks of Bhagirti were secured on a plain paper and that the plaint was written later on. This suit was withdrawn. 23. Again, in 1950, she instituted another suit against the present plaintiffs and one Har Narain, for a certain declaration. In para 1 of the plaint it was stated that the three shops mentioned therein belonged to the joint Hindu family firm Jairam Das Ram Narain in Narela Mandi, Delhi State. The plaint is Exhibit P-1. Shri M. K. Madan, Advocate, P. W. 1, has deposed that the plaint was got written by Bhagriti, that a portion of the plaint was in his handwriting and that it was read over to her and that she put her thumb mark on it after having heard and admitted its contents. He also stated that the suit was subsequently withdrawn. 24. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right. 25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation. | 1[ds]11. We are of opinion that the High Court was in error in relying on these admissions of Bharat Singh when he had explained them reasonably12. The oral evidence adduced for the defendant to prove separation of Maha Chand from his brothers, has been rightly described to be worthless by the trial Court. No reliance on that evidence was placed on behalf of the respondent in the High Court. The evidence consists of the statements of three persons. Munshi Ram, D. W. 1, brother of defendant, who was about 10 years old when Maha Chand died, simply states that at the time of Maha Chands death, he was separate from his brothers. He admitted in cross-examination that this he had learnt from his father. His evidence is hear-say and is of no value15. We are, therefore, of opinion that the evidence relied on by the High Court for holding the disruption proved together with the oral evidence led by the defendant about disruption of the family is in sufficient to prove disruption after the death of Ram Narain and during the life-time of Maha Chand16. It is not necessary to discuss the evidence for the plaintiffs about the family being joint when Maha Chand died. Suffice, it to say that apart from the statement of Bharat Singh, P. W. 7, there is other evidence to establish it. Shiv Narain, P. W. 4, deposed that when Ram Narain was alive he and his brothers constituted a joint Hindu family upto the death of Maha Chand and that the joint family continued upto the date he gave evidence. He was not cross-examined with regard to his statements. Jai Lal, P. W. 5, deposed to the same effect. In cross-examination he stated that had there been a son of Maha Chand, he would have got one-third share of Maha Chand and that all the three brother had one-third share each, in the property. The statement does not mean that there had been disruption in the family. We do not know in what form the questions to which these are the answers were put. The answers are consistent with the fact that had separation taken place during the life-time of Maha Chand, his share would have been one-third and that his one-third share would have gone to his son or that the entries in the village papers would show Maha Chands son being mutated over the one-third share of Maha Chand just as Bhagirtis name was mutated in place of Maha Chand17. Reliance was also placed for the plaintiffs on the admissions of Bhagirti. The High Court did not take these admissions into consideration as they were not put to her when she was in the witness box and as in its opinion the documents containing the alleged admissions if read as a whole did not contain any admissions on behalf of Bhagirti that there was any joint family still in existence18. The legal objection to the consideration of these admissions was based on the Full Bench decision of the Punjab High Court in Firm Malik Des Raj v. Firm Piara Lal, AIR 1946 Lah 65 (FB). The view taken in that case was differed to by the Full Bench decision of the Allahabad High Court in Ajodhya Prasad v. Bhawani Shanker, (S) AIR 1957 All 1 (FB). The Punjab High Court based its decision on the observations of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 324. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation. | 1 | 4,763 | 1,475 | ### Instruction:
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Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act. 19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. 20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted. 21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 3. 22. P. W. 2, clerk of Shri Inder Singh Jain, pleader, scribed this plaint and has deposed that the pleader had prepared the brief in accordance with the instructions of Bhagirti and that he had written out the petition and plaint and that it had been read out to her. He denied that the thumb marks of Bhagirti were secured on a plain paper and that the plaint was written later on. This suit was withdrawn. 23. Again, in 1950, she instituted another suit against the present plaintiffs and one Har Narain, for a certain declaration. In para 1 of the plaint it was stated that the three shops mentioned therein belonged to the joint Hindu family firm Jairam Das Ram Narain in Narela Mandi, Delhi State. The plaint is Exhibit P-1. Shri M. K. Madan, Advocate, P. W. 1, has deposed that the plaint was got written by Bhagriti, that a portion of the plaint was in his handwriting and that it was read over to her and that she put her thumb mark on it after having heard and admitted its contents. He also stated that the suit was subsequently withdrawn. 24. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right. 25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation.
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1
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that his one-third share would have gone to his son or that the entries in the village papers would show Maha Chands son being mutated over the one-third share of Maha Chand just as Bhagirtis name was mutated in place of Maha Chand17. Reliance was also placed for the plaintiffs on the admissions of Bhagirti. The High Court did not take these admissions into consideration as they were not put to her when she was in the witness box and as in its opinion the documents containing the alleged admissions if read as a whole did not contain any admissions on behalf of Bhagirti that there was any joint family still in existence18. The legal objection to the consideration of these admissions was based on the Full Bench decision of the Punjab High Court in Firm Malik Des Raj v. Firm Piara Lal, AIR 1946 Lah 65 (FB). The view taken in that case was differed to by the Full Bench decision of the Allahabad High Court in Ajodhya Prasad v. Bhawani Shanker, (S) AIR 1957 All 1 (FB). The Punjab High Court based its decision on the observations of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 324. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation.
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NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY Vs. LT. COL. J. B. KUCHHAL (DEAD) | and NOIDA Export Processing Zone Complex. The total land proposed to be acquired is 91-11-0 bighas and out if this 25-19-7 bighas is marked for residential complex, 2-4-0 bighas for road, 9 bighas for bus depot and 54-7-13 bighas for green belt. There was a big Nala having width of about 80 ft. and green belt proposed on both sides of Nala. It was denied that the appellant has no scheme or plan and the requirement is for public purpose.11. The High Court noticed that the same notifications were challenged by one Daya Ram Tyagi and some other tenure holders and that the writ petitions had been dismissed. The said judgment of the High Court has been reversed in appeal by this Court vide judgment dated 23.08.2011 in Civil Appeal No. 7237 of 2011 Daya Ram Tyagi (D) through LRS. and others v. State of UP and others and the impugned notifications have been quashed. The Court held as under:"21. Though, various authorities have been cited at the Bar but we find that in respect of acquisition notifications in question, the matter is squarely covered by Supreme Courts judgement in Daya Ram Tyagi and others (supra) wherein these very notifications have been quashed on the ground of illegal exercise of power under Section17 and dispensation of inquiry under Section 5A of the Act, 1894. Since these very acquisition notifications were involved in the aforesaid judgment, the same is binding on us and we cannot take a different view."12. Therefore, the High Court allowed the writ petitions and quashed the impugned notifications in so far as the writ petitioners lands are concerned.13. Having heard Shri Ranjit Kumar, learned senior counsel for the appellant and Dr. A.M. Singhvi, learned senior counsel appearing for the writ petitioners, we are of the view that the High Court was justified in quashing the notification having regard to the judgment of this Court in Daya Ram Tyagi (supra).14. At this stage, Shri Ranjit Kumar submits that the High Court was not justified in directing determination of compensation of lands in dispute at twice the market value which would be determined in ac- cordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It was further contended by Shri Ranjit Kumar that the writ petitioners had failed to establish their right and title in the land ac- quired. Therefore, the question of payment of compensation to the writ petitioners does not arise.15. On the other hand, Dr. Singhvi submits that the writ petitioners have produced documentary evidence in support of their contentions that they are the owners of the land. In this regard, he has taken us through the materials produced before the High Court.16. The High Court has considered this issue. The reasons assigned for determination of compensation are as under:"23. It is in these peculiar facts and circum- stances and looking to the facts that though re- spondents are clearly guilty of going ahead with constructions over a land which was not legally acquired and acquisition notification was already set aside by Supreme Court vide judgement dated 23 rd August, 2011, in respect of some of the ten- ure holders whose land was also acquired under same acquisition notifications, therefore, respon- dents should have been careful enough not to create/change nature of property till pending writ petitions are decided, but they went ahead and changed nature of land in dispute ignoring com- pletely illegality they have already committed and also suffered in some cases involving same dis- pute and acquisition notifications.This act on the part of respondents needs to be deprecated. We have no hesitation in holding that authority concerned who permitted it, went to the extent of undertaking illegal construction putting huge public exchequer at risk.24. Having said so still we find that it would be very harsh on the part of this Court to get entire constructions demolished and restore possession of disputed land of petitioners.25. In the facts and circumstances, we mould re- lief and allow both these writ petitions in follow- ing manner:i) Acquisition notifications dated 30 th November, 1989 and 16 th June,1990 in so far as relate to petitioners? land are hereby quashed, since dis- pensation of inquiry under Section 5A by invoca- tion of urgency under Section 17 is patently ille- gal as held in judgement of Supreme Court in Daya Ram Tyagi and others (supra).(ii) Respondents shall determine compensation of disputed land at twice market value which would be determined in accordance with provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettle- ment Act, 2013, and pay the same to petitioners within three months from the date of judgment, failing which they shall restore possession of dis- puted land to petitioners by removing construc- tions, if any, raised thereon.(iii) Petitioners shall also be entitled to cost which we quantify to Rs.5,00,000/- in each set of writ petition?17. It is necessary to notice that it has now been almost 28 years since the subject land had been notified for acquisition. The appellant has put up construction over the land without acquisition of the said land putting public exchequer at risk. It is no doubt true that the writ petition was dismissed for default. However, it has been restored sub- sequently and the restoration order has not been challenged. The ap- pellant has not produced any document to substantiate its contention that the writ petitioners are not the title holders of the land. On the other hand the writ petitioners have produced their title deeds in rela- tion to the said land.18. We are of the view that the appellant is not justified in contend- ing that the writ petitioners are not the title holders of the land. Hav- ing regard to the facts and circumstances of the case, we are also of the view that the direction of the High Court for determination of com- pensation of the disputed land is just and proper. | 0[ds]13. Having heard Shri Ranjit Kumar, learned senior counsel for the appellant and Dr. A.M. Singhvi, learned senior counsel appearing for the writ petitioners, we are of the view that the High Court was justified in quashing the notification having regard to the judgment of this Court in Daya Ram Tyagi (supra).It is necessary to notice that it has now been almost 28 years since the subject land had been notified for acquisition. The appellant has put up construction over the land without acquisition of the said land putting public exchequer at risk. It is no doubt true that the writ petition was dismissed for default. However, it has been restored sub- sequently and the restoration order has not been challenged. The ap- pellant has not produced any document to substantiate its contention that the writ petitioners are not the title holders of the land. On the other hand the writ petitioners have produced their title deeds in rela- tion to the said land.18. We are of the view that the appellant is not justified in contend- ing that the writ petitioners are not the title holders of the land. Hav- ing regard to the facts and circumstances of the case, we are also of the view that the direction of the High Court for determination of com- pensation of the disputed land is just and proper. | 0 | 1,832 | 249 | ### 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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and NOIDA Export Processing Zone Complex. The total land proposed to be acquired is 91-11-0 bighas and out if this 25-19-7 bighas is marked for residential complex, 2-4-0 bighas for road, 9 bighas for bus depot and 54-7-13 bighas for green belt. There was a big Nala having width of about 80 ft. and green belt proposed on both sides of Nala. It was denied that the appellant has no scheme or plan and the requirement is for public purpose.11. The High Court noticed that the same notifications were challenged by one Daya Ram Tyagi and some other tenure holders and that the writ petitions had been dismissed. The said judgment of the High Court has been reversed in appeal by this Court vide judgment dated 23.08.2011 in Civil Appeal No. 7237 of 2011 Daya Ram Tyagi (D) through LRS. and others v. State of UP and others and the impugned notifications have been quashed. The Court held as under:"21. Though, various authorities have been cited at the Bar but we find that in respect of acquisition notifications in question, the matter is squarely covered by Supreme Courts judgement in Daya Ram Tyagi and others (supra) wherein these very notifications have been quashed on the ground of illegal exercise of power under Section17 and dispensation of inquiry under Section 5A of the Act, 1894. Since these very acquisition notifications were involved in the aforesaid judgment, the same is binding on us and we cannot take a different view."12. Therefore, the High Court allowed the writ petitions and quashed the impugned notifications in so far as the writ petitioners lands are concerned.13. Having heard Shri Ranjit Kumar, learned senior counsel for the appellant and Dr. A.M. Singhvi, learned senior counsel appearing for the writ petitioners, we are of the view that the High Court was justified in quashing the notification having regard to the judgment of this Court in Daya Ram Tyagi (supra).14. At this stage, Shri Ranjit Kumar submits that the High Court was not justified in directing determination of compensation of lands in dispute at twice the market value which would be determined in ac- cordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It was further contended by Shri Ranjit Kumar that the writ petitioners had failed to establish their right and title in the land ac- quired. Therefore, the question of payment of compensation to the writ petitioners does not arise.15. On the other hand, Dr. Singhvi submits that the writ petitioners have produced documentary evidence in support of their contentions that they are the owners of the land. In this regard, he has taken us through the materials produced before the High Court.16. The High Court has considered this issue. The reasons assigned for determination of compensation are as under:"23. It is in these peculiar facts and circum- stances and looking to the facts that though re- spondents are clearly guilty of going ahead with constructions over a land which was not legally acquired and acquisition notification was already set aside by Supreme Court vide judgement dated 23 rd August, 2011, in respect of some of the ten- ure holders whose land was also acquired under same acquisition notifications, therefore, respon- dents should have been careful enough not to create/change nature of property till pending writ petitions are decided, but they went ahead and changed nature of land in dispute ignoring com- pletely illegality they have already committed and also suffered in some cases involving same dis- pute and acquisition notifications.This act on the part of respondents needs to be deprecated. We have no hesitation in holding that authority concerned who permitted it, went to the extent of undertaking illegal construction putting huge public exchequer at risk.24. Having said so still we find that it would be very harsh on the part of this Court to get entire constructions demolished and restore possession of disputed land of petitioners.25. In the facts and circumstances, we mould re- lief and allow both these writ petitions in follow- ing manner:i) Acquisition notifications dated 30 th November, 1989 and 16 th June,1990 in so far as relate to petitioners? land are hereby quashed, since dis- pensation of inquiry under Section 5A by invoca- tion of urgency under Section 17 is patently ille- gal as held in judgement of Supreme Court in Daya Ram Tyagi and others (supra).(ii) Respondents shall determine compensation of disputed land at twice market value which would be determined in accordance with provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettle- ment Act, 2013, and pay the same to petitioners within three months from the date of judgment, failing which they shall restore possession of dis- puted land to petitioners by removing construc- tions, if any, raised thereon.(iii) Petitioners shall also be entitled to cost which we quantify to Rs.5,00,000/- in each set of writ petition?17. It is necessary to notice that it has now been almost 28 years since the subject land had been notified for acquisition. The appellant has put up construction over the land without acquisition of the said land putting public exchequer at risk. It is no doubt true that the writ petition was dismissed for default. However, it has been restored sub- sequently and the restoration order has not been challenged. The ap- pellant has not produced any document to substantiate its contention that the writ petitioners are not the title holders of the land. On the other hand the writ petitioners have produced their title deeds in rela- tion to the said land.18. We are of the view that the appellant is not justified in contend- ing that the writ petitioners are not the title holders of the land. Hav- ing regard to the facts and circumstances of the case, we are also of the view that the direction of the High Court for determination of com- pensation of the disputed land is just and proper.
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13. Having heard Shri Ranjit Kumar, learned senior counsel for the appellant and Dr. A.M. Singhvi, learned senior counsel appearing for the writ petitioners, we are of the view that the High Court was justified in quashing the notification having regard to the judgment of this Court in Daya Ram Tyagi (supra).It is necessary to notice that it has now been almost 28 years since the subject land had been notified for acquisition. The appellant has put up construction over the land without acquisition of the said land putting public exchequer at risk. It is no doubt true that the writ petition was dismissed for default. However, it has been restored sub- sequently and the restoration order has not been challenged. The ap- pellant has not produced any document to substantiate its contention that the writ petitioners are not the title holders of the land. On the other hand the writ petitioners have produced their title deeds in rela- tion to the said land.18. We are of the view that the appellant is not justified in contend- ing that the writ petitioners are not the title holders of the land. Hav- ing regard to the facts and circumstances of the case, we are also of the view that the direction of the High Court for determination of com- pensation of the disputed land is just and proper.
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Govt. Of Nct Of Delhi Vs. Manav Dharam Trust | operation of a subsequent legislation, the acquisition proceedings have lapsed.24. In all the decisions cited by the learned Senior Counsel for the appellants, which we have referred to above, this Court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.25. The 2013 Act has made a sea change in the approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11A where what would lapse is the ... "entire proceedings for the acquisition of land" whereas under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under the 1894 Act which has culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 01.01.2014. In other words, the land acquisition proceedings contemplated under Section 24(2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 01.01.2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F. Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others, 2016(4) R.C.R.(Civil) 407 : 2016(5) Recent Apex Judgments (R.A.J.) 369 : (2016) 8 SCALE 655. To quote:"... As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs ... In fact, Section 24(2) uses the expression "deemed to have lapsed" because the Legislature was cognisant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State/vesting has taken place, after which land acquisition proceedings could be said to have been ended. ..." (Paragraph-27).Thus, on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist.26. As we have already noted above, the whole face of land acquisition has changed by the 2013 Act. Section 105 of the 2013 Act has provided that the provisions of the Act shall not apply to the enactments specified in the Fourth Schedule. So far, only 13 Acts have been notified under the Fourth Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands (Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.27. The main purpose of the 2013 Act is clearly stated in the preamble which reads as follows :-"An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto."There is a clear indication that the Act proposes to protect the interest of those persons, among others who are affected by the acquisition. The subsequent purchasers/successors, etc., in the cases before us, are all people affected by the acquisition, and therefore, also they are entitled to seek a declaration on lapse under the 2013 Act.28. The High Court of Karnataka at Bengaluru in Suryaprakash and others v. State of Karnataka and others, Writ Petition No. 10286-291 of 2014, decided on 05.12.2016 has considered a situation of lapse and locus standi of the subsequent purchaser to file a writ petition for a declaration on lapse, though not under Section 24(2) of the 2013 Act. At paragraph-16, it has been held:"16. ... the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of the acquisition, right accrues to the original owner to deal with his property including by way of the sale and the purchaser will acquire right to protect his interest. Hence, the judgment in the case of Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC 427 , will have no application to the facts of the present case."We are of the view that this decision, in principle, applies to the facts of these appeals as well.29. Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi. | 0[ds]4. At the outset, we may note that in these cases, the land acquisition proceedings have otherwise lapsed by the operation of Section 24(2) of the 2013 Act since either compensation was not paid or possession was not taken within five years prior to 01.01.2014, the date of coming into force of the 2013 Act. Thus, the dispute is only on the locus standi.It is also to be specifically noted that the challenge made by the writ petitioners in the Miscellaneous Application filed by them is not to the acquisition or to the regularity of the process of acquisition including the taking of possession. Their only prayer is for a declaration that the proceedings qua the land referred to in the Application have lapsed by virtue of the operation of Section 24(2) of the 2013 Act.22. All the decisions cited by the learned Senior Counsel appearing for the appellants, no doubt, have categorically held that the subsequent purchasers do not have locus standi to challenge the acquisition proceedings. But in the present case, the challenge is not to the acquisition proceeding; it is only for a declaration that the acquisition proceedings have lapsed in view of the operation of Section 24(2) of the 2013 Act, and therefore, the ratio in those cases has no application to these cases.23. It is one thing to say that there is a challenge to the legality or propriety or validity of the acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed.24. In all the decisions cited by the learned Senior Counsel for the appellants, which we have referred to above, this Court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.As we have already noted above, the whole face of land acquisition has changed by the 2013 Act. Section 105 of the 2013 Act has provided that the provisions of the Act shall not apply to the enactments specified in the Fourth Schedule. So far, only 13 Acts have been notified under the Fourth Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands (Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.We make it clear that we have not gone into the inter se disputes between the parties in some cases or other claims regarding the ownership. | 0 | 4,666 | 568 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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operation of a subsequent legislation, the acquisition proceedings have lapsed.24. In all the decisions cited by the learned Senior Counsel for the appellants, which we have referred to above, this Court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.25. The 2013 Act has made a sea change in the approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11A where what would lapse is the ... "entire proceedings for the acquisition of land" whereas under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under the 1894 Act which has culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 01.01.2014. In other words, the land acquisition proceedings contemplated under Section 24(2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 01.01.2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F. Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others, 2016(4) R.C.R.(Civil) 407 : 2016(5) Recent Apex Judgments (R.A.J.) 369 : (2016) 8 SCALE 655. To quote:"... As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs ... In fact, Section 24(2) uses the expression "deemed to have lapsed" because the Legislature was cognisant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State/vesting has taken place, after which land acquisition proceedings could be said to have been ended. ..." (Paragraph-27).Thus, on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist.26. As we have already noted above, the whole face of land acquisition has changed by the 2013 Act. Section 105 of the 2013 Act has provided that the provisions of the Act shall not apply to the enactments specified in the Fourth Schedule. So far, only 13 Acts have been notified under the Fourth Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands (Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.27. The main purpose of the 2013 Act is clearly stated in the preamble which reads as follows :-"An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto."There is a clear indication that the Act proposes to protect the interest of those persons, among others who are affected by the acquisition. The subsequent purchasers/successors, etc., in the cases before us, are all people affected by the acquisition, and therefore, also they are entitled to seek a declaration on lapse under the 2013 Act.28. The High Court of Karnataka at Bengaluru in Suryaprakash and others v. State of Karnataka and others, Writ Petition No. 10286-291 of 2014, decided on 05.12.2016 has considered a situation of lapse and locus standi of the subsequent purchaser to file a writ petition for a declaration on lapse, though not under Section 24(2) of the 2013 Act. At paragraph-16, it has been held:"16. ... the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of the acquisition, right accrues to the original owner to deal with his property including by way of the sale and the purchaser will acquire right to protect his interest. Hence, the judgment in the case of Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC 427 , will have no application to the facts of the present case."We are of the view that this decision, in principle, applies to the facts of these appeals as well.29. Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.
### Response:
0
### Explanation:
4. At the outset, we may note that in these cases, the land acquisition proceedings have otherwise lapsed by the operation of Section 24(2) of the 2013 Act since either compensation was not paid or possession was not taken within five years prior to 01.01.2014, the date of coming into force of the 2013 Act. Thus, the dispute is only on the locus standi.It is also to be specifically noted that the challenge made by the writ petitioners in the Miscellaneous Application filed by them is not to the acquisition or to the regularity of the process of acquisition including the taking of possession. Their only prayer is for a declaration that the proceedings qua the land referred to in the Application have lapsed by virtue of the operation of Section 24(2) of the 2013 Act.22. All the decisions cited by the learned Senior Counsel appearing for the appellants, no doubt, have categorically held that the subsequent purchasers do not have locus standi to challenge the acquisition proceedings. But in the present case, the challenge is not to the acquisition proceeding; it is only for a declaration that the acquisition proceedings have lapsed in view of the operation of Section 24(2) of the 2013 Act, and therefore, the ratio in those cases has no application to these cases.23. It is one thing to say that there is a challenge to the legality or propriety or validity of the acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed.24. In all the decisions cited by the learned Senior Counsel for the appellants, which we have referred to above, this Court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.As we have already noted above, the whole face of land acquisition has changed by the 2013 Act. Section 105 of the 2013 Act has provided that the provisions of the Act shall not apply to the enactments specified in the Fourth Schedule. So far, only 13 Acts have been notified under the Fourth Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands (Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.We make it clear that we have not gone into the inter se disputes between the parties in some cases or other claims regarding the ownership.
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M/S. Asian Techs Ltd Vs. Union Of India | alterations or additions (other than those authorised to be executed by day work or for an agreed sum) have been covered up by the Contractor without his having given notice of his intention to do so, the Engineer-in-Charge shall be entitled to appraise the value thereof and in the event of any dispute the decision of the G.E. Thereon shall be final and binding." 12. In the present case it is apparent that the delay in the execution of the contract was solely due to the default of the respondents. In this connection we may refer to the following facts. (1) The Assistant Garrison Engineer sent letter dated 21.06.1988 admitting suspension of works of beams and of main roof slab building, due to non-finalization of design. (2) The user of the building i.e. NPOL directed stoppage of many items of work pending their final decisions on them by letter dated 17.09.1988. (3) On 26.9.1987 the appellant notified the respondents about the idling due to non-finalization of various structural particulars, and demanded compensation. The appellant again sent notice dated 9.2.1988 intimating the respondent about idling at the site and losses due to non-finalization of designs and particulars. The Assistant Garrison Engineer sent a letter on 21.6.1988 admitting suspension of works of beams and of main roof slab building due to non-finalization of design. (4) On 17.9.1988 the user of the building i.e. NPOL directed stoppage of many items of works pending their final decision on them. Also, by letter dated 26.9.1988 respondent No. 3 directed stoppage of construction of many items of work pending their final decision on structural particulars. (5) On 10.11.1988 respondent No. 3 intimated unconditional grant of extension of time from 8.9.1988 to 31.1.1989 by respondent No. 2. (6) The appellant by letter dated 24.11.1988 requested respondent Nos. 2 & 3 to settle accounts of the value of the works already carried out, to make payment in terms of the agreement and to close the agreement due to continued suspension of works and increased cost of construction due to efflux of time so as t arrange the remaining works through separate work orders. (7) The Assistant Garrison Engineer of respondent No. 3 sent a letter dated 11.10.1989 assuring the petitioner to settle rates across the table and directed to carry out such items, agreeing to take up objections as to rates, for settlement by the appropriate authority. (8) Respondent No. 3 on 23.11.1990 wrote to the appellant directing it to forward paid vouchers for items to take up the objections as to rates before the respondent No. 2, who was the Accepting Officer. (9) The last bill amount of Rs. 7,87,143/- was paid by respondent No. 3 which was received by the appellant under protest. (10) The appellant issued demand notice for payment of Rs. 1,24,58,108/- being the unpaid amount allegedly due and payable to it. All the above facts show the repeated defaults by the respondents due to which the contract could not be completed in time. 13. The letter dated 24.11.1988 makes it clear that the appellant was not ready to carry out the work beyond the contracted period otherwise than on separate work orders, and the subsequent correspondence like the letter dated 11.10.1989 makes it clear that it was on the specific assurance given by the respondent to the appellant to continue the work and that the rates would be decided across the table that the appellant went ahead with the work. Hence, in our opinion it is now not open to the respondent to contend that no claim for further amount can be made due to clause 11(C) and that the arbitrator would have no jurisdiction to award the same. 14. Clause 62(G) read with clause 7 make it clear that the finality provided under clause 62(G) applies only to cases of deviation and not in a case when there is a material alteration and addition in the work done, as is clear from the correspondence between the parties in the present case. 15. Moreover, Regulation 439 of the MES Regulations 1968 fixes the pecuniary jurisdiction of the CWE at Rs. 20,000/- only. It is evident that the CWE has no jurisdiction to decide the dispute where the valuation is above Rs. 20,000/-, as in the present case. The finality of the decision of the CWE applies only where the dispute is not exceeding Rs. 20,000/-. Hence, in our opinion, the arbitrator was within his jurisdiction to decide the matter in question. 16. It is well-settled that in the case of non-speaking awards under the Arbitration Act, 1940 the Court has very little scope of interference vide State of Rajasthan vs. Nav Bharat Construction Co. (2006) 1 SCC 86 , Raipur Development Authority vs. Chokhamal Constructions (1989) 2 SCC 721 , Arosan Enterprises Ltd. vs. Union of India (1999) 9 SCC 449 , Ispat Engineering vs. Steel Authority of India (2001) 6 SCC 347 , D.D. Sharma vs. Union of India (2004) 5 SCC 325 . 17. It has been held by this Court in National Insurance Company Ltd. vs. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 that even in the case of issuance of full and final discharge/settlement voucher/no-dues certificate the arbitrator or Court can go into the question whether the liability has been satisfied or not. This decision has followed the view taken in Chairman and Managing Director, NTPD Ltd. vs. Reshmi Constructions, Builders and Contractors (2004) 2 SCC 663 (vide paragraphs 27 and 28). 18. Apart from the above, it has been held by this Court in Board of Trustees, Port of Calcutta vs. Engineers-De-Space-Age (1996) 1 SCC 516 , that a clause like clause 11 only prohibits the department from entertaining the claim, but it did not prohibit the arbitrator from entertaining it. This view has been followed by another Bench of this Court in Bharat Drilling & treatment Pvt. Ltd. vs. State of Jharkhand & others in Civil Appeal No. 10216 of 2003 decided on 20th August, 2009. | 1[ds]13. The letter dated 24.11.1988 makes it clear that the appellant was not ready to carry out the work beyond the contracted period otherwise than on separate work orders, and the subsequent correspondence like the letter dated 11.10.1989 makes it clear that it was on the specific assurance given by the respondent to the appellant to continue the work and that the rates would be decided across the table that the appellant went ahead with the work. Hence, in our opinion it is now not open to the respondent to contend that no claim for further amount can be made due to clause 11(C) and that the arbitrator would have no jurisdiction to award the same14. Clause 62(G) read with clause 7 make it clear that the finality provided under clause 62(G) applies only to cases of deviation and not in a case when there is a material alteration and addition in the work done, as is clear from the correspondence between the parties in the present case15. Moreover, Regulation 439 of the MES Regulations 1968 fixes the pecuniary jurisdiction of the CWE at Rs. 20,000/only. It is evident that the CWE has no jurisdiction to decide the dispute where the valuation is above Rs., as in the present case. The finality of the decision of the CWE applies only where the dispute is not exceeding Rs.. Hence, in our opinion, the arbitrator was within his jurisdiction to decide the matter in question16. It isd that in the case ofg awards under the Arbitration Act, 1940 the Court has very little scope of interference vide State of Rajasthan vs. Nav Bharat Construction Co. (2006) 1 SCC 86 , Raipur Development Authority vs. Chokhamal Constructions (1989) 2 SCC 721 , Arosan Enterprises Ltd. vs. Union of India (1999) 9 SCC 449 , Ispat Engineering vs. Steel Authority of India (2001) 6 SCC 347 , D.D. Sharma vs. Union of India (2004) 5 SCC 325 17. It has been held by this Court in National Insurance Company Ltd. vs. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 that even in the case of issuance of full and final discharge/settlements certificate the arbitrator or Court can go into the question whether the liability has been satisfied or not. This decision has followed the view taken in Chairman and Managing Director, NTPD Ltd. vs. Reshmi Constructions, Builders and Contractors (2004) 2 SCC 663 (vide paragraphs 27 and 28)18. Apart from the above, it has been held by this Court in Board of Trustees, Port of Calcutta vs.e (1996) 1 SCC 516 , that a clause like clause 11 only prohibits the department from entertaining the claim, but it did not prohibit the arbitrator from entertaining it. This view has been followed by another Bench of this Court in Bharat Drilling & treatment Pvt. Ltd. vs. State of Jharkhand & others in Civil Appeal No. 10216 of 2003 decided on 20th August, 2009. | 1 | 3,139 | 552 | ### 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:
alterations or additions (other than those authorised to be executed by day work or for an agreed sum) have been covered up by the Contractor without his having given notice of his intention to do so, the Engineer-in-Charge shall be entitled to appraise the value thereof and in the event of any dispute the decision of the G.E. Thereon shall be final and binding." 12. In the present case it is apparent that the delay in the execution of the contract was solely due to the default of the respondents. In this connection we may refer to the following facts. (1) The Assistant Garrison Engineer sent letter dated 21.06.1988 admitting suspension of works of beams and of main roof slab building, due to non-finalization of design. (2) The user of the building i.e. NPOL directed stoppage of many items of work pending their final decisions on them by letter dated 17.09.1988. (3) On 26.9.1987 the appellant notified the respondents about the idling due to non-finalization of various structural particulars, and demanded compensation. The appellant again sent notice dated 9.2.1988 intimating the respondent about idling at the site and losses due to non-finalization of designs and particulars. The Assistant Garrison Engineer sent a letter on 21.6.1988 admitting suspension of works of beams and of main roof slab building due to non-finalization of design. (4) On 17.9.1988 the user of the building i.e. NPOL directed stoppage of many items of works pending their final decision on them. Also, by letter dated 26.9.1988 respondent No. 3 directed stoppage of construction of many items of work pending their final decision on structural particulars. (5) On 10.11.1988 respondent No. 3 intimated unconditional grant of extension of time from 8.9.1988 to 31.1.1989 by respondent No. 2. (6) The appellant by letter dated 24.11.1988 requested respondent Nos. 2 & 3 to settle accounts of the value of the works already carried out, to make payment in terms of the agreement and to close the agreement due to continued suspension of works and increased cost of construction due to efflux of time so as t arrange the remaining works through separate work orders. (7) The Assistant Garrison Engineer of respondent No. 3 sent a letter dated 11.10.1989 assuring the petitioner to settle rates across the table and directed to carry out such items, agreeing to take up objections as to rates, for settlement by the appropriate authority. (8) Respondent No. 3 on 23.11.1990 wrote to the appellant directing it to forward paid vouchers for items to take up the objections as to rates before the respondent No. 2, who was the Accepting Officer. (9) The last bill amount of Rs. 7,87,143/- was paid by respondent No. 3 which was received by the appellant under protest. (10) The appellant issued demand notice for payment of Rs. 1,24,58,108/- being the unpaid amount allegedly due and payable to it. All the above facts show the repeated defaults by the respondents due to which the contract could not be completed in time. 13. The letter dated 24.11.1988 makes it clear that the appellant was not ready to carry out the work beyond the contracted period otherwise than on separate work orders, and the subsequent correspondence like the letter dated 11.10.1989 makes it clear that it was on the specific assurance given by the respondent to the appellant to continue the work and that the rates would be decided across the table that the appellant went ahead with the work. Hence, in our opinion it is now not open to the respondent to contend that no claim for further amount can be made due to clause 11(C) and that the arbitrator would have no jurisdiction to award the same. 14. Clause 62(G) read with clause 7 make it clear that the finality provided under clause 62(G) applies only to cases of deviation and not in a case when there is a material alteration and addition in the work done, as is clear from the correspondence between the parties in the present case. 15. Moreover, Regulation 439 of the MES Regulations 1968 fixes the pecuniary jurisdiction of the CWE at Rs. 20,000/- only. It is evident that the CWE has no jurisdiction to decide the dispute where the valuation is above Rs. 20,000/-, as in the present case. The finality of the decision of the CWE applies only where the dispute is not exceeding Rs. 20,000/-. Hence, in our opinion, the arbitrator was within his jurisdiction to decide the matter in question. 16. It is well-settled that in the case of non-speaking awards under the Arbitration Act, 1940 the Court has very little scope of interference vide State of Rajasthan vs. Nav Bharat Construction Co. (2006) 1 SCC 86 , Raipur Development Authority vs. Chokhamal Constructions (1989) 2 SCC 721 , Arosan Enterprises Ltd. vs. Union of India (1999) 9 SCC 449 , Ispat Engineering vs. Steel Authority of India (2001) 6 SCC 347 , D.D. Sharma vs. Union of India (2004) 5 SCC 325 . 17. It has been held by this Court in National Insurance Company Ltd. vs. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 that even in the case of issuance of full and final discharge/settlement voucher/no-dues certificate the arbitrator or Court can go into the question whether the liability has been satisfied or not. This decision has followed the view taken in Chairman and Managing Director, NTPD Ltd. vs. Reshmi Constructions, Builders and Contractors (2004) 2 SCC 663 (vide paragraphs 27 and 28). 18. Apart from the above, it has been held by this Court in Board of Trustees, Port of Calcutta vs. Engineers-De-Space-Age (1996) 1 SCC 516 , that a clause like clause 11 only prohibits the department from entertaining the claim, but it did not prohibit the arbitrator from entertaining it. This view has been followed by another Bench of this Court in Bharat Drilling & treatment Pvt. Ltd. vs. State of Jharkhand & others in Civil Appeal No. 10216 of 2003 decided on 20th August, 2009.
### Response:
1
### Explanation:
13. The letter dated 24.11.1988 makes it clear that the appellant was not ready to carry out the work beyond the contracted period otherwise than on separate work orders, and the subsequent correspondence like the letter dated 11.10.1989 makes it clear that it was on the specific assurance given by the respondent to the appellant to continue the work and that the rates would be decided across the table that the appellant went ahead with the work. Hence, in our opinion it is now not open to the respondent to contend that no claim for further amount can be made due to clause 11(C) and that the arbitrator would have no jurisdiction to award the same14. Clause 62(G) read with clause 7 make it clear that the finality provided under clause 62(G) applies only to cases of deviation and not in a case when there is a material alteration and addition in the work done, as is clear from the correspondence between the parties in the present case15. Moreover, Regulation 439 of the MES Regulations 1968 fixes the pecuniary jurisdiction of the CWE at Rs. 20,000/only. It is evident that the CWE has no jurisdiction to decide the dispute where the valuation is above Rs., as in the present case. The finality of the decision of the CWE applies only where the dispute is not exceeding Rs.. Hence, in our opinion, the arbitrator was within his jurisdiction to decide the matter in question16. It isd that in the case ofg awards under the Arbitration Act, 1940 the Court has very little scope of interference vide State of Rajasthan vs. Nav Bharat Construction Co. (2006) 1 SCC 86 , Raipur Development Authority vs. Chokhamal Constructions (1989) 2 SCC 721 , Arosan Enterprises Ltd. vs. Union of India (1999) 9 SCC 449 , Ispat Engineering vs. Steel Authority of India (2001) 6 SCC 347 , D.D. Sharma vs. Union of India (2004) 5 SCC 325 17. It has been held by this Court in National Insurance Company Ltd. vs. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 that even in the case of issuance of full and final discharge/settlements certificate the arbitrator or Court can go into the question whether the liability has been satisfied or not. This decision has followed the view taken in Chairman and Managing Director, NTPD Ltd. vs. Reshmi Constructions, Builders and Contractors (2004) 2 SCC 663 (vide paragraphs 27 and 28)18. Apart from the above, it has been held by this Court in Board of Trustees, Port of Calcutta vs.e (1996) 1 SCC 516 , that a clause like clause 11 only prohibits the department from entertaining the claim, but it did not prohibit the arbitrator from entertaining it. This view has been followed by another Bench of this Court in Bharat Drilling & treatment Pvt. Ltd. vs. State of Jharkhand & others in Civil Appeal No. 10216 of 2003 decided on 20th August, 2009.
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National Institute of Industrial Engineering Vs. Nitie Employees' Union & Others | approval of the Central Government. iv. The annual statement of accounts and balance sheet are required to be in such form as prescribed by the Central Government. v. The Central Government is empowered to take over the administration and assets of the Petitioner if it is satisfied that the Petitioner is not functioning properly. vi. Upon winding up or dissolution of the Petitioner, the property of the Petitioner is to be dealt with in such a manner as may be determined by the Central Government. vii. The Central Government sanctions and sets the limits of the expenditure after the annual budget estimates are prepared by the Board of the Petitioner viii. The Central Government prescribes the rules and regulations for the admission of the students to the various courses of study in the Petitioner Institute. ix. The posts created are required to be in the cadre and scales of pay as approved by the Central Government. The adoption of pay scales, allowances and revision thereof and creation of posts, if the pay scale exceeds Rs. 4,500/- requires the prior approval of the Central Government. It is not disputed that the pay scales of the Petitioners employees are at par with the employees of the Central Government. x. Prior approval of the Central Government is necessary to amend or vary the Bye-laws/Rules for regulating the management and administration of affairs of the Petitioner. xi. Additional functions and duties as may be directed by the Central Government are required to be carried out by the Board of the Petitioner. xii. In case of any disagreement between the representative of the Ministry of Finance and the Chairman of the Board (who is also appointed by the Central Government) on any financial matter beyond the delegated powers of the Ministry, the matter is required to be referred to the Ministry for taking a final decision. xiii. A copy of the proceedings of every meeting of the Board is required to be furnished to the Central Government. xiv. The members of the Petitioner or Board or any Committee appointed by the Petitioner or the Board are not entitled to any remuneration from the Petitioner or the Board and are only entitled to travelling and daily allowance for the meetings undertaken by them which is borne by the Central Government. Only non-official members of the Petitioner, the Board or the Committee appointed by the Board are to be paid by the Petitioner for travelling and daily allowances for the meetings. xv. The accounts of the Petitioner are audited annually by the Comptroller and Auditor General of India or any person authorized by him and a copy of the Audit Report is also required to be furnished by the Auditor to the Government of India in the Ministry of Education. xvi. The Board is required to submit an annual Report on the working of the Petitioner including audit Report and audited statement of accounts and submit the budget estimates for every financial year by such date as fixed by the Central Government. 10. In view of what is stated above, we find that the affairs of the Petitioner are completely controlled by the Central Government. The nature and degree of control the Central Government exercises on the Petitioner leaves no manner of doubt that it is being carried on under the authority of the Central Government. The Petitioner Institute is being run as a delegate of the Central Government. If the Central Government does not appoint/nominate the members of the Board of Governors, which is the governing body in charge of administration and management of the Petitioner, we are unable to really see how the Petitioner would function. It also needs to be borne in mind that the Director and the Registrar of the Petitioner Institute are ex-officio members. In the impugned order of the Industrial Court, however, there is hardly any discussion on Memorandum of Association and the Rules of the Petitioner. In our view, the Industrial Court clearly erred in coming to the conclusion that the appropriate Government in relation to the Petitioner was the State Government. Analysis of the judgments relied upon by the learned Counsel is not really necessitated, in view of the decision of the 5-Judge Constitution Bench of the Supreme Court in SAILs case which interalia holds that the question whether the undertaking is being carried on under the authority of the Central Government is to be ascertained on the facts and circumstances of each case. It may however be stated that in Tata Memorial Hospital Workers Union 1997 (7) SCC 59 (supra), which is the only judgment relied upon subsequent to SAILs case, it was observed in paragraph 79 as follows: 79. It is material to note that until the present litigation, neither the Central Government nor Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU Act to the first respondent establishment. Prior to the applications leading to the present appeal, Respondent 1 has also filed complaints under the MRTU Act. Neither the appellant nor the second respondent rival Union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant Union has been recognised under the Act right from 1985. 11. Though not relevant for the purposes of the present Petition, it is required to be noted that with effect from 15 September 2010 autonomous bodies owned and controlled by the Central Government are also included in the definition of section 2(a)(i) and for which the appropriate Government is a Central Government in relation to an industrial dispute. 12. In view of the aforesaid discussion, we hold that it is the Central Government which is the appropriate Government in relation to an industrial dispute concerning the Petitioner. Consequently, the provisions of the MRTU & PULP Act would not apply and the Application of the Respondent No.1-Union would not be maintainable. | 1[ds]10. In view of what is stated above, we find that the affairs of the Petitioner are completely controlled by the Central Government. The nature and degree of control the Central Government exercises on the Petitioner leaves no manner of doubt that it is being carried on under the authority of the Central Government. The Petitioner Institute is being run as a delegate of the Central Government. If the Central Government does not appoint/nominate the members of the Board of Governors, which is the governing body in charge of administration and management of the Petitioner, we are unable to really see how the Petitioner would function. It also needs to be borne in mind that the Director and the Registrar of the Petitioner Institute are ex-officio members. In the impugned order of the Industrial Court, however, there is hardly any discussion on Memorandum of Association and the Rules of the Petitioner. In our view, the Industrial Court clearly erred in coming to the conclusion that the appropriate Government in relation to the Petitioner was the State Government. Analysis of the judgments relied upon by the learned Counsel is not really necessitated, in view of the decision of the 5-Judge Constitution Bench of the Supreme Court in SAILs case which interalia holds that the question whether the undertaking is being carried on under the authority of the Central Government is to be ascertained on the facts and circumstances of each case. It may however be stated that in Tata Memorial Hospital Workers Union 1997 (7) SCC 59 (supra), which is the only judgment relied upon subsequent to SAILs case, it was observed in paragraph 79 as follows:79. It is material to note that until the present litigation, neither the Central Government nor Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU Act to the first respondent establishment. Prior to the applications leading to the present appeal, Respondent 1 has also filed complaints under the MRTU Act. Neither the appellant nor the second respondent rival Union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant Union has been recognised under the Act right from 198511. Though not relevant for the purposes of the present Petition, it is required to be noted that with effect from 15 September 2010 autonomous bodies owned and controlled by the Central Government are also included in the definition of section 2(a)(i) and for which the appropriate Government is a Central Government in relation to an industrial dispute12. In view of the aforesaid discussion, we hold that it is the Central Government which is the appropriate Government in relation to an industrial dispute concerning the Petitioner. Consequently, the provisions of the MRTU & PULP Act would not apply and the Application of the Respondent No.1-Union would not be maintainable. | 1 | 6,929 | 540 | ### 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:
approval of the Central Government. iv. The annual statement of accounts and balance sheet are required to be in such form as prescribed by the Central Government. v. The Central Government is empowered to take over the administration and assets of the Petitioner if it is satisfied that the Petitioner is not functioning properly. vi. Upon winding up or dissolution of the Petitioner, the property of the Petitioner is to be dealt with in such a manner as may be determined by the Central Government. vii. The Central Government sanctions and sets the limits of the expenditure after the annual budget estimates are prepared by the Board of the Petitioner viii. The Central Government prescribes the rules and regulations for the admission of the students to the various courses of study in the Petitioner Institute. ix. The posts created are required to be in the cadre and scales of pay as approved by the Central Government. The adoption of pay scales, allowances and revision thereof and creation of posts, if the pay scale exceeds Rs. 4,500/- requires the prior approval of the Central Government. It is not disputed that the pay scales of the Petitioners employees are at par with the employees of the Central Government. x. Prior approval of the Central Government is necessary to amend or vary the Bye-laws/Rules for regulating the management and administration of affairs of the Petitioner. xi. Additional functions and duties as may be directed by the Central Government are required to be carried out by the Board of the Petitioner. xii. In case of any disagreement between the representative of the Ministry of Finance and the Chairman of the Board (who is also appointed by the Central Government) on any financial matter beyond the delegated powers of the Ministry, the matter is required to be referred to the Ministry for taking a final decision. xiii. A copy of the proceedings of every meeting of the Board is required to be furnished to the Central Government. xiv. The members of the Petitioner or Board or any Committee appointed by the Petitioner or the Board are not entitled to any remuneration from the Petitioner or the Board and are only entitled to travelling and daily allowance for the meetings undertaken by them which is borne by the Central Government. Only non-official members of the Petitioner, the Board or the Committee appointed by the Board are to be paid by the Petitioner for travelling and daily allowances for the meetings. xv. The accounts of the Petitioner are audited annually by the Comptroller and Auditor General of India or any person authorized by him and a copy of the Audit Report is also required to be furnished by the Auditor to the Government of India in the Ministry of Education. xvi. The Board is required to submit an annual Report on the working of the Petitioner including audit Report and audited statement of accounts and submit the budget estimates for every financial year by such date as fixed by the Central Government. 10. In view of what is stated above, we find that the affairs of the Petitioner are completely controlled by the Central Government. The nature and degree of control the Central Government exercises on the Petitioner leaves no manner of doubt that it is being carried on under the authority of the Central Government. The Petitioner Institute is being run as a delegate of the Central Government. If the Central Government does not appoint/nominate the members of the Board of Governors, which is the governing body in charge of administration and management of the Petitioner, we are unable to really see how the Petitioner would function. It also needs to be borne in mind that the Director and the Registrar of the Petitioner Institute are ex-officio members. In the impugned order of the Industrial Court, however, there is hardly any discussion on Memorandum of Association and the Rules of the Petitioner. In our view, the Industrial Court clearly erred in coming to the conclusion that the appropriate Government in relation to the Petitioner was the State Government. Analysis of the judgments relied upon by the learned Counsel is not really necessitated, in view of the decision of the 5-Judge Constitution Bench of the Supreme Court in SAILs case which interalia holds that the question whether the undertaking is being carried on under the authority of the Central Government is to be ascertained on the facts and circumstances of each case. It may however be stated that in Tata Memorial Hospital Workers Union 1997 (7) SCC 59 (supra), which is the only judgment relied upon subsequent to SAILs case, it was observed in paragraph 79 as follows: 79. It is material to note that until the present litigation, neither the Central Government nor Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU Act to the first respondent establishment. Prior to the applications leading to the present appeal, Respondent 1 has also filed complaints under the MRTU Act. Neither the appellant nor the second respondent rival Union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant Union has been recognised under the Act right from 1985. 11. Though not relevant for the purposes of the present Petition, it is required to be noted that with effect from 15 September 2010 autonomous bodies owned and controlled by the Central Government are also included in the definition of section 2(a)(i) and for which the appropriate Government is a Central Government in relation to an industrial dispute. 12. In view of the aforesaid discussion, we hold that it is the Central Government which is the appropriate Government in relation to an industrial dispute concerning the Petitioner. Consequently, the provisions of the MRTU & PULP Act would not apply and the Application of the Respondent No.1-Union would not be maintainable.
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10. In view of what is stated above, we find that the affairs of the Petitioner are completely controlled by the Central Government. The nature and degree of control the Central Government exercises on the Petitioner leaves no manner of doubt that it is being carried on under the authority of the Central Government. The Petitioner Institute is being run as a delegate of the Central Government. If the Central Government does not appoint/nominate the members of the Board of Governors, which is the governing body in charge of administration and management of the Petitioner, we are unable to really see how the Petitioner would function. It also needs to be borne in mind that the Director and the Registrar of the Petitioner Institute are ex-officio members. In the impugned order of the Industrial Court, however, there is hardly any discussion on Memorandum of Association and the Rules of the Petitioner. In our view, the Industrial Court clearly erred in coming to the conclusion that the appropriate Government in relation to the Petitioner was the State Government. Analysis of the judgments relied upon by the learned Counsel is not really necessitated, in view of the decision of the 5-Judge Constitution Bench of the Supreme Court in SAILs case which interalia holds that the question whether the undertaking is being carried on under the authority of the Central Government is to be ascertained on the facts and circumstances of each case. It may however be stated that in Tata Memorial Hospital Workers Union 1997 (7) SCC 59 (supra), which is the only judgment relied upon subsequent to SAILs case, it was observed in paragraph 79 as follows:79. It is material to note that until the present litigation, neither the Central Government nor Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU Act to the first respondent establishment. Prior to the applications leading to the present appeal, Respondent 1 has also filed complaints under the MRTU Act. Neither the appellant nor the second respondent rival Union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant Union has been recognised under the Act right from 198511. Though not relevant for the purposes of the present Petition, it is required to be noted that with effect from 15 September 2010 autonomous bodies owned and controlled by the Central Government are also included in the definition of section 2(a)(i) and for which the appropriate Government is a Central Government in relation to an industrial dispute12. In view of the aforesaid discussion, we hold that it is the Central Government which is the appropriate Government in relation to an industrial dispute concerning the Petitioner. Consequently, the provisions of the MRTU & PULP Act would not apply and the Application of the Respondent No.1-Union would not be maintainable.
|
Ram Parshottam Mittal Vs. M/S Hillcrest Realty Sdn.Bhd.& Ors.Etc | the language of the two following resolutions, and at first glance appears to militate against each other, on a closer look at the three resolutions taken one after the other, it is not difficult to discern that they were all part of the same thinking process or meeting of minds of the shareholders. Without the first resolution being accepted as a final decision taken by the company to convert itself from a private company into a public company, there could be no occasion for the subsequent two resolutions to have been passed.34. We are unable to appreciate the methodology adopted by the Division Bench of the High Court, but we are in agreement with the end result by which the Division Bench had set aside the interim order dated 12th August, 2005, passed in Suit No.992 of 2005. In our view, apart from endorsing the view of the learned Single Judge that the interim order of 12th August, 2005, had been obtained by suppression of material facts, in order to decide the appeals, the Division Bench had to arrive at a prima facie finding as to whether by virtue of the resolutions adopted on 30th September, 2002, Hotel Queen Road had shed its private character and had been converted into a public company with all its consequences.35. From the materials on record, we are prima facie of the view that by the said resolutions, a final decision had been taken by Hotel Queen Road to convert itself into a public company with immediate effect without having to wait for any decision to be rendered by the Registrar of Companies who, in any event, had no authority to make any decision in that regard. The very fact that Form 23 was filed along with the resolutions dated 30th September, 2002, coupled with the fact that a Statement in lieu of Prospectus, which is required to be filed by a private company when it converts itself into a public company, was filed on behalf of Hotel Queen Road, is sufficient for the purpose of arriving at a prima facie conclusion that Hotel Queen Road had altered its status and had become a public company even though the necessary alterations had not been effected in the records of the Registrar of Companies. We are unable to agree with the contention canvassed on behalf of Hotel Queen Road that till such time as the records of the Registrar of Companies were not altered to show that Hotel Queen Road had become a public company, it could not be treated as such. It is not the records of the Registrar of Companies which determines the status of a company but whether it falls within the definition of a "private company" or "public company" as defined in Section 3(1)(iii) and 3(1)(iv) of the Companies Act. On the other hand, the records of the Registrar of Companies reflect the status of the Company as per the information received from the company in accordance with the provisions of the aforesaid Act. Having regard to the definition of "private company" in Section 3(1)(iii), as soon as the number of its members exceeds 50, it loses its character as a private company. Since in the instant case shares were said to have been allotted to 134 persons on 30th September, 2002, on which date the resolutions were passed by Hotel Queen Road Pvt. Ltd., the company lost its private character requiring the subsequent resolutions to be passed regarding alteration of the share capital.36. Whichever way we look at the three resolutions passed one after the other on 30th September, 2002, it appears to have been the intention of the company to convert itself from a private company to a public company and that the same was effected by the three resolutions passed on 30th September, 2002.37. Then again, the offer to pay dividends from a private source and not out of the companys profits, is not contemplated under Section 205 of the Companies Act. The decision referred to by Mr. Sorabjee in the Walters Deed of Guarantee in Walters "Palm" Tofee, Limiteds case (supra) had not been required to take into consideration a provision similar to Section 205 of the Companies Act, 1956. The said decision is, therefore, of no help to the petitioners case, particularly when the language of the Section is clear and unambiguous. The moment the resolutions were passed by the company on 30th September, 2002, the provisions of the Companies Act became applicable and by operation of law, Hotel Queen Road simultaneously ceased to be a private limited company and under the conditions prescribed in the Act, Hillcrest Realty acquired voting rights in the meetings of the company by operation of Section 87(2)(b) and Section 44 of the said Act. The right of a preference shareholder to acquire voting rights is also indicated in clear and unambiguous terms in the Explanation to Section 87(2)(b). 38. Since the question as to whether Hotel Queen Road ceased to be a private company upon the resolutions being passed on 30th September, 2002, is the crucial issue for decision in both the two suits referred to hereinabove, it would not be proper for this Court to delve into the question further. However, for the purpose of disposing of these Special Leave Petitions, we are prima facie of the view that by virtue of the resolutions dated 30th September, 2002, Hotel Queen Road had become a public company thereby attracting the provisions of Section 87(2)(b) of the Companies Act, 1956, upon the bar under Section 90(2) thereof having been lifted. A natural consequence is that in the event dividend had not been declared or paid for a period of two years as far as Hillcrest is concerned, the Explanation to Section 87(2)(b) would come into play thereby giving Hillcrest Realty, as a cumulative preference shareholder, the right to vote on every resolution placed before the Company, at any meeting, in keeping with Clause (i) of Section 87(2)(b) of the aforesaid Act. | 0[ds]31. In deciding the two separate sets of Special Leave Petitions, it has to be kept in mind that they arise out of two separate suits, one filed by Hotel Queen Road and the other filed by Hillcrest Realty. While Suit No.992 of 2005 was filed by Hotel Queen Road Pvt. Ltd. for an injunction to restrain Hillcrest Realty from proceeding with the proposed EGM on 4th August, 2005, and from exercising voting rights therein, Suit No.1832 of 2008 was filed by Hillcrest Realty for a declaration that Hotel Queen Road had become a public company by virtue of the resolutions passed on 30th September, 2002. While in the suit filed by Hillcrest Realty, the learned Single Judge permitted the Plaintiff to vote in the meeting of Hotel Queen Road to be held on 16th October, 2008, in the suit filed by Hotel Queen Road, the learned Single Judge also passed an interim order prohibiting any effect being given to the resolutions passed in the EGM on 4th August, 2005, upon holding that Hotel Queen Road being a private company, Hillcrest Realty could not have exercised voting rights in the EGM.32. As will be evident from the pleadings in both the suits, the reliefs sought for in the two suits are dependent on the question as to whether by the resolutions adopted on 30th September, 2002, Hotel Queen Road had lost its private character and had been converted into a Public Company. While the issues are the same in the two suits, the interim orders passed therein operate in contradictory fields. On the one hand, the learned Single Judge has passed an order on the basis that Hotel Queen Road was a Private Limited Company in which Hillcrest Realty, as a preference shareholder, had no voting rights and, on the other, an interim order has been passed on the basis that the said company was, a Public Company and by operation of Section of 87(2)(b) of the Companies Act, 1956, Hillcrest Realty, as a preference shareholder, was entitled to vote at all the meetings of the company. In an attempt to reconcile the two contradictory positions, the Division Bench of the High Court, without deciding the core issue, proceeded to dispose of the appeals before it by treating Hotel Queen Road to be a Public Company, and based upon such presumption proceeded further to hold that on account ofof dividend on its cumulative preference shares for two years, Hillcrest Realty became entitled to vote at the meeting of the company under the provisions of Section 87(2)(b) of the Companies Act, 1956.33. Although, as pointed out by Mr. Sorabjee, the language of the first resolution was different from the language of the two following resolutions, and at first glance appears to militate against each other, on a closer look at the three resolutions taken one after the other, it is not difficult to discern that they were all part of the same thinking process or meeting of minds of the shareholders. Without the first resolution being accepted as a final decision taken by the company to convert itself from a private company into a public company, there could be no occasion for the subsequent two resolutions to have been passed.34. We are unable to appreciate the methodology adopted by the Division Bench of the High Court, but we are in agreement with the end result by which the Division Bench had set aside the interim order dated 12th August, 2005, passed in Suit No.992 of 2005. In our view, apart from endorsing the view of the learned Single Judge that the interim order of 12th August, 2005, had been obtained by suppression of material facts, in order to decide the appeals, the Division Bench had to arrive at a prima facie finding as to whether by virtue of the resolutions adopted on 30th September, 2002, Hotel Queen Road had shed its private character and had been converted into a public company with all its consequences.35. From the materials on record, we are prima facie of the view that by the said resolutions, a final decision had been taken by Hotel Queen Road to convert itself into a public company with immediate effect without having to wait for any decision to be rendered by the Registrar of Companies who, in any event, had no authority to make any decision in that regard. The very fact that Form 23 was filed along with the resolutions dated 30th September, 2002, coupled with the fact that a Statement in lieu of Prospectus, which is required to be filed by a private company when it converts itself into a public company, was filed on behalf of Hotel Queen Road, is sufficient for the purpose of arriving at a prima facie conclusion that Hotel Queen Road had altered its status and had become a public company even though the necessary alterations had not been effected in the records of the Registrar of Companies. We are unable to agree with the contention canvassed on behalf of Hotel Queen Road that till such time as the records of the Registrar of Companies were not altered to show that Hotel Queen Road had become a public company, it could not be treated as such. It is not the records of the Registrar of Companies which determines the status of a company but whether it falls within the definition of a "private company" or "public company" as defined in Section 3(1)(iii) and 3(1)(iv) of the Companies Act. On the other hand, the records of the Registrar of Companies reflect the status of the Company as per the information received from the company in accordance with the provisions of the aforesaid Act. Having regard to the definition of "private company" in Section 3(1)(iii), as soon as the number of its members exceeds 50, it loses its character as a private company. Since in the instant case shares were said to have been allotted to 134 persons on 30th September, 2002, on which date the resolutions were passed by Hotel Queen Road Pvt. Ltd., the company lost its private character requiring the subsequent resolutions to be passed regarding alteration of the share capital.36. Whichever way we look at the three resolutions passed one after the other on 30th September, 2002, it appears to have been the intention of the company to convert itself from a private company to a public company and that the same was effected by the three resolutions passed on 30th September, 2002.37. Then again, the offer to pay dividends from a private source and not out of the companys profits, is not contemplated under Section 205 of the Companies Act. The decision referred to by Mr. Sorabjee in the Walters Deed of Guarantee in Walters "Palm" Tofee, Limiteds case (supra) had not been required to take into consideration a provision similar to Section 205 of the Companies Act, 1956. The said decision is, therefore, of no help to the petitioners case, particularly when the language of the Section is clear and unambiguous. The moment the resolutions were passed by the company on 30th September, 2002, the provisions of the Companies Act became applicable and by operation of law, Hotel Queen Road simultaneously ceased to be a private limited company and under the conditions prescribed in the Act, Hillcrest Realty acquired voting rights in the meetings of the company by operation of Section 87(2)(b) and Section 44 of the said Act. The right of a preference shareholder to acquire voting rights is also indicated in clear and unambiguous terms in the Explanation to Section 87(2)(b).Since the question as to whether Hotel Queen Road ceased to be a private company upon the resolutions being passed on 30th September, 2002, is the crucial issue for decision in both the two suits referred to hereinabove, it would not be proper for this Court to delve into the question further.However, for the purpose of disposing of these Special Leave Petitions, we are prima facie of the view that by virtue of the resolutions dated 30th September, 2002, Hotel Queen Road had become a public company thereby attracting the provisions of Section 87(2)(b) of the Companies Act, 1956, upon the bar under Section 90(2) thereof having been lifted. A natural consequence is that in the event dividend had not been declared or paid for a period of two years as far as Hillcrest is concerned, the Explanation to Section 87(2)(b) would come into play thereby giving Hillcrest Realty, as a cumulative preference shareholder, the right to vote on every resolution placed before the Company, at any meeting, in keeping with Clause (i) of Section 87(2)(b) of the aforesaid Act. | 0 | 7,525 | 1,645 | ### 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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the language of the two following resolutions, and at first glance appears to militate against each other, on a closer look at the three resolutions taken one after the other, it is not difficult to discern that they were all part of the same thinking process or meeting of minds of the shareholders. Without the first resolution being accepted as a final decision taken by the company to convert itself from a private company into a public company, there could be no occasion for the subsequent two resolutions to have been passed.34. We are unable to appreciate the methodology adopted by the Division Bench of the High Court, but we are in agreement with the end result by which the Division Bench had set aside the interim order dated 12th August, 2005, passed in Suit No.992 of 2005. In our view, apart from endorsing the view of the learned Single Judge that the interim order of 12th August, 2005, had been obtained by suppression of material facts, in order to decide the appeals, the Division Bench had to arrive at a prima facie finding as to whether by virtue of the resolutions adopted on 30th September, 2002, Hotel Queen Road had shed its private character and had been converted into a public company with all its consequences.35. From the materials on record, we are prima facie of the view that by the said resolutions, a final decision had been taken by Hotel Queen Road to convert itself into a public company with immediate effect without having to wait for any decision to be rendered by the Registrar of Companies who, in any event, had no authority to make any decision in that regard. The very fact that Form 23 was filed along with the resolutions dated 30th September, 2002, coupled with the fact that a Statement in lieu of Prospectus, which is required to be filed by a private company when it converts itself into a public company, was filed on behalf of Hotel Queen Road, is sufficient for the purpose of arriving at a prima facie conclusion that Hotel Queen Road had altered its status and had become a public company even though the necessary alterations had not been effected in the records of the Registrar of Companies. We are unable to agree with the contention canvassed on behalf of Hotel Queen Road that till such time as the records of the Registrar of Companies were not altered to show that Hotel Queen Road had become a public company, it could not be treated as such. It is not the records of the Registrar of Companies which determines the status of a company but whether it falls within the definition of a "private company" or "public company" as defined in Section 3(1)(iii) and 3(1)(iv) of the Companies Act. On the other hand, the records of the Registrar of Companies reflect the status of the Company as per the information received from the company in accordance with the provisions of the aforesaid Act. Having regard to the definition of "private company" in Section 3(1)(iii), as soon as the number of its members exceeds 50, it loses its character as a private company. Since in the instant case shares were said to have been allotted to 134 persons on 30th September, 2002, on which date the resolutions were passed by Hotel Queen Road Pvt. Ltd., the company lost its private character requiring the subsequent resolutions to be passed regarding alteration of the share capital.36. Whichever way we look at the three resolutions passed one after the other on 30th September, 2002, it appears to have been the intention of the company to convert itself from a private company to a public company and that the same was effected by the three resolutions passed on 30th September, 2002.37. Then again, the offer to pay dividends from a private source and not out of the companys profits, is not contemplated under Section 205 of the Companies Act. The decision referred to by Mr. Sorabjee in the Walters Deed of Guarantee in Walters "Palm" Tofee, Limiteds case (supra) had not been required to take into consideration a provision similar to Section 205 of the Companies Act, 1956. The said decision is, therefore, of no help to the petitioners case, particularly when the language of the Section is clear and unambiguous. The moment the resolutions were passed by the company on 30th September, 2002, the provisions of the Companies Act became applicable and by operation of law, Hotel Queen Road simultaneously ceased to be a private limited company and under the conditions prescribed in the Act, Hillcrest Realty acquired voting rights in the meetings of the company by operation of Section 87(2)(b) and Section 44 of the said Act. The right of a preference shareholder to acquire voting rights is also indicated in clear and unambiguous terms in the Explanation to Section 87(2)(b). 38. Since the question as to whether Hotel Queen Road ceased to be a private company upon the resolutions being passed on 30th September, 2002, is the crucial issue for decision in both the two suits referred to hereinabove, it would not be proper for this Court to delve into the question further. However, for the purpose of disposing of these Special Leave Petitions, we are prima facie of the view that by virtue of the resolutions dated 30th September, 2002, Hotel Queen Road had become a public company thereby attracting the provisions of Section 87(2)(b) of the Companies Act, 1956, upon the bar under Section 90(2) thereof having been lifted. A natural consequence is that in the event dividend had not been declared or paid for a period of two years as far as Hillcrest is concerned, the Explanation to Section 87(2)(b) would come into play thereby giving Hillcrest Realty, as a cumulative preference shareholder, the right to vote on every resolution placed before the Company, at any meeting, in keeping with Clause (i) of Section 87(2)(b) of the aforesaid Act.
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was different from the language of the two following resolutions, and at first glance appears to militate against each other, on a closer look at the three resolutions taken one after the other, it is not difficult to discern that they were all part of the same thinking process or meeting of minds of the shareholders. Without the first resolution being accepted as a final decision taken by the company to convert itself from a private company into a public company, there could be no occasion for the subsequent two resolutions to have been passed.34. We are unable to appreciate the methodology adopted by the Division Bench of the High Court, but we are in agreement with the end result by which the Division Bench had set aside the interim order dated 12th August, 2005, passed in Suit No.992 of 2005. In our view, apart from endorsing the view of the learned Single Judge that the interim order of 12th August, 2005, had been obtained by suppression of material facts, in order to decide the appeals, the Division Bench had to arrive at a prima facie finding as to whether by virtue of the resolutions adopted on 30th September, 2002, Hotel Queen Road had shed its private character and had been converted into a public company with all its consequences.35. From the materials on record, we are prima facie of the view that by the said resolutions, a final decision had been taken by Hotel Queen Road to convert itself into a public company with immediate effect without having to wait for any decision to be rendered by the Registrar of Companies who, in any event, had no authority to make any decision in that regard. The very fact that Form 23 was filed along with the resolutions dated 30th September, 2002, coupled with the fact that a Statement in lieu of Prospectus, which is required to be filed by a private company when it converts itself into a public company, was filed on behalf of Hotel Queen Road, is sufficient for the purpose of arriving at a prima facie conclusion that Hotel Queen Road had altered its status and had become a public company even though the necessary alterations had not been effected in the records of the Registrar of Companies. We are unable to agree with the contention canvassed on behalf of Hotel Queen Road that till such time as the records of the Registrar of Companies were not altered to show that Hotel Queen Road had become a public company, it could not be treated as such. It is not the records of the Registrar of Companies which determines the status of a company but whether it falls within the definition of a "private company" or "public company" as defined in Section 3(1)(iii) and 3(1)(iv) of the Companies Act. On the other hand, the records of the Registrar of Companies reflect the status of the Company as per the information received from the company in accordance with the provisions of the aforesaid Act. Having regard to the definition of "private company" in Section 3(1)(iii), as soon as the number of its members exceeds 50, it loses its character as a private company. Since in the instant case shares were said to have been allotted to 134 persons on 30th September, 2002, on which date the resolutions were passed by Hotel Queen Road Pvt. Ltd., the company lost its private character requiring the subsequent resolutions to be passed regarding alteration of the share capital.36. Whichever way we look at the three resolutions passed one after the other on 30th September, 2002, it appears to have been the intention of the company to convert itself from a private company to a public company and that the same was effected by the three resolutions passed on 30th September, 2002.37. Then again, the offer to pay dividends from a private source and not out of the companys profits, is not contemplated under Section 205 of the Companies Act. The decision referred to by Mr. Sorabjee in the Walters Deed of Guarantee in Walters "Palm" Tofee, Limiteds case (supra) had not been required to take into consideration a provision similar to Section 205 of the Companies Act, 1956. The said decision is, therefore, of no help to the petitioners case, particularly when the language of the Section is clear and unambiguous. The moment the resolutions were passed by the company on 30th September, 2002, the provisions of the Companies Act became applicable and by operation of law, Hotel Queen Road simultaneously ceased to be a private limited company and under the conditions prescribed in the Act, Hillcrest Realty acquired voting rights in the meetings of the company by operation of Section 87(2)(b) and Section 44 of the said Act. The right of a preference shareholder to acquire voting rights is also indicated in clear and unambiguous terms in the Explanation to Section 87(2)(b).Since the question as to whether Hotel Queen Road ceased to be a private company upon the resolutions being passed on 30th September, 2002, is the crucial issue for decision in both the two suits referred to hereinabove, it would not be proper for this Court to delve into the question further.However, for the purpose of disposing of these Special Leave Petitions, we are prima facie of the view that by virtue of the resolutions dated 30th September, 2002, Hotel Queen Road had become a public company thereby attracting the provisions of Section 87(2)(b) of the Companies Act, 1956, upon the bar under Section 90(2) thereof having been lifted. A natural consequence is that in the event dividend had not been declared or paid for a period of two years as far as Hillcrest is concerned, the Explanation to Section 87(2)(b) would come into play thereby giving Hillcrest Realty, as a cumulative preference shareholder, the right to vote on every resolution placed before the Company, at any meeting, in keeping with Clause (i) of Section 87(2)(b) of the aforesaid Act.
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Krishna Pillai Vs. State of Madras, Representing the Inspector | Bhagwati J.1. The appellant and one Mohamed Ibrahim alias Kottai Thambi were apprehended when crossing into the Indian Union from the French territory of Pondicherry on the rights of the 23rd March, 1952, at 1 A. M. The appellant was found conveying dutiable goods namely 2 blocks of gold weighing 307 7/8 tolas in all by tying them in a special cloth pouch around his waist and concealing them under his clothes and he was aided and abetted in that act by Mohamed Ibrahim.The appellant was charged with having committed an offence of conveying the said dutiable goods from the French Territory of Pondicherry into the Indian Union (Madalapet village by land by a route other than the authorised route prescribed under the Land Customs Act, i.e., offence under S. 7 (1) (b) of the Land Customs Act, and Mohamed Ibrahim was charged with having committed an offence under S. 7(i)(c) of the Land Customs Act.2. They were put on the 24th March, 1952, before the Stationary Sub-Magistrate, Cuddalore, when the appellant pleaded guilty, stating that one person came and gave him the gold through a lane and asked him to bring it into the Indian Union. The learned Magistrate accepted this plea of the appellant and convicted the appellant and sentenced him to rigorous imprisonment for four months. He also ordered the confiscation of the two blocks of gold which were found on the person of the appellant. In view of the admission and the consequent conviction of the appellant the case was withdrawn against Mohamed Ibrahim who denied his guilt.3. The appellant filed a revisional application in the High Court of Judicature at Madras. The High Court was impressed with the argument advanced by the Counsel for the appellant that the circumstances of the case threw suspicion as to the genuine and voluntary nature of the confession made by the appellant. The High Court however in so far as the appellant had been in jail for about 16 days did not think if necessary to order a retrial and accordingly set aside the conviction and sentence. The High Court however while acquitting the accused curiously enough ordered that the order for confiscation of the two blocks of gold should stand and it is this order against which the appellant has obtained from this court special leave to appeal.4. The power of the court to order confiscation of the goods which was sought to be exercised in this case was derived from S. 7 (3) of the Land Customs Act which runs as under:"Such Magistrate shall thereupon inquire into and try the charge brought against the accused person and upon conviction may sentence him to imprisonment which may extend to six months or to fine not exceeding Rs. 1,000 or both and may confiscate the goods in respect of which the offence has been committed."5. It is clear from a perusal of this Section that the only jurisdiction and power which the Court has got under this Section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise. If once the High Court set aside the conviction and sentence passed upon the appellant the High Court has neither the jurisdiction nor the power to confirm the order of confiscation of the two blocks of gold which has been passed by the learned Magistrate. | 1[ds]5. It is clear from a perusal of this Section that the only jurisdiction and power which the Court has got under this Section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise. If once the High Court set aside the conviction and sentence passed upon the appellant the High Court has neither the jurisdiction nor the power to confirm the order of confiscation of the two blocks of gold which has been passed by the learned Magistrate.6. We are of the opinion that the order made by the High Court in regard to the confiscation of the two blocks of gold was manifestly illegal and without jurisdiction. The learned Counsel for the State was unable to support the decision of the High Court on this point. The appeal will therefore be allowed and the order of confiscation of the two blocks of gold set aside. | 1 | 605 | 166 | ### 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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Bhagwati J.1. The appellant and one Mohamed Ibrahim alias Kottai Thambi were apprehended when crossing into the Indian Union from the French territory of Pondicherry on the rights of the 23rd March, 1952, at 1 A. M. The appellant was found conveying dutiable goods namely 2 blocks of gold weighing 307 7/8 tolas in all by tying them in a special cloth pouch around his waist and concealing them under his clothes and he was aided and abetted in that act by Mohamed Ibrahim.The appellant was charged with having committed an offence of conveying the said dutiable goods from the French Territory of Pondicherry into the Indian Union (Madalapet village by land by a route other than the authorised route prescribed under the Land Customs Act, i.e., offence under S. 7 (1) (b) of the Land Customs Act, and Mohamed Ibrahim was charged with having committed an offence under S. 7(i)(c) of the Land Customs Act.2. They were put on the 24th March, 1952, before the Stationary Sub-Magistrate, Cuddalore, when the appellant pleaded guilty, stating that one person came and gave him the gold through a lane and asked him to bring it into the Indian Union. The learned Magistrate accepted this plea of the appellant and convicted the appellant and sentenced him to rigorous imprisonment for four months. He also ordered the confiscation of the two blocks of gold which were found on the person of the appellant. In view of the admission and the consequent conviction of the appellant the case was withdrawn against Mohamed Ibrahim who denied his guilt.3. The appellant filed a revisional application in the High Court of Judicature at Madras. The High Court was impressed with the argument advanced by the Counsel for the appellant that the circumstances of the case threw suspicion as to the genuine and voluntary nature of the confession made by the appellant. The High Court however in so far as the appellant had been in jail for about 16 days did not think if necessary to order a retrial and accordingly set aside the conviction and sentence. The High Court however while acquitting the accused curiously enough ordered that the order for confiscation of the two blocks of gold should stand and it is this order against which the appellant has obtained from this court special leave to appeal.4. The power of the court to order confiscation of the goods which was sought to be exercised in this case was derived from S. 7 (3) of the Land Customs Act which runs as under:"Such Magistrate shall thereupon inquire into and try the charge brought against the accused person and upon conviction may sentence him to imprisonment which may extend to six months or to fine not exceeding Rs. 1,000 or both and may confiscate the goods in respect of which the offence has been committed."5. It is clear from a perusal of this Section that the only jurisdiction and power which the Court has got under this Section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise. If once the High Court set aside the conviction and sentence passed upon the appellant the High Court has neither the jurisdiction nor the power to confirm the order of confiscation of the two blocks of gold which has been passed by the learned Magistrate.
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5. It is clear from a perusal of this Section that the only jurisdiction and power which the Court has got under this Section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise. If once the High Court set aside the conviction and sentence passed upon the appellant the High Court has neither the jurisdiction nor the power to confirm the order of confiscation of the two blocks of gold which has been passed by the learned Magistrate.6. We are of the opinion that the order made by the High Court in regard to the confiscation of the two blocks of gold was manifestly illegal and without jurisdiction. The learned Counsel for the State was unable to support the decision of the High Court on this point. The appeal will therefore be allowed and the order of confiscation of the two blocks of gold set aside.
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Regional Director, E.S.I Corporation. And Another Vs. Francis De Costa And Another | this case, an employee, of a Government contractor was at recreation centre maintained by his employer near an ocean shore along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effects. erected. On perceiving that two men standing on a reef beyond the channel were signalling for help, he undertook, with others, so swim the channel, and was drowned. The Administrative Tribunal found that the employees death arose ``out of and in course of his employment. Six members of the U.S. Supreme Court concurred with the opinion of Frankfurter, J. that the administrative decision was supported by ``substantial evidence and, therefore, was beyond the scope of permissible judicial review. Minton, J. with whom Jackson and Burton, JJ. agreed was of the opinion that the administrative finding was without any evidence. 22. This case really is an authority on the scope and extent of power of judicial review of an administrative order. The important fact which was noted in that case was that the deceased along with other employee had discovered that third persons who were in danger were in a recreation area maintained by his employer for the benefit of the employees. This finding was held to be based on substantial evidence. Frankfuter, J. observed that `` we do not mean that the evidence compelled this inference; we do not suggest that when the Deputy Commissioner had decided against the claim, the Court had been justified in disturbing his conclusion. We hold only that on this record, the decision of the District Court that the award should not be set aside should be sustained. In other words, Frankfurter, J. was of the view that from the evidence on record, either of the two conclusions could have been drawn. It is well settled that the Court will not disturb a finding of an administrative tribunal merely because it could have been taken a contrary view had it heard the case on evidence, when the view taken by the Tribunal is also a plausible view. 23. The other American decision, is in the case of OKeefee, Deputy Commissioner v Smith, Minchman and Grylls Associations, Inc, et. al., (13 L. ed 2d 895). In that case, a private engineering concerns employee hired to work in South Korea on a 365 day basis was drowned while boating on a South Korean lake. The Deputy Workmens Compensation Commissioner determined that the employees death arose out of and in course of employment so as to entitle his widow and minor child to death benefits. The decision being challenged by a writ, a panel of the Court of Appeals for the Fifth Circuit reversed the award. The Supreme Court held that there was no scope for reviewing the decision of the Deputy Commissioner. The Court of Appeals erred in summarily reversing the judgment. It was observed that ``while this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedents death, in a zone of danger, arose out of and in the course of the his employment is irrational or without substantial evidence on the record as a whole. 24. Here again, the U.S. Supreme Court declined to intervene with the decision reached by the Deputy Commissioner on evidence and reversed the decision of the court of appeal for doing what it should not have done by adopting what appeared to the Court to be a better view. 25. We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment. 28. In the case of Dover Navigation Co. Ltd. v. Isabella Craig, (1940 AC 190), it was observed by Lord Wright that - ``Nothing could be simpler than the words ``arising out of and in the course of the employment. It is clear that there two conditions to be fulfilled. What arises `` in the course of the employment is to be distinguished from what arises ``out of the employment. The former words relate to time conditioned by reference to the mans service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence, the section imports a distinction which it does not define. The language is simple and unqualified. 29. Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment.. | 1[ds]In our view, this cannot be a ground for departing from the principle laid down by the aforementioned cases that the employment of the workmen does not commence until he has reached the place of employment. What happens before that is not in course of employment. It was also pointed out by Lord Denning in the aforesaid case of Regina v. National Insurance Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of the phrase `` in the course of his employment has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course ofemployee was to report for duty at 4.30 p.m. The accident took place at 4.15 p.m. only one kilometer away from the factory.In our view, this cannot be a ground for departing from the principle laid down by the aforementioned cases that the employment of the workmen does not commence until he has reached the place of employment. What happens before that is not in course of employment. It was also pointed out by Lord Denning in the aforesaid case of Regina v. National Insurance Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of the phrase `` in the course of his employment has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.The case squarely comes within the proposition of law propounded by S. Jafer Imam,decision in our view, does not come to the assistance of the employees case. An employee of a Transport Undertaking was travelling in vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked.16. But in the case before us, facts are entirely different. The employee was not obliged to travel in any particular way under the terms of employment nor can it be said that he was travelling in a transport provided by the employer.It is doubtful whether his decision can be reconciled with the principle laid down by S. Jafer Imam, J. in the case of Saurashtra Salt Manufacturing Co. (supra). It is also to be noted that the death was not caused by an `accident. The death was due to acute cardiac failure. The causal connection between the death and employment had not been established. Moreover, walking to the bus stop from the employees residence and boarding the bus for going to the place of work cannot be acts in course of employment. | 1 | 5,999 | 1,196 | ### 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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this case, an employee, of a Government contractor was at recreation centre maintained by his employer near an ocean shore along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effects. erected. On perceiving that two men standing on a reef beyond the channel were signalling for help, he undertook, with others, so swim the channel, and was drowned. The Administrative Tribunal found that the employees death arose ``out of and in course of his employment. Six members of the U.S. Supreme Court concurred with the opinion of Frankfurter, J. that the administrative decision was supported by ``substantial evidence and, therefore, was beyond the scope of permissible judicial review. Minton, J. with whom Jackson and Burton, JJ. agreed was of the opinion that the administrative finding was without any evidence. 22. This case really is an authority on the scope and extent of power of judicial review of an administrative order. The important fact which was noted in that case was that the deceased along with other employee had discovered that third persons who were in danger were in a recreation area maintained by his employer for the benefit of the employees. This finding was held to be based on substantial evidence. Frankfuter, J. observed that `` we do not mean that the evidence compelled this inference; we do not suggest that when the Deputy Commissioner had decided against the claim, the Court had been justified in disturbing his conclusion. We hold only that on this record, the decision of the District Court that the award should not be set aside should be sustained. In other words, Frankfurter, J. was of the view that from the evidence on record, either of the two conclusions could have been drawn. It is well settled that the Court will not disturb a finding of an administrative tribunal merely because it could have been taken a contrary view had it heard the case on evidence, when the view taken by the Tribunal is also a plausible view. 23. The other American decision, is in the case of OKeefee, Deputy Commissioner v Smith, Minchman and Grylls Associations, Inc, et. al., (13 L. ed 2d 895). In that case, a private engineering concerns employee hired to work in South Korea on a 365 day basis was drowned while boating on a South Korean lake. The Deputy Workmens Compensation Commissioner determined that the employees death arose out of and in course of employment so as to entitle his widow and minor child to death benefits. The decision being challenged by a writ, a panel of the Court of Appeals for the Fifth Circuit reversed the award. The Supreme Court held that there was no scope for reviewing the decision of the Deputy Commissioner. The Court of Appeals erred in summarily reversing the judgment. It was observed that ``while this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedents death, in a zone of danger, arose out of and in the course of the his employment is irrational or without substantial evidence on the record as a whole. 24. Here again, the U.S. Supreme Court declined to intervene with the decision reached by the Deputy Commissioner on evidence and reversed the decision of the court of appeal for doing what it should not have done by adopting what appeared to the Court to be a better view. 25. We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment. 28. In the case of Dover Navigation Co. Ltd. v. Isabella Craig, (1940 AC 190), it was observed by Lord Wright that - ``Nothing could be simpler than the words ``arising out of and in the course of the employment. It is clear that there two conditions to be fulfilled. What arises `` in the course of the employment is to be distinguished from what arises ``out of the employment. The former words relate to time conditioned by reference to the mans service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence, the section imports a distinction which it does not define. The language is simple and unqualified. 29. Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course of employment..
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the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.We fail to understand how these two American decisions which really dealt with the scope and extent of judicial review of a decision based essentially on finding of fact can come to the aid of the employee in this case.26. It has to be borne in mind that this is not a case of judicial review. The Employees State Insurance Act, 1948 provides for reference to the High Court by the statutory Courts set up under the Act, any question of law arising out of its decision (Section 81). There is also a provision for appeal in certain cases on a substantial question of law (Section 82).27. We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometer away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment.Although the facts of this case are quite dissimilar, the principles laid down in this case, are instructive and should be borne in mind. In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a casual connection with the employment, and (3) the accident must have been suffered in course of employment. In the facts of this case, we are of the view that the employee was unable to prove that the accident had any casual connection with the work he was doing at the factory and in any event, it was not suffered in the course ofemployee was to report for duty at 4.30 p.m. The accident took place at 4.15 p.m. only one kilometer away from the factory.In our view, this cannot be a ground for departing from the principle laid down by the aforementioned cases that the employment of the workmen does not commence until he has reached the place of employment. What happens before that is not in course of employment. It was also pointed out by Lord Denning in the aforesaid case of Regina v. National Insurance Commissioner, Ex. Parte Michael (supra) that the extension of the meaning of the phrase `` in the course of his employment has taken place in some cases but in all those cases, the workman was at the premises where he or she worked and was injured while on a visit to the canteen or some other place for a break. The test of what was ``reasonably incidental to employment, may be extended even to cases while an employee is sent on an errand by the employer outside the factory premises. But in such cases, it must be shown that he was doing something incidental to his employment. There may also be cases where an employee has to go out of his workplace in the usual course of his employment. Latham, CJ. in South Maitland Railway Properties Ltd. v. James, (67 CLR 496) observed that when the workmen on a hot day in course of their employment had to go for a short time to get some cool water to drink to enable them to continue to work without which they could not have otherwise continued, they were in such cases doing something in the course of their employment when they went out for water. But the case before us does not fall within the exceptions mentioned by Lord Denning or Latham, CJ.The case squarely comes within the proposition of law propounded by S. Jafer Imam,decision in our view, does not come to the assistance of the employees case. An employee of a Transport Undertaking was travelling in vehicle provided by the employer. Having regard to the purpose for which he was travelling and also having regard to the obligation on the part of the employee to travel in the said buses as a part of his duty, the Court came to the conclusion that this journey was in the course of his employment because the entire fleet of buses formed the premises within which he worked.16. But in the case before us, facts are entirely different. The employee was not obliged to travel in any particular way under the terms of employment nor can it be said that he was travelling in a transport provided by the employer.It is doubtful whether his decision can be reconciled with the principle laid down by S. Jafer Imam, J. in the case of Saurashtra Salt Manufacturing Co. (supra). It is also to be noted that the death was not caused by an `accident. The death was due to acute cardiac failure. The causal connection between the death and employment had not been established. Moreover, walking to the bus stop from the employees residence and boarding the bus for going to the place of work cannot be acts in course of employment.
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DECCAN PAPER MILLS CO. LTD Vs. REGENCY MAHAVIR PROPERTIES | is exactly the same as that which is required to be done under a contract which is rescinded and cancelled (see section 30): and it is clear that both sections 30 and 33 would apply only to contracts or instruments which are rescinded/cancelled in personam. 22. When sections 34 and 35 are seen, the position becomes even clearer. Unlike section 31, under section 34, any person entitled to any legal character may institute a suit for a declaration that he is so entitled. Considering that it is possible to argue on a reading of this provision that the legal character so declared may be against the entire world, section 35 follows, making it clear that such declaration is binding only on the parties to the suit and persons claiming through them, respectively. This is for the reason that under section 4 of the Specific Relief Act, specific relief is granted only for the purpose of enforcing individual civil rights. The principle contained in section 4 permeates the entire Act, and it would be most incongruous to say that every other provision of the Specific Relief Act refers to in personam actions, section 31 alone being out of step, i.e., referring to in rem actions. 23. As a matter of fact, this Court in Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111 clarified that the predecessor to section 35 of the 1963 Act, namely, section 43 of the Specific Relief Act, 1877, made it clear that both sections 42 and 43 of the Specific Relief Act, 1877 go together and refer only to an action that is in personam. This was felicitously stated by this Court as follows: ... Sections 42 and 43, as indicated above, go together, and are meant to be coextensive in their operation. That being so, a declaratory judgment in respect of a disputed status, will be binding not only upon the parties actually before the court, but also upon persons claiming through them respectively. The use of the word only in Section 43, as rightly contended on behalf of the appellant, was meant to emphasize that a declaration in Chapter VI of the Specific Relief Act, is not a judgment in rem. But even though such a declaration operates only in personam, the section proceeds further to provide that it binds not only the parties to the suit, but also persons claiming through them, respectively. The word respectively has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. This is another indication of the sound rule that the court, in a particular case where it has reasons to believe that there is no real conflict, may, in exercise of a judicial discretion, refuse to grant the declaration asked for oblique reasons. (at p. 1131) 24. Also, in an instructive judgment of this Court in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 , in the context of the Court Fees Act, 1870 this Court held: 7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. 25. The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem. 26. Given this finding of law, it is clear that the judgments of the District Court and the High Court in this case need no interference. | 0[ds]4. We have, in our judgment in Avitel Post Studioz Limited & Ors. v. HSBC PI Holding (Mauritius) Ltd., Civil Appeal No. 5145 of 2016, laid down the law on invocation of the fraud exception in some detail, which reasoning we adopt and follow. The said judgment indicates that given the case law since N. Radhakrishnan (supra), it is clear that N. Radhakrishnan (supra), as a precedent, has no legs to stand on. If the subject matter of an agreement between parties falls within section 17 of the Indian Contract Act, 1872, or involves fraud in the performance of the contract, as has been held in the aforesaid judgment, which would amount to deceit, being a civil wrong, the subject matter of such agreement would certainly be arbitrable. Further, we have also held that merely because a particular transaction may have criminal overtones as well, does not mean that its subject matter becomes non-arbitrable. We have no doubt that Shri Navre is right in his submission that there is no averment that the agreement dated 20.05.2006 and the deed of confirmation dated 13.07.2006 were not entered into at all, as a result of which the arbitration clause would be non-existent. Further, it is equally clear that the suit is one that is inter parties with no public overtones, as has been understood in paragraph 14 of Avitel (supra), as a result of which this exception would clearly not apply to the facts of this case.5. Smt. Doshi then cited State of A.P. & Anr. v. T. Suryachandra Rao, (2005) 6 SCC 149 and read paragraphs 8 to 16 of the judgment to impress upon us that fraud vitiates every solemn act and that a conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. This case arose out of an order of the Land Reforms Tribunal which held against the respondent, stating that they had fraudulently taken advantage of the ceiling limit under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 by suppression of facts. In this case, the Tribunal reopened the matter when it found that the land which was surrendered had already been acquired in proceedings under the Land Acquisition Act, 1898. The question was whether the Tribunal was justified in modifying the earlier order and leaving out such land. It was held, by a concurrent finding of fact, that the Tribunal was capable of so varying the order. It was in this backdrop that the general observations on fraud were made. This case has no relevance to the exact issue before this Court.6. We are also inclined to accept Shri Navres argument on section 8 of the 1996 Act, in view of some of the recent judgments on section 8 after the 2015 Amendment Act. (See Ameet Lalchand Shah v. Rishabh Enterprises, (2018) 15 SCC 678 at pp. 698-700, Mayavati Trading Pvt. Ltd. v. Pradyut Deb Burman, (2019) 8 SCC 714 at pp. 724-725, and Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751 at pp. 779-783). It is enough to state that there is a sea change between section 8 of the 1996 Act and section 20 of the Arbitration Act, 1940, as has been held in paragraph 9 of Avitel Post Studioz Limited & Ors. v. HSBC PI Holding (Mauritius) Ltd., Civil Appeal No. 5145 of 2016. Post amendment, it is clear that the judicial authority before which an action is brought shall, if the other conditions of section 8 are met, refer the parties to arbitration unless it finds that prima facie, no valid arbitration agreement exists. As has been held hereinabove, in the present case, the finding that is returned is correct – a valid arbitration agreement certainly exists as the agreements that are sought to be cancelled are not stated not to have ever been entered into.The very sheet anchor of Smt. Doshis case, namely, the judgment in Booz Allen (supra), refers to the judgment of this Court in Olympus Superstructures v. Meena Vijay Khetan, (1999) 5 SCC 651 [hereinafter referred to as Olympus], in which it was held that an arbitrator has the power and jurisdiction to grant specific performance of contracts relating to immovable property (see paragraphs 43 and 44).9. A perusal of the judgment in Olympus (supra) would show that this Court was faced with differing views taken by the High Courts as to whether specific performance of a contract relating to immovable property is at all arbitrable. The Delhi High Court in Sulochana Uppal v. Surinder Sheel Bhakri, AIR 1991 Del 138 [hereinafter referred to as Sulochana Uppal] had held that specific performance of an agreement could not be granted by an arbitrator for the reason that:15. An agreement to refer a dispute to arbitration, the effect of which would be to have an award directing specific performance of an agreement to sell, would have for its object to defeat the provisions of the Specific Relief Act, especially sections 10 and 20 thereof. It is clearly intended by the aforesaid provisions that it is only courts, and courts alone who would have jurisdiction to grant or refuse specifice learned Single Judge thus disagreed with the contrary view of the Bombay High Court and the Punjab High Court.10. It is important to note that this Court referred to all the aforesaid three judgments, including a judgment of the Calcutta High Court. In arriving at the conclusion that the Punjab, Bombay, and Calcutta High Courts view is the correct one and that the Delhi High Courts view, being incorrect, is overruledThus far, therefore, it is clear that an action for rescission of a contract and delivering up of that contract to be cancelled is an action in personam which can be the subject matter of a suit for specific performance, making such rescission and delivering up the contract to be cancelled, the subject matter of arbitration.The expression any person does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. Importantly, relief under section 39 of the Specific Relief Act, 1877 would be granted only in respect of an instrument likely to affect the title of the plaintiff, and not of an instrument executed by a stranger to that title. The expression any person in this section has been held by this Court to include a person seeking derivative title from his seller (see Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767 , at p. 771). The principle behind the section is to protect a party or a person having a derivative title to property from such party from a prospective misuse of an instrument against him. A reading of section 31(1) then shows that when a written instrument is adjudged void or voidable, the Court may then order it to be delivered up to the plaintiff and cancelled – in exactly the same way as a suit for rescission of a contract under section 29. Thus far, it is clear that the action under section 31(1) is strictly an action inter parties or by persons who obtained derivative title from the parties, and is thus in personam.According to the judgment in Aliens Developers (supra), the moment a registered instrument is cancelled, the effect being to remove it from a public register, the adjudicatory effect of the Court would make it a judgment in rem. Further, only a competent court is empowered to send the cancellation decree to the officer concerned, to effect such cancellation and note on the copy of the instrument contained in his books the fact of its cancellation. Both reasons are incorrect. An action that is started under section 31(1) cannot be said to be in personam when an unregistered instrument is cancelled and in rem when a registered instrument is cancelled. The suit that is filed for cancellation cannot be in personam only for unregistered instruments by virtue of the fact that the decree for cancellation does not involve its being sent to the registration office – a ministerial action which is subsequent to the decree being passed. In fact, in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 , a certified copy of a registered instrument, being a receipt dated 29.03.1881 signed by the owner, was held not to be a public record of a private document under section 74(2) of the Indian Evidence Act, 1872 for the reason that the original has to be returned to the party under section 61(2) of the Registration Act, 1908 (see p. 87).Thus, the factum of registration of what is otherwise a private document inter parties does not clothe the document with any higher legal status by virtue of its registration.18. Also, it must be remembered that the Delhi High Courts reasoning in Sulochana Uppal (supra) that it is the Court alone that can, under the Specific Relief Act, enforce specific performance of an agreement, is contra to the reasoning in Olympus (supra) which overruled it, stating that the dispute or difference which parties to an arbitration agreement agree to refer must consist of justiciable issues triable civilly. Since specific performance is a justiciable issue triable civilly, obviously, the expression court occurring throughout the Specific Relief Act will have to be substituted by arbitrator or arbitral tribunal. This part of the reasoning in Aliens Developers (supra), in following the same reasoning as an overruled Delhi High Court judgment, would fly in the face of Olympus (supra) and would, therefore, not be good law. We, therefore, overrule the same.Judged by these authorities, it is clear that the proceeding under section 31 is with reference to specific persons and not with reference to all who may be concerned with the property underlying the instrument, or all the world. Clearly, the cancellation of the instrument under section 31 is as between the parties to the action and their privies and not against all persons generally, as the instrument that is cancelled is to be delivered to the plaintiff in the cancellation suit. A judgment delivered under section 31 does not bind all persons claiming an interest in the property inconsistent with the judgment, even though pronounced in their absence.21. A reading of sections 32 and 33 of the Specific Relief Act, 1963 would also show that the reasoning of the High Court in Aliens Developers (supra) is flawed. Where, for example, under section 32, an instrument is cancelled in part, the instrument which is otherwise only an instrument inter parties, cannot be said to be an instrument which remains inter parties, the cancelled portion being a cancellation to the world at large, i.e., in rem. Equally, under section 33, when compensation is required to be paid or restoration of benefit which has been received from the other party is required to be made, it is exactly the same as that which is required to be done under a contract which is rescinded and cancelled (see section 30): and it is clear that both sections 30 and 33 would apply only to contracts or instruments which are rescinded/cancelled in personam.22. When sections 34 and 35 are seen, the position becomes even clearer. Unlike section 31, under section 34, any person entitled to any legal character may institute a suit for a declaration that he is so entitled. Considering that it is possible to argue on a reading of this provision that the legal character so declared may be against the entire world, section 35 follows, making it clear that such declaration is binding only on the parties to the suit and persons claiming through them, respectively. This is for the reason that under section 4 of the Specific Relief Act, specific relief is granted only for the purpose of enforcing individual civil rights. The principle contained in section 4 permeates the entire Act, and it would be most incongruous to say that every other provision of the Specific Relief Act refers to in personam actions, section 31 alone being out of step, i.e., referring to in rem actions.24. Also, in an instructive judgment of this Court in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 , in the context of the Court Fees Act, 1870 this Court held:7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.. The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem.26. Given this finding of law, it is clear that the judgments of the District Court and the High Court in this case need no interference.11. A perusal of section 26(1) of the Specific Relief Act, 1963 would show that when, through fraud or mutual mistake of parties, a contract or other instrument in writing does not express the real intent of the parties, then either party or his representative in interest may either institute a suit to have the instrument rectified or as defendant, may, in addition to any defence open to him, ask for rectification of the instrument. Importantly, under section 26(3), a party may pray in a rectification suit for specific performance – and if the Court thinks fit, may after rectifying the contract, grant specific performance of the contract. Thus, what is made clear by this section is that the rectification of a contract can be the subject matter of a suit for specific performance, which, as we have already seen, can be the subject matter of an arbitral proceeding.12. Under section 27(1) of the Specific Relief Act, 1963, any party interested in a contract may sue to have it rescinded and such rescission may be adjudged by the Court in the cases mentioned in clauses (a) and (b) of sub-section (1). Sub-section (2) of section 27 refers to four exceptions to this rule. In Shravan Goba Mahajan v. Kashiram Devji, ILR (1927) 51 Bom 133 , a Division Bench of the Bombay High Court, with regard to section 35 of the Specific Relief Act, 1877 (which is the pari materia provision to section 27 of the 1963 Act) held that an heir is a person interested in the contract which is sought to be set aside, thus, making it clear that the expression any person interested would include not just a party to the contract, but persons who may be heirs of one of the parties to the contract. A reading of this section would also show that all such actions in which a contract or instrument may be rectified or rescinded, no judgment in rem follows, as what is sought to be rectified or rescinded is by the parties to the contract or persons who may be their heirs or legal representatives. Third parties to the contract are not persons who can be said to be any person interested, particularly when section 27(2)(c), which refers to third parties, is seen and contrasted with the expression any person interested in section 27(1) – under section 27(2)(c), third parties come in as an exception to the rule only when they have acquired rights in good faith, without notice and for value, during the subsistence of the contract between the parties to that contract.13. Sections 29 and 30 are also important, in that a plaintiff instituting a suit for specific performance may pray in the alternative that if the contract cannot be specifically enforced, it may be rescinded and be delivered up to be cancelled. In addition, on adjudging the rescission of the contract, the Court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require. These two sections would also show that following rescission of a contract, it has to be delivered up to the plaintiff to be cancelled – and all of this can be done in a suit for specific performance.Thus far, therefore, it is clear that an action for rescission of a contract and delivering up of that contract to be cancelled is an action in personam which can be the subject matter of a suit for specific performance, making such rescission and delivering up the contract to be cancelled, the subject matter of arbitration.Referring to section 31, a Division Bench of the High Court in Aliens Developers (supra) held:14. ... Under Section 31(2) of the Specific Relief Act, Legislature conferred the power on Courts to send a copy of the cancellation decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books, the fact of its cancellation. It is evident from the provision under Section 31(2) that the power of nullifying the effect of registration is conferred only on the Court. In the judgment in Booz Allens case (supra), the Honble Supreme Court has held that a right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals and actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas, actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. In the said judgment, it is clearly held that if the adjudicatory effect of the Court is a judgment in rem, only public fora i.e. Courts and Tribunals have to adjudicate such disputes, but not the Arbitral Tribunals as agreed by the parties. As much as the Development Agreement-cum-Irrevocable Power of Attorney is a registered one and is relating to title of the property, any cancellation will affect the removal of rights accrued to the parties, such cancellation is to be communicated to the officer who has registered the document, in view of the provision under Section 31(2) of the Specific Relief Act. Therefore, we are of the considered view that such adjudicatory function in cases like this will operate in rem. In any event, having regard to the power conferred on Courts by virtue of the provision under Section 31(2) of the Specific Relief Act, only a competent Court is empowered to send the cancellation decree, to the officer concerned, to effect such cancellation and note in his books to that effect. When such Statutory power is conferred on Courts, such power cannot be exercised by the Arbitrator, in spite of the fact that there is an arbitration clause in the agreement entered between the parties… | 0 | 13,107 | 4,019 | ### Instruction:
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is exactly the same as that which is required to be done under a contract which is rescinded and cancelled (see section 30): and it is clear that both sections 30 and 33 would apply only to contracts or instruments which are rescinded/cancelled in personam. 22. When sections 34 and 35 are seen, the position becomes even clearer. Unlike section 31, under section 34, any person entitled to any legal character may institute a suit for a declaration that he is so entitled. Considering that it is possible to argue on a reading of this provision that the legal character so declared may be against the entire world, section 35 follows, making it clear that such declaration is binding only on the parties to the suit and persons claiming through them, respectively. This is for the reason that under section 4 of the Specific Relief Act, specific relief is granted only for the purpose of enforcing individual civil rights. The principle contained in section 4 permeates the entire Act, and it would be most incongruous to say that every other provision of the Specific Relief Act refers to in personam actions, section 31 alone being out of step, i.e., referring to in rem actions. 23. As a matter of fact, this Court in Razia Begum v. Sahebzadi Anwar Begum, 1959 SCR 1111 clarified that the predecessor to section 35 of the 1963 Act, namely, section 43 of the Specific Relief Act, 1877, made it clear that both sections 42 and 43 of the Specific Relief Act, 1877 go together and refer only to an action that is in personam. This was felicitously stated by this Court as follows: ... Sections 42 and 43, as indicated above, go together, and are meant to be coextensive in their operation. That being so, a declaratory judgment in respect of a disputed status, will be binding not only upon the parties actually before the court, but also upon persons claiming through them respectively. The use of the word only in Section 43, as rightly contended on behalf of the appellant, was meant to emphasize that a declaration in Chapter VI of the Specific Relief Act, is not a judgment in rem. But even though such a declaration operates only in personam, the section proceeds further to provide that it binds not only the parties to the suit, but also persons claiming through them, respectively. The word respectively has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. This is another indication of the sound rule that the court, in a particular case where it has reasons to believe that there is no real conflict, may, in exercise of a judicial discretion, refuse to grant the declaration asked for oblique reasons. (at p. 1131) 24. Also, in an instructive judgment of this Court in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 , in the context of the Court Fees Act, 1870 this Court held: 7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. 25. The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem. 26. Given this finding of law, it is clear that the judgments of the District Court and the High Court in this case need no interference.
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mistake of parties, a contract or other instrument in writing does not express the real intent of the parties, then either party or his representative in interest may either institute a suit to have the instrument rectified or as defendant, may, in addition to any defence open to him, ask for rectification of the instrument. Importantly, under section 26(3), a party may pray in a rectification suit for specific performance – and if the Court thinks fit, may after rectifying the contract, grant specific performance of the contract. Thus, what is made clear by this section is that the rectification of a contract can be the subject matter of a suit for specific performance, which, as we have already seen, can be the subject matter of an arbitral proceeding.12. Under section 27(1) of the Specific Relief Act, 1963, any party interested in a contract may sue to have it rescinded and such rescission may be adjudged by the Court in the cases mentioned in clauses (a) and (b) of sub-section (1). Sub-section (2) of section 27 refers to four exceptions to this rule. In Shravan Goba Mahajan v. Kashiram Devji, ILR (1927) 51 Bom 133 , a Division Bench of the Bombay High Court, with regard to section 35 of the Specific Relief Act, 1877 (which is the pari materia provision to section 27 of the 1963 Act) held that an heir is a person interested in the contract which is sought to be set aside, thus, making it clear that the expression any person interested would include not just a party to the contract, but persons who may be heirs of one of the parties to the contract. A reading of this section would also show that all such actions in which a contract or instrument may be rectified or rescinded, no judgment in rem follows, as what is sought to be rectified or rescinded is by the parties to the contract or persons who may be their heirs or legal representatives. Third parties to the contract are not persons who can be said to be any person interested, particularly when section 27(2)(c), which refers to third parties, is seen and contrasted with the expression any person interested in section 27(1) – under section 27(2)(c), third parties come in as an exception to the rule only when they have acquired rights in good faith, without notice and for value, during the subsistence of the contract between the parties to that contract.13. Sections 29 and 30 are also important, in that a plaintiff instituting a suit for specific performance may pray in the alternative that if the contract cannot be specifically enforced, it may be rescinded and be delivered up to be cancelled. In addition, on adjudging the rescission of the contract, the Court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require. These two sections would also show that following rescission of a contract, it has to be delivered up to the plaintiff to be cancelled – and all of this can be done in a suit for specific performance.Thus far, therefore, it is clear that an action for rescission of a contract and delivering up of that contract to be cancelled is an action in personam which can be the subject matter of a suit for specific performance, making such rescission and delivering up the contract to be cancelled, the subject matter of arbitration.Referring to section 31, a Division Bench of the High Court in Aliens Developers (supra) held:14. ... Under Section 31(2) of the Specific Relief Act, Legislature conferred the power on Courts to send a copy of the cancellation decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books, the fact of its cancellation. It is evident from the provision under Section 31(2) that the power of nullifying the effect of registration is conferred only on the Court. In the judgment in Booz Allens case (supra), the Honble Supreme Court has held that a right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals and actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas, actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. In the said judgment, it is clearly held that if the adjudicatory effect of the Court is a judgment in rem, only public fora i.e. Courts and Tribunals have to adjudicate such disputes, but not the Arbitral Tribunals as agreed by the parties. As much as the Development Agreement-cum-Irrevocable Power of Attorney is a registered one and is relating to title of the property, any cancellation will affect the removal of rights accrued to the parties, such cancellation is to be communicated to the officer who has registered the document, in view of the provision under Section 31(2) of the Specific Relief Act. Therefore, we are of the considered view that such adjudicatory function in cases like this will operate in rem. In any event, having regard to the power conferred on Courts by virtue of the provision under Section 31(2) of the Specific Relief Act, only a competent Court is empowered to send the cancellation decree, to the officer concerned, to effect such cancellation and note in his books to that effect. When such Statutory power is conferred on Courts, such power cannot be exercised by the Arbitrator, in spite of the fact that there is an arbitration clause in the agreement entered between the parties…
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FORTUNE IMPEX Vs. COMMISSIONER OF CUSTOMS, KOLKATA | 1. These appeals arise out of the common judgment and order dated 3rd July, 2001 passed by the Central Excise and Gold (Control) Appellate Tribunal, Eastern Bench Kolkata (hereinafter referred to as the Tribunal) in Appeal No. C/RV-21/98 etc. whereby the Tribunal dismissed the appeal filed by the appellants and confirmed a penalty of Rs. four lakhs and upheld the allegations contained in the show cause notice issued by the Assistant Commissioner of Customs, Air Cargo Complex (Exports), Kolkata. Aggrieved by the same, the appellants have filed the aforesaid appeals. Heard the learned counsel for the parties. 2. Considering the facts and circumstances of the case, in our view, the impugned order passed by the Tribunal does not call for interference. However, it is submitted by the learned counsel for the appellants that the penalty imposed by the Authority is in violation of Section 114 of the Customs Act, 1962 because it is imposed both on the appellant-Company which attempted to export the goods as well as on the Company which had supplied the same. As no such contention was raised before the Tribunal, in our view, this contention is not required to be entertained at this stage in these appeals. We, however, note that it is the submission of the learned counsel for the respondent that Directors/Partners of both the companies, namely, which attempted to export and which supplied the goods are same. | 0[ds]2. Considering the facts and circumstances of the case, in our view, the impugned order passed by the Tribunal does not call for interference.As no such contention was raised before the Tribunal, in our view, this contention is not required to be entertained at this stage in these appeals. We, however, note that it is the submission of the learned counsel for the respondent that Directors/Partners of both the companies, namely, which attempted to export and which supplied the goods are same. | 0 | 267 | 97 | ### 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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1. These appeals arise out of the common judgment and order dated 3rd July, 2001 passed by the Central Excise and Gold (Control) Appellate Tribunal, Eastern Bench Kolkata (hereinafter referred to as the Tribunal) in Appeal No. C/RV-21/98 etc. whereby the Tribunal dismissed the appeal filed by the appellants and confirmed a penalty of Rs. four lakhs and upheld the allegations contained in the show cause notice issued by the Assistant Commissioner of Customs, Air Cargo Complex (Exports), Kolkata. Aggrieved by the same, the appellants have filed the aforesaid appeals. Heard the learned counsel for the parties. 2. Considering the facts and circumstances of the case, in our view, the impugned order passed by the Tribunal does not call for interference. However, it is submitted by the learned counsel for the appellants that the penalty imposed by the Authority is in violation of Section 114 of the Customs Act, 1962 because it is imposed both on the appellant-Company which attempted to export the goods as well as on the Company which had supplied the same. As no such contention was raised before the Tribunal, in our view, this contention is not required to be entertained at this stage in these appeals. We, however, note that it is the submission of the learned counsel for the respondent that Directors/Partners of both the companies, namely, which attempted to export and which supplied the goods are same.
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2. Considering the facts and circumstances of the case, in our view, the impugned order passed by the Tribunal does not call for interference.As no such contention was raised before the Tribunal, in our view, this contention is not required to be entertained at this stage in these appeals. We, however, note that it is the submission of the learned counsel for the respondent that Directors/Partners of both the companies, namely, which attempted to export and which supplied the goods are same.
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Vijaya Laxmi Sugar Mills Ltd Vs. Commissioner Of Income Tax, Kanpur | its Liquidation was engaged in the manufacture of sugar. The records do not disclose that the Liquidator was carrying on the business of manufacture of sugar or any trading activity for the purpose of facilitating the winding up. The statement of facts on record show that the Liquidator realised certain amount by way of sale of the assets of the company in Liquidation and it is those sale proceeds that was invested in fixed deposit which earned the interest. The Liquidator in merely realising the assets of the company could not be considered as carry on any business of the company. The activity of realising the assets and banking them in fixed deposit was in the course of winding up and it was not in furtherance of any business activity carried on by the company before its winding up.There may be cases where the Liquidator may be said to carry on the companys business in so far as is necessary for the winding up or facilitate the winding up or realise the assets of the company in such a way as to involve the carrying on trade. But in this case there is no evidence in this regard. In fact the winding up order was made as early as in 1950 and nothing of the winding up activity is in evidence. The only accepted fact is that the interest income was derived from fixed deposits purchased out of the proceeds of sale of assets during winding up. The assessee, therefore, could not be said to have carried o n any business to bring the interest income within the meaning of section 28 of the Act and that therefore the interest income was liable to be assessed only under the head "Income From Other Sources". Very near to the facts of this case is t he decision reported in Morvi Mercantile Bank Ltd. (In Liquidation) v. Commissioner of Income Tax, Gujarat, 1976 (104) ITR 568 Guj. In that case the assessee a banking company was compulsorily wound up and its licence was suspended by the Reserve Bank. The Official Liquidator realised the assets and invested the money in short term deposit pending distribution. It was contended on behalf of the company in Liquidation that the income realised by the Liquidator was business income and that the Income Tax Officer was not right in treating it as "Income From Other Sources". Rejecting this contention the Gujarat High Court held: "That the assets of which the liquidator was seized and which he tried to realise for purposes of winding up were of capital nature and they cannot be said to be business assets; nor can it be said that merely because he was investing the realisations, assuming that that was permissible either under the memorandum or under the statute, the activities which he was carrying on as a liquidator were those of a businessman. In the circumstances, therefore, we cannot uphold the contention of Mr. Patel that the liquidator was making for merecantile necessity the investment of realisations as a business for beneficial winding up of the company. The Tribunal has found as a fact that the main business of the assessee-company having gone as a result of the winding-up order, there did not remain any other activity which can be legitimately said to be a business activity and whatever the liquidator did was merely as a liquidator for purposes of liquidation of the company".This is indeed the view to be taken even in this case also. The Tribunal was, therefore, right in holding that the interest income in the instant case is not governed by section 28 but fails to be considered under section 56. The next submission of the learned counsel for the assesee was that in the course of effecting the winding up of the assessee company the Liquidator has been incurring expenses such as salaries, legal fees, travelling expenses and other liquidation expenses and that these expenses are allowable deduction from income earned by way of interest from fixed deposits in the relevant year. In computing the income chargeable under the head "Income From Other Sources", section 57(iii) provides that deduction is to be made in respect of expenditure laid out or expended wholly and exclusively for the purpose of making or earning such income. The question for consideration, therefore, is whether the expenses of the type incurred by the Liquidator in this case can be said to have been incurred solely for the purpose of earning the interest income. It is true that the connection between the expenditure and the earning of income need not be direct and it may be indirect. But since the expenditure must have been incurred for the purpose of earning that income there should be some nexus between the expenditure and the earning of the income. There is not even some sort of an evidence to show that the expenses incurred by the Liquidator was to facilitate the earning or at leas t for protecting of the income. The interest accrues SUI GENERIS. The interest is payable by the bank whether it is claimed or not and whether there is any establishment or not. Normally there was no necessity for spending anything separately for earning the interest. However we may hasten to add that if any expenditure was incurred like commission for collection or such similar expenditures which may be considered as spent solely for the purpose of earning that income, the position may be different. But that was not so in this case. It could not also be said that the expenditure incurred was to preserve or acquire the asset. Nor could it be said that the expenses were incurred for the purpose of maintenance of the source. The requirement under section 57(iii) that the expenditure should have been incurred "for the purpose of making or earning such income" show that the object of spending or the end or aim or the intention of such spending was for earning the interest income. | 1[ds]If this contention of his is right the expenditure incurred by the Liquidator shall also be considered as for the purpose of earning the above mentioned income or at least could be said as wholly and exclusively laid out or expended for the purposes of that business and deductable from the total income earned by the company during the relevant previous year. We are wholly at a loss to understand how this argument is possible on the facts and circumstances of this case. As already stated the company had been directed to be wound up and a Liquidator was appointed by the High Court as early as in 1950. The company before its Liquidation was engaged in the manufacture of sugar. The records do not disclose that the Liquidator was carrying on the business of manufacture of sugar or any trading activity for the purpose of facilitating the winding up. The statement of facts on record show that the Liquidator realised certain amount by way of sale of the assets of the company in Liquidation and it is those sale proceeds that was invested in fixed deposit which earned the interest. The Liquidator in merely realising the assets of the company could not be considered as carry on any business of the company. The activity of realising the assets and banking them in fixed deposit was in the course of winding up and it was not in furtherance of any business activity carried on by the company before its winding up.There may be cases where the Liquidator may be said to carry on the companys business in so far as is necessary for the winding up or facilitate the winding up or realise the assets of the company in such a way as to involve the carrying on trade. But in this case there is no evidence in this regard. In fact the winding up order was made as early as in 1950 and nothing of the winding up activity is in evidence. The only accepted fact is that the interest income was derived from fixed deposits purchased out of the proceeds of sale of assets during winding up. The assessee, therefore, could not be said to have carried o n any business to bring the interest income within the meaning of section 28 of the Act and that therefore the interest income was liable to be assessed only under the head "Income From Otheris true that the connection between the expenditure and the earning of income need not be direct and it may be indirect. But since the expenditure must have been incurred for the purpose of earning that income there should be some nexus between the expenditure and the earning of the income. There is not even some sort of an evidence to show that the expenses incurred by the Liquidator was to facilitate the earning or at leas t for protecting of the income. The interest accrues SUI GENERIS. The interest is payable by the bank whether it is claimed or not and whether there is any establishment or not. Normally there was no necessity for spending anything separately for earning the interest. However we may hasten to add that if any expenditure was incurred like commission for collection or such similar expenditures which may be considered as spent solely for the purpose of earning that income, the position may be different. But that was not so in this case. It could not also be said that the expenditure incurred was to preserve or acquire the asset. Nor could it be said that the expenses were incurred for the purpose of maintenance of the source. The requirement under section 57(iii) that the expenditure should have been incurred "for the purpose of making or earning such income" show that the object of spending or the end or aim or the intention of such spending was for earning the interest income. | 1 | 2,018 | 687 | ### Instruction:
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its Liquidation was engaged in the manufacture of sugar. The records do not disclose that the Liquidator was carrying on the business of manufacture of sugar or any trading activity for the purpose of facilitating the winding up. The statement of facts on record show that the Liquidator realised certain amount by way of sale of the assets of the company in Liquidation and it is those sale proceeds that was invested in fixed deposit which earned the interest. The Liquidator in merely realising the assets of the company could not be considered as carry on any business of the company. The activity of realising the assets and banking them in fixed deposit was in the course of winding up and it was not in furtherance of any business activity carried on by the company before its winding up.There may be cases where the Liquidator may be said to carry on the companys business in so far as is necessary for the winding up or facilitate the winding up or realise the assets of the company in such a way as to involve the carrying on trade. But in this case there is no evidence in this regard. In fact the winding up order was made as early as in 1950 and nothing of the winding up activity is in evidence. The only accepted fact is that the interest income was derived from fixed deposits purchased out of the proceeds of sale of assets during winding up. The assessee, therefore, could not be said to have carried o n any business to bring the interest income within the meaning of section 28 of the Act and that therefore the interest income was liable to be assessed only under the head "Income From Other Sources". Very near to the facts of this case is t he decision reported in Morvi Mercantile Bank Ltd. (In Liquidation) v. Commissioner of Income Tax, Gujarat, 1976 (104) ITR 568 Guj. In that case the assessee a banking company was compulsorily wound up and its licence was suspended by the Reserve Bank. The Official Liquidator realised the assets and invested the money in short term deposit pending distribution. It was contended on behalf of the company in Liquidation that the income realised by the Liquidator was business income and that the Income Tax Officer was not right in treating it as "Income From Other Sources". Rejecting this contention the Gujarat High Court held: "That the assets of which the liquidator was seized and which he tried to realise for purposes of winding up were of capital nature and they cannot be said to be business assets; nor can it be said that merely because he was investing the realisations, assuming that that was permissible either under the memorandum or under the statute, the activities which he was carrying on as a liquidator were those of a businessman. In the circumstances, therefore, we cannot uphold the contention of Mr. Patel that the liquidator was making for merecantile necessity the investment of realisations as a business for beneficial winding up of the company. The Tribunal has found as a fact that the main business of the assessee-company having gone as a result of the winding-up order, there did not remain any other activity which can be legitimately said to be a business activity and whatever the liquidator did was merely as a liquidator for purposes of liquidation of the company".This is indeed the view to be taken even in this case also. The Tribunal was, therefore, right in holding that the interest income in the instant case is not governed by section 28 but fails to be considered under section 56. The next submission of the learned counsel for the assesee was that in the course of effecting the winding up of the assessee company the Liquidator has been incurring expenses such as salaries, legal fees, travelling expenses and other liquidation expenses and that these expenses are allowable deduction from income earned by way of interest from fixed deposits in the relevant year. In computing the income chargeable under the head "Income From Other Sources", section 57(iii) provides that deduction is to be made in respect of expenditure laid out or expended wholly and exclusively for the purpose of making or earning such income. The question for consideration, therefore, is whether the expenses of the type incurred by the Liquidator in this case can be said to have been incurred solely for the purpose of earning the interest income. It is true that the connection between the expenditure and the earning of income need not be direct and it may be indirect. But since the expenditure must have been incurred for the purpose of earning that income there should be some nexus between the expenditure and the earning of the income. There is not even some sort of an evidence to show that the expenses incurred by the Liquidator was to facilitate the earning or at leas t for protecting of the income. The interest accrues SUI GENERIS. The interest is payable by the bank whether it is claimed or not and whether there is any establishment or not. Normally there was no necessity for spending anything separately for earning the interest. However we may hasten to add that if any expenditure was incurred like commission for collection or such similar expenditures which may be considered as spent solely for the purpose of earning that income, the position may be different. But that was not so in this case. It could not also be said that the expenditure incurred was to preserve or acquire the asset. Nor could it be said that the expenses were incurred for the purpose of maintenance of the source. The requirement under section 57(iii) that the expenditure should have been incurred "for the purpose of making or earning such income" show that the object of spending or the end or aim or the intention of such spending was for earning the interest income.
### Response:
1
### Explanation:
If this contention of his is right the expenditure incurred by the Liquidator shall also be considered as for the purpose of earning the above mentioned income or at least could be said as wholly and exclusively laid out or expended for the purposes of that business and deductable from the total income earned by the company during the relevant previous year. We are wholly at a loss to understand how this argument is possible on the facts and circumstances of this case. As already stated the company had been directed to be wound up and a Liquidator was appointed by the High Court as early as in 1950. The company before its Liquidation was engaged in the manufacture of sugar. The records do not disclose that the Liquidator was carrying on the business of manufacture of sugar or any trading activity for the purpose of facilitating the winding up. The statement of facts on record show that the Liquidator realised certain amount by way of sale of the assets of the company in Liquidation and it is those sale proceeds that was invested in fixed deposit which earned the interest. The Liquidator in merely realising the assets of the company could not be considered as carry on any business of the company. The activity of realising the assets and banking them in fixed deposit was in the course of winding up and it was not in furtherance of any business activity carried on by the company before its winding up.There may be cases where the Liquidator may be said to carry on the companys business in so far as is necessary for the winding up or facilitate the winding up or realise the assets of the company in such a way as to involve the carrying on trade. But in this case there is no evidence in this regard. In fact the winding up order was made as early as in 1950 and nothing of the winding up activity is in evidence. The only accepted fact is that the interest income was derived from fixed deposits purchased out of the proceeds of sale of assets during winding up. The assessee, therefore, could not be said to have carried o n any business to bring the interest income within the meaning of section 28 of the Act and that therefore the interest income was liable to be assessed only under the head "Income From Otheris true that the connection between the expenditure and the earning of income need not be direct and it may be indirect. But since the expenditure must have been incurred for the purpose of earning that income there should be some nexus between the expenditure and the earning of the income. There is not even some sort of an evidence to show that the expenses incurred by the Liquidator was to facilitate the earning or at leas t for protecting of the income. The interest accrues SUI GENERIS. The interest is payable by the bank whether it is claimed or not and whether there is any establishment or not. Normally there was no necessity for spending anything separately for earning the interest. However we may hasten to add that if any expenditure was incurred like commission for collection or such similar expenditures which may be considered as spent solely for the purpose of earning that income, the position may be different. But that was not so in this case. It could not also be said that the expenditure incurred was to preserve or acquire the asset. Nor could it be said that the expenses were incurred for the purpose of maintenance of the source. The requirement under section 57(iii) that the expenditure should have been incurred "for the purpose of making or earning such income" show that the object of spending or the end or aim or the intention of such spending was for earning the interest income.
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Manoranjana Sinh @ Gupta Vs. Central Bureau Of Investigation | Mr. K. Raghavacharyulu, Special Public Prosecutor has assiduously urged that having regard to the mandate of this Court to unfailingl investigate the larger conspiracy angle and determine the money trail of the deep-rooted counterfeit affecting lakhs of innocent depositors, release of the appellant at this stage would be inexpedient. In controversion, it has been asserted that the MOU and the agreement mentioned in the charge-sheet, in the facts of the case are only a front to indulge in criminal activities as divulged in the investigation. While emphasizing that the appellant since her arrest has managed to remain housed in hospitals, by feigning ailments, without suffering any incarceration in the real sense, it has been asserted that lastly, she has also given up her plea based on medical ground and thus it is of no avail or significance for the present. According to Mr. K. Raghavacharyulu, her hospital bills also do not endorse her plea of illness and treatment in connection therewith. He has urged that as the investigation is in progress, notwithstanding the release of some of the accused persons, it is not a fit case to grant bail to the appellant, more so when the Trial Court as well as the High Court have rejected her prayer to that effect on a consideration of all relevant aspects. 14. We have closely analyzed the competing contentions and have perused as well the pleadings and documents presently available on records. In course of the arguments, having noticed the emphasis on the ongoing investigation as a factor against grant of bail, we had required the learned counsel for the CBI to furnish a status report with regard thereto disclosing the updates, for a fair decision.15. Accordingly, a status report had been laid before us in a sealed cover, which apart from the background facts leading to the registration of the case, arrest of the accused persons including the appellant and the submission of the charge-sheets as on date, has not in very clear and persuasive terms indicated the specific issues/areas, presently being pursued in the investigation, so much so to impellingly justify further detention of the appellant in judicial custody. Though traces of the initiatives undertaken are available in the status report, those, in our comprehension, too general in nature. For obvious reasons, we refrain from dilating further on the contents of the said report.16. The recorded facts demonstrate admittedly that the appellant is continuously in judicial custody since 07.10.2015 and that the supplementary charge-sheet against her along with others as mentioned therein, had been filed on 04.01.2016 incorporating the evidence collected against those incriminated. Having regard to the magnitude and canvass of the investigation, it is likely that the exercise would take further time. Though according to the CBI, the ailments of the appellant are not worth any weight as a factor to grant her the privilege of bail, the medical records nevertheless suggest that she is suffering from a variety of ailments. Noticeably, the medical records have been issued by the hospitals in which she is undertaking treatment. We are not unmindful, at this juncture, of the nature of the hospital bills of hers as highlighted by the learned counsel for the respondent. Though it is the plea of the respondent that the appellant at times adopts a disposition to avoid interrogation by the CBI, no convincing material has been brought on record to demonstrate any misuse of her liberty qua the investigation while in the hospitals since her arrest. As per the medical records, her ailments range from ischemic heart disease to asthma, unstable angina, dysfunctional uterine bleeding, constant nausea and lower back pain. 17. This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. 18. In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, we are disposed, for the present to grant bail to the appellant, subject to the conditions, as enumerated hereinafter. To reiterate, having regard to the materials available, we are of the opinion, mainly in the face of the disclosures in the latest status report, that presently further confinement of the appellant in judicial custody is not an indispensable necessity for the unhindered investigation, that is in progress. | 1[ds]14. We have closely analyzed the competing contentions and have perused as well the pleadings and documents presently available on records. In course of the arguments, having noticed the emphasis on the ongoing investigation as a factor against grant of bail, we had required the learned counsel for the CBI to furnish a status report with regard thereto disclosing the updates, for a fair decision.15. Accordingly, a status report had been laid before us in a sealed cover, which apart from the background facts leading to the registration of the case, arrest of the accused persons including the appellant and the submission of the charge-sheets as on date, has not in very clear and persuasive terms indicated the specific issues/areas, presently being pursued in the investigation, so much so to impellingly justify further detention of the appellant in judicial custody. Though traces of the initiatives undertaken are available in the status report, those, in our comprehension, too general in nature. For obvious reasons, we refrain from dilating further on the contents of the said report.16. The recorded facts demonstrate admittedly that the appellant is continuously in judicial custody since 07.10.2015 and that the supplementary charge-sheet against her along with others as mentioned therein, had been filed on 04.01.2016 incorporating the evidence collected against those incriminated. Having regard to the magnitude and canvass of the investigation, it is likely that the exercise would take further time. Though according to the CBI, the ailments of the appellant are not worth any weight as a factor to grant her the privilege of bail, the medical records nevertheless suggest that she is suffering from a variety of ailments. Noticeably, the medical records have been issued by the hospitals in which she is undertaking treatment. We are not unmindful, at this juncture, of the nature of the hospital bills of hers as highlighted by the learned counsel for the respondent. Though it is the plea of the respondent that the appellant at times adopts a disposition to avoid interrogation by the CBI, no convincing material has been brought on record to demonstrate any misuse of her liberty qua the investigation while in the hospitals since her arrest. As per the medical records, her ailments range from ischemic heart disease to asthma, unstable angina, dysfunctional uterine bleeding, constant nausea and lower back pain.In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, we are disposed, for the present to grant bail to the appellant, subject to the conditions, as enumerated hereinafter. To reiterate, having regard to the materials available, we are of the opinion, mainly in the face of the disclosures in the latest status report, that presently further confinement of the appellant in judicial custody is not an indispensable necessity for the unhindered investigation, that is in progress. | 1 | 3,217 | 531 | ### Instruction:
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Mr. K. Raghavacharyulu, Special Public Prosecutor has assiduously urged that having regard to the mandate of this Court to unfailingl investigate the larger conspiracy angle and determine the money trail of the deep-rooted counterfeit affecting lakhs of innocent depositors, release of the appellant at this stage would be inexpedient. In controversion, it has been asserted that the MOU and the agreement mentioned in the charge-sheet, in the facts of the case are only a front to indulge in criminal activities as divulged in the investigation. While emphasizing that the appellant since her arrest has managed to remain housed in hospitals, by feigning ailments, without suffering any incarceration in the real sense, it has been asserted that lastly, she has also given up her plea based on medical ground and thus it is of no avail or significance for the present. According to Mr. K. Raghavacharyulu, her hospital bills also do not endorse her plea of illness and treatment in connection therewith. He has urged that as the investigation is in progress, notwithstanding the release of some of the accused persons, it is not a fit case to grant bail to the appellant, more so when the Trial Court as well as the High Court have rejected her prayer to that effect on a consideration of all relevant aspects. 14. We have closely analyzed the competing contentions and have perused as well the pleadings and documents presently available on records. In course of the arguments, having noticed the emphasis on the ongoing investigation as a factor against grant of bail, we had required the learned counsel for the CBI to furnish a status report with regard thereto disclosing the updates, for a fair decision.15. Accordingly, a status report had been laid before us in a sealed cover, which apart from the background facts leading to the registration of the case, arrest of the accused persons including the appellant and the submission of the charge-sheets as on date, has not in very clear and persuasive terms indicated the specific issues/areas, presently being pursued in the investigation, so much so to impellingly justify further detention of the appellant in judicial custody. Though traces of the initiatives undertaken are available in the status report, those, in our comprehension, too general in nature. For obvious reasons, we refrain from dilating further on the contents of the said report.16. The recorded facts demonstrate admittedly that the appellant is continuously in judicial custody since 07.10.2015 and that the supplementary charge-sheet against her along with others as mentioned therein, had been filed on 04.01.2016 incorporating the evidence collected against those incriminated. Having regard to the magnitude and canvass of the investigation, it is likely that the exercise would take further time. Though according to the CBI, the ailments of the appellant are not worth any weight as a factor to grant her the privilege of bail, the medical records nevertheless suggest that she is suffering from a variety of ailments. Noticeably, the medical records have been issued by the hospitals in which she is undertaking treatment. We are not unmindful, at this juncture, of the nature of the hospital bills of hers as highlighted by the learned counsel for the respondent. Though it is the plea of the respondent that the appellant at times adopts a disposition to avoid interrogation by the CBI, no convincing material has been brought on record to demonstrate any misuse of her liberty qua the investigation while in the hospitals since her arrest. As per the medical records, her ailments range from ischemic heart disease to asthma, unstable angina, dysfunctional uterine bleeding, constant nausea and lower back pain. 17. This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. 18. In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, we are disposed, for the present to grant bail to the appellant, subject to the conditions, as enumerated hereinafter. To reiterate, having regard to the materials available, we are of the opinion, mainly in the face of the disclosures in the latest status report, that presently further confinement of the appellant in judicial custody is not an indispensable necessity for the unhindered investigation, that is in progress.
### Response:
1
### Explanation:
14. We have closely analyzed the competing contentions and have perused as well the pleadings and documents presently available on records. In course of the arguments, having noticed the emphasis on the ongoing investigation as a factor against grant of bail, we had required the learned counsel for the CBI to furnish a status report with regard thereto disclosing the updates, for a fair decision.15. Accordingly, a status report had been laid before us in a sealed cover, which apart from the background facts leading to the registration of the case, arrest of the accused persons including the appellant and the submission of the charge-sheets as on date, has not in very clear and persuasive terms indicated the specific issues/areas, presently being pursued in the investigation, so much so to impellingly justify further detention of the appellant in judicial custody. Though traces of the initiatives undertaken are available in the status report, those, in our comprehension, too general in nature. For obvious reasons, we refrain from dilating further on the contents of the said report.16. The recorded facts demonstrate admittedly that the appellant is continuously in judicial custody since 07.10.2015 and that the supplementary charge-sheet against her along with others as mentioned therein, had been filed on 04.01.2016 incorporating the evidence collected against those incriminated. Having regard to the magnitude and canvass of the investigation, it is likely that the exercise would take further time. Though according to the CBI, the ailments of the appellant are not worth any weight as a factor to grant her the privilege of bail, the medical records nevertheless suggest that she is suffering from a variety of ailments. Noticeably, the medical records have been issued by the hospitals in which she is undertaking treatment. We are not unmindful, at this juncture, of the nature of the hospital bills of hers as highlighted by the learned counsel for the respondent. Though it is the plea of the respondent that the appellant at times adopts a disposition to avoid interrogation by the CBI, no convincing material has been brought on record to demonstrate any misuse of her liberty qua the investigation while in the hospitals since her arrest. As per the medical records, her ailments range from ischemic heart disease to asthma, unstable angina, dysfunctional uterine bleeding, constant nausea and lower back pain.In the above factual premise and on an in-depth balancing of all relevant aspects and chiefly the competitive imperatives of investigation and the right to liberty, we are disposed, for the present to grant bail to the appellant, subject to the conditions, as enumerated hereinafter. To reiterate, having regard to the materials available, we are of the opinion, mainly in the face of the disclosures in the latest status report, that presently further confinement of the appellant in judicial custody is not an indispensable necessity for the unhindered investigation, that is in progress.
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MAGMA GENERAL INSURANCE CO. LTD Vs. NANU RAM ALIAS CHUHRU RAM | Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased.The judgment of the High Court is, therefore, affirmed on this count. 9.3. With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs. 15,000 per month, as claimed, the High Court took his income to be Rs. 6,000, which is marginally above the minimum wage of an unskilled worker at Rs. 5,342.This finding is also not being interfered with. 9.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son.This contention deserves to be repelled.The deceased was a bachelor, whose mother had pre-deceased him. The deceased?s father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents. 9.5. The Insurance Company has contended that the High Court had wrongly awarded Rs.1,00,000 towards loss of love and affection,and Rs. 25,000 towards funeral expenses.The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below : ?Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.?(Emphasis supplied) As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs.15,000.The amount awarded by the High Court towards loss of love and affection is, however, maintained. 9.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).The Motor Vehicles Act is a beneficial and welfare legislation.The Court is duty-bound and entitled to award ?just compensation?, irrespective of whether any plea in that behalf was raised by the Claimant.In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2. 9.7. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.In legal parlance, ?consortium? is a compendious term which encompasses ‘spousal consortium?, ‘parental consortium?, and ‘filial consortium?.The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ?company, society, co-operation, affection, and aid of the other in every conjugal relation.?Parental consortium is granted to the child upon the premature death of a parent, for loss of ?parental aid, protection, affection, society, discipline, guidance and training.?Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra). | 1[ds]Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra). | 1 | 2,781 | 383 | ### 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:
Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased.The judgment of the High Court is, therefore, affirmed on this count. 9.3. With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs. 15,000 per month, as claimed, the High Court took his income to be Rs. 6,000, which is marginally above the minimum wage of an unskilled worker at Rs. 5,342.This finding is also not being interfered with. 9.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son.This contention deserves to be repelled.The deceased was a bachelor, whose mother had pre-deceased him. The deceased?s father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents. 9.5. The Insurance Company has contended that the High Court had wrongly awarded Rs.1,00,000 towards loss of love and affection,and Rs. 25,000 towards funeral expenses.The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below : ?Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.?(Emphasis supplied) As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs.15,000.The amount awarded by the High Court towards loss of love and affection is, however, maintained. 9.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).The Motor Vehicles Act is a beneficial and welfare legislation.The Court is duty-bound and entitled to award ?just compensation?, irrespective of whether any plea in that behalf was raised by the Claimant.In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2. 9.7. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.In legal parlance, ?consortium? is a compendious term which encompasses ‘spousal consortium?, ‘parental consortium?, and ‘filial consortium?.The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ?company, society, co-operation, affection, and aid of the other in every conjugal relation.?Parental consortium is granted to the child upon the premature death of a parent, for loss of ?parental aid, protection, affection, society, discipline, guidance and training.?Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra).
### Response:
1
### Explanation:
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra).
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M/S Punjab Tin Supply Co., Chandigarh Etc. Etc Vs. The Central Government & Ors | It is to be noted that there is no dispute that as soon as the A ct came into force on November 4, 1972 all the buildings which had been constructed prior to that date came within the scope of the Act. The Act also applied to all the buildings which were constructed thereafter and before January 31, 1973 on which date the notification was issued. The point for consideration is whether on the issue of the notification on January 31, 1973 any such building to which the Act already applied was taken out of the operation of the Act. A reading of the notification does not clearly indicate that the Chief Commissioner intended to grant exemption in respect of any of the buildings constructed prior to January 31, 1973. While the words buildings constructed in the urban area of Chandigarh for a period of five years with effect from the date the sewerage connection is granted which are found in the notification refer to all the buildings to which sewerage connection is granted after the date of the notification, they do not necessarily mean and include buildings which had been given sewerage connection within five years prior to that date. There was also no compelling reason for giving exemption to buildings which had already been constructed as the object of issuing the notification as mentioned earlier was only to encourage construction of new buildings thereafter and not to take away the statutory protection already extended to the tenants of buildings which had come into existence prior to January 31, 1973. The landlords of these buildings have, however, relied upon the decision of this Court in Om Prakash Gupta v. Dig Vajendrapal Gupta(1) in support of their contention. In that case, the Court had to construe the provisions of sub- section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), the relevant part of which read thus:"Except as provided in sub-section (5) of section 12, sub-section (1-A) of sect ion 21, sub-section (2) of section 24, sections 24-A, 24-B, 24-C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:xxx xxx xxxExplanation 1.-For the purposes of this sub-section, - (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is re ported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time."9. In the above case, the Court held that the aforesaid provision had retrospective effect and applied to buildings constructed prior to the date on which the said Act came into force provided they satisfied the conditions mentioned therein.10. The above provision appears as part of section 2 of the U.P. Act referred to above which exempted many existing and future buildings which satisfied the conditions refer red to in clauses (a) to (f) of sub-section (1), sub-section (2) and sub-section (3) thereof. The said exemption was given by the statute itself. It may be stated here that at the instance of one of the parties to the Special Leave Petition (Civil) No. 3573 of 1979 (Suresh Chand v. Gulam Chisti) which was disposed of by the same judgment, a review of the above judgment has been granted and by an order made on October 7, 1983 the case is directed to be reheard. Moreover on the construct ion of the above provision, there are two earlier decisions-one in Ratan Lal Shinghal v. Smt. Murti Devi(1) decided on August 21, 1979 in which it is held that the said provision has no retrospective effect but is only prospective in operation and another in Shri Ram Saroop Rai v. Smt. Lilavati(2) decided on May 7, 1980 in which a contrary view is taken. Section 2 of the said U.P. Act requires to be considered in the setting in which it appears. We are of the view that any decision on that provision has to be confined to that provision and cannot be extended to the present case by analogy.There is one other distinction which is sought to be made between an exemption granted by a notification which is issued by a delegate of the Legislature who is not given power by the Legislature to issue a notification having retrospective effect and an exemption granted by the Legislature itself on the basis of the observations made in Strawboard Manufacturing Co. Ltd. v. Gupta Mill Workers Union, Dr. Indramani Pyarelal Gupta v. W. R. Nathu &Ors. and Income-tax Officer, Alleppey v. M.C. Ponnoose &Ors.11. It is not necessary to deal with the above point any further since we are of the view that the notification impugned in these cases stands by itself and it is not to be construed in the background of the provisions of section 2 of the U.P. Act referred to above.12. On a careful consideration of the question we feel that the benefit of the notification cannot be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by section 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973.13 | 1[ds]In these cases the document which has got to be construed is a notification issued under section 3 of the Act by the Chief Commissioner who is only a delegate of the Legislature. It is to be noted that there is no dispute that as soon as the A ct came into force on November 4, 1972 all the buildings which had been constructed prior to that date came within the scope of the Act. The Act also applied to all the buildings which were constructed thereafter and before January 31, 1973 on which date the notification was issued. The point for consideration is whether on the issue of the notification on January 31, 1973 any such building to which the Act already applied was taken out of the operation of the Act. A reading of the notification does not clearly indicate that the Chief Commissioner intended to grant exemption in respect of any of the buildings constructed prior to January 31, 1973. While the words buildings constructed in the urban area of Chandigarh for a period of five years with effect from the date the sewerage connection is granted which are found in the notification refer to all the buildings to which sewerage connection is granted after the date of the notification, they do not necessarily mean and include buildings which had been given sewerage connection within five years prior to that date. There was also no compelling reason for giving exemption to buildings which had already been constructed as the object of issuing the notification as mentioned earlier was only to encourage construction of new buildings thereafter and not to take away the statutory protection already extended to the tenants of buildings which had come into existence prior to January 31, 1973. The landlords of these buildings have, however, relied upon the decision of this Court in Om Prakash Gupta v. Dig Vajendrapal Gupta(1) in support of their contention. In that case, the Court had to construe the provisions of sub- section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), the relevant part of which readas provided in sub-section (5) of section 12, sub-section (1-A) of sect ion 21, sub-section (2) of section 24, sections 24-A, 24-B, 24-C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction isxxx xxxExplanation 1.-For the purposes of this sub-section, - (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is re ported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the firstthe above case, the Court held that the aforesaid provision had retrospective effect and applied to buildings constructed prior to the date on which the said Act came into force provided they satisfied the conditions mentionedabove provision appears as part of section 2 of the U.P. Act referred to above which exempted many existing and future buildings which satisfied the conditions refer red to in clauses (a) to (f) of sub-section (1), sub-section (2) and sub-section (3) thereof. The said exemption was given by the statute itself. It may be stated here that at the instance of one of the parties to the Special Leave Petition (Civil) No. 3573 of 1979 (Suresh Chand v. Gulam Chisti) which was disposed of by the same judgment, a review of the above judgment has been granted and by an order made on October 7, 1983 the case is directed to be reheard. Moreover on the construct ion of the above provision, there are two earlier decisions-one in Ratan Lal Shinghal v. Smt. Murti Devi(1) decided on August 21, 1979 in which it is held that the said provision has no retrospective effect but is only prospective in operation and another in Shri Ram Saroop Rai v. Smt. Lilavati(2) decided on May 7, 1980 in which a contrary view is taken. Section 2 of the said U.P. Act requires to be considered in the setting in which it appears. We are of the view that any decision on that provision has to be confined to that provision and cannot be extended to the present case by analogy.There is one other distinction which is sought to be made between an exemption granted by a notification which is issued by a delegate of the Legislature who is not given power by the Legislature to issue a notification having retrospective effect and an exemption granted by the Legislature itself on the basis of the observations made in Strawboard Manufacturing Co. Ltd. v. Gupta Mill Workers Union, Dr. Indramani Pyarelal Gupta v. W. R. Nathu &Ors. and Income-tax Officer, Alleppey v. M.C. Ponnooseis not necessary to deal with the above point any further since we are of the view that the notification impugned in these cases stands by itself and it is not to be construed in the background of the provisions of section 2 of the U.P. Act referred toa careful consideration of the question we feel that the benefit of the notification cannot be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by section 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973. | 1 | 5,765 | 1,132 | ### 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:
It is to be noted that there is no dispute that as soon as the A ct came into force on November 4, 1972 all the buildings which had been constructed prior to that date came within the scope of the Act. The Act also applied to all the buildings which were constructed thereafter and before January 31, 1973 on which date the notification was issued. The point for consideration is whether on the issue of the notification on January 31, 1973 any such building to which the Act already applied was taken out of the operation of the Act. A reading of the notification does not clearly indicate that the Chief Commissioner intended to grant exemption in respect of any of the buildings constructed prior to January 31, 1973. While the words buildings constructed in the urban area of Chandigarh for a period of five years with effect from the date the sewerage connection is granted which are found in the notification refer to all the buildings to which sewerage connection is granted after the date of the notification, they do not necessarily mean and include buildings which had been given sewerage connection within five years prior to that date. There was also no compelling reason for giving exemption to buildings which had already been constructed as the object of issuing the notification as mentioned earlier was only to encourage construction of new buildings thereafter and not to take away the statutory protection already extended to the tenants of buildings which had come into existence prior to January 31, 1973. The landlords of these buildings have, however, relied upon the decision of this Court in Om Prakash Gupta v. Dig Vajendrapal Gupta(1) in support of their contention. In that case, the Court had to construe the provisions of sub- section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), the relevant part of which read thus:"Except as provided in sub-section (5) of section 12, sub-section (1-A) of sect ion 21, sub-section (2) of section 24, sections 24-A, 24-B, 24-C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:xxx xxx xxxExplanation 1.-For the purposes of this sub-section, - (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is re ported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time."9. In the above case, the Court held that the aforesaid provision had retrospective effect and applied to buildings constructed prior to the date on which the said Act came into force provided they satisfied the conditions mentioned therein.10. The above provision appears as part of section 2 of the U.P. Act referred to above which exempted many existing and future buildings which satisfied the conditions refer red to in clauses (a) to (f) of sub-section (1), sub-section (2) and sub-section (3) thereof. The said exemption was given by the statute itself. It may be stated here that at the instance of one of the parties to the Special Leave Petition (Civil) No. 3573 of 1979 (Suresh Chand v. Gulam Chisti) which was disposed of by the same judgment, a review of the above judgment has been granted and by an order made on October 7, 1983 the case is directed to be reheard. Moreover on the construct ion of the above provision, there are two earlier decisions-one in Ratan Lal Shinghal v. Smt. Murti Devi(1) decided on August 21, 1979 in which it is held that the said provision has no retrospective effect but is only prospective in operation and another in Shri Ram Saroop Rai v. Smt. Lilavati(2) decided on May 7, 1980 in which a contrary view is taken. Section 2 of the said U.P. Act requires to be considered in the setting in which it appears. We are of the view that any decision on that provision has to be confined to that provision and cannot be extended to the present case by analogy.There is one other distinction which is sought to be made between an exemption granted by a notification which is issued by a delegate of the Legislature who is not given power by the Legislature to issue a notification having retrospective effect and an exemption granted by the Legislature itself on the basis of the observations made in Strawboard Manufacturing Co. Ltd. v. Gupta Mill Workers Union, Dr. Indramani Pyarelal Gupta v. W. R. Nathu &Ors. and Income-tax Officer, Alleppey v. M.C. Ponnoose &Ors.11. It is not necessary to deal with the above point any further since we are of the view that the notification impugned in these cases stands by itself and it is not to be construed in the background of the provisions of section 2 of the U.P. Act referred to above.12. On a careful consideration of the question we feel that the benefit of the notification cannot be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by section 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973.13
### Response:
1
### Explanation:
3 of the Act by the Chief Commissioner who is only a delegate of the Legislature. It is to be noted that there is no dispute that as soon as the A ct came into force on November 4, 1972 all the buildings which had been constructed prior to that date came within the scope of the Act. The Act also applied to all the buildings which were constructed thereafter and before January 31, 1973 on which date the notification was issued. The point for consideration is whether on the issue of the notification on January 31, 1973 any such building to which the Act already applied was taken out of the operation of the Act. A reading of the notification does not clearly indicate that the Chief Commissioner intended to grant exemption in respect of any of the buildings constructed prior to January 31, 1973. While the words buildings constructed in the urban area of Chandigarh for a period of five years with effect from the date the sewerage connection is granted which are found in the notification refer to all the buildings to which sewerage connection is granted after the date of the notification, they do not necessarily mean and include buildings which had been given sewerage connection within five years prior to that date. There was also no compelling reason for giving exemption to buildings which had already been constructed as the object of issuing the notification as mentioned earlier was only to encourage construction of new buildings thereafter and not to take away the statutory protection already extended to the tenants of buildings which had come into existence prior to January 31, 1973. The landlords of these buildings have, however, relied upon the decision of this Court in Om Prakash Gupta v. Dig Vajendrapal Gupta(1) in support of their contention. In that case, the Court had to construe the provisions of sub- section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), the relevant part of which readas provided in sub-section (5) of section 12, sub-section (1-A) of sect ion 21, sub-section (2) of section 24, sections 24-A, 24-B, 24-C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction isxxx xxxExplanation 1.-For the purposes of this sub-section, - (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is re ported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the firstthe above case, the Court held that the aforesaid provision had retrospective effect and applied to buildings constructed prior to the date on which the said Act came into force provided they satisfied the conditions mentionedabove provision appears as part of section 2 of the U.P. Act referred to above which exempted many existing and future buildings which satisfied the conditions refer red to in clauses (a) to (f) of sub-section (1), sub-section (2) and sub-section (3) thereof. The said exemption was given by the statute itself. It may be stated here that at the instance of one of the parties to the Special Leave Petition (Civil) No. 3573 of 1979 (Suresh Chand v. Gulam Chisti) which was disposed of by the same judgment, a review of the above judgment has been granted and by an order made on October 7, 1983 the case is directed to be reheard. Moreover on the construct ion of the above provision, there are two earlier decisions-one in Ratan Lal Shinghal v. Smt. Murti Devi(1) decided on August 21, 1979 in which it is held that the said provision has no retrospective effect but is only prospective in operation and another in Shri Ram Saroop Rai v. Smt. Lilavati(2) decided on May 7, 1980 in which a contrary view is taken. Section 2 of the said U.P. Act requires to be considered in the setting in which it appears. We are of the view that any decision on that provision has to be confined to that provision and cannot be extended to the present case by analogy.There is one other distinction which is sought to be made between an exemption granted by a notification which is issued by a delegate of the Legislature who is not given power by the Legislature to issue a notification having retrospective effect and an exemption granted by the Legislature itself on the basis of the observations made in Strawboard Manufacturing Co. Ltd. v. Gupta Mill Workers Union, Dr. Indramani Pyarelal Gupta v. W. R. Nathu &Ors. and Income-tax Officer, Alleppey v. M.C. Ponnooseis not necessary to deal with the above point any further since we are of the view that the notification impugned in these cases stands by itself and it is not to be construed in the background of the provisions of section 2 of the U.P. Act referred toa careful consideration of the question we feel that the benefit of the notification cannot be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by section 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973.
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UNION OF INDIA Vs. SHANKAR PRASAD DEEP ETC.ETC | persons who have been actually engaged by the Railway Administration from amongst the group of oustees; and (vi) The grounds on which those who could not be accommodated were rejected. This Court shall also be apprised of how many of the remaining persons meet the minimum qualifications and job description (other than the age requirement) as stipulated in the advertisement dated 31 July 1998 (Annexure P-4). This exercise shall be carried out and an additional affidavit shall be filed before the next date of hearing with an advance copy to the learned counsel appearing for the contesting parties. 13. In pursuance of the above directions, an additional affidavit has been filed by the appellants, through the Senior Divisional Personnel Officer, East Coast Railway, Sambalpur Division, Odisha. 14. The affidavit contains the following tabulated statement: table 15. It has been stated that as of date, 82 posts remain unfilled. It has been stated in the affidavit that the finding of the Tribunal and the High Court that 508 out of 511 vacancies were filled in by outsiders (persons other than land oustees) is an apparent error, since 429 posts were filled in and 82 posts were kept vacant. Out of these 429 posts, 76 posts were offered to persons from the land oustees category of whom 66 joined service; 7 did not report and were declared medically unfit. It has been stated that compensation of Rs 12.11 crores has been paid to the families of the land oustees. 16. The dispute in the present case arose from a process of selection commenced on 31 July 1998 through an employment notice of the then South Eastern Railway for recruitment of Gangmen in Group D posts in the Engineering Department of the Sambalpur Division. The advertisement stipulated that the candidates should have passed the 8 th standard besides which age requirements were set out. The advertisement stipulated that the selection procedure would be decided by the Additional Divisional Railway Manager (ADRM). 17. Thereafter, on 5 February 1999, an employment notice was issued by the Divisional Railway Manager, Sambalpur in terms of the earlier notice so as to permit the land oustees of the Sambalpur-Talcher Rail Link Project to apply directly against the notification dated 31 July 1998, if they were otherwise eligible. However, all the terms and conditions published in the earlier notification remained unchanged. 18. The policy of the Railway Board envisages that appointments are to be made only on the fulfillment of the conditions specified in the instructions (Clause 1 of the letter dated 8 December 1989). Moreover, the instructions stipulate that the dispensation to give preferential treatment to land oustees in employment is to be limited to recruitments made from outside in direct recruitment categories, subject to the terms and conditions stipulated. The instructions also stipulate that candidates must fulfill the qualifications for the post and should be found suitable by the appropriate recruitment committees. 19. In view of the terms and conditions, stipulated in the relevant instructions and circulars which have been noted earlier, it is not possible to accede to the view of the Tribunal that the land oustees are not required to undergo the process of selection. Though the instructions provided for the grant of preferential treatment, this is subject to the fulfillment of all other terms and conditions, stipulated in the instructions. While laying down a policy for preferential treatment, the Union Government was entitled to stipulate the conditions subject to which a claim for appointment in Group C and Group D posts for the land oustees could be considered. The Tribunal exceeded the limits of its adjudicatory authority by virtually substituting its own directions for the policy which was formulated by the Union Government. Such an exercise, by its very nature, is impermissible. The terms on which a policy of offering employment to the land oustees should be framed is a matter to be decided by the Ministry of Railways. Once this exercise has been carried out, it was, in our view, neither appropriate nor proper for the Tribunal to trench upon that area. 20. From the facts, which have been disclosed on affidavit, in pursuance of the previous order dated 14 February 2019, it emerges that out of 9,036 families which were covered by the Sambalpur-Talcher Rail Link Project, 2,805 persons had applied for employment. 652 persons were shortlisted, out of whom 553 persons appeared for the written test. 110 persons cleared the written test, out of whom 76 were offered employment. 66 persons joined service. 21. We were concerned about the reasons which weighed in the rejection of 2,153 land oustees – applicants, who were not shortlisted. The tabulated statement, which has been extracted earlier, indicates the grounds for rejection, which are as follows: (i) 1,831 persons had not enclosed land acquisition certificates; (ii) 215 persons had furnished insufficient proof of being land losers in the land acquisition; (iii) 40 persons did not have the minimum qualifications; (iv) 31 persons had submitted incomplete applications; (v) 14 persons were over-aged; (vi) 13 persons were reported under-age; (vii) 7 persons had not attested their photographs; and (viii) 2 persons had not submitted caste certificates. 22. We are of the view that it would be extremely technical to reject the applications without a sufficient opportunity to the land oustees to comply with the terms and conditions, including the submission of proof of being land oustees. As a matter of fact, the policy which has been formulated by the Ministry of Railways contemplates that as land acquisition is done through the civil authorities, the village sarpanch or tehsildar should be associated with the verification of the claim of the oustees. Placing the entire burden on the land oustees would result in a deprivation of the benefit of the policy. Having laid down a salutary policy, it is necessary, in our view, that the Ministry of Railways must coordinate its activities with the local administration so as to ensure due verification of the claims made by the applicants. | 0[ds]11. During the course of the hearing, Mr. A.N.S. Nadkarni, learned Additional Solicitor General of India, assailed the judgments of the Tribunal and of the High Court on the ground that the figures which had been reflected in these judgments were erroneous18. The policy of the Railway Board envisages that appointments are to be made only on the fulfillment of the conditions specified in the instructions (Clause 1 of the letter dated 8 December 1989). Moreover, the instructions stipulate that the dispensation to give preferential treatment to land oustees in employment is to be limited to recruitments made from outside in direct recruitment categories, subject to the terms and conditions stipulated. The instructions also stipulate that candidates must fulfill the qualifications for the post and should be found suitable by the appropriate recruitment committees19. In view of the terms and conditions, stipulated in the relevant instructions and circulars which have been noted earlier, it is not possible to accede to the view of the Tribunal that the land oustees are not required to undergo the process of selection. Though the instructions provided for the grant of preferential treatment, this is subject to the fulfillment of all other terms and conditions, stipulated in the instructions. While laying down a policy for preferential treatment, the Union Government was entitled to stipulate the conditions subject to which a claim for appointment in Group C and Group D posts for the land oustees could be considered. The Tribunal exceeded the limits of its adjudicatory authority by virtually substituting its own directions for the policy which was formulated by the Union Government. Such an exercise, by its very nature, is impermissible. The terms on which a policy of offering employment to the land oustees should be framed is a matter to be decided by the Ministry of Railways. Once this exercise has been carried out, it was, in our view, neither appropriate nor proper for the Tribunal to trench upon that area20. From the facts, which have been disclosed on affidavit, in pursuance of the previous order dated 14 February 2019, it emerges that out of 9,036 families which were covered by the Sambalpur-Talcher Rail Link Project, 2,805 persons had applied for employment. 652 persons were shortlisted, out of whom 553 persons appeared for the written test. 110 persons cleared the written test, out of whom 76 were offered employment. 66 persons joined service22. We are of the view that it would be extremely technical to reject the applications without a sufficient opportunity to the land oustees to comply with the terms and conditions, including the submission of proof of being land oustees. As a matter of fact, the policy which has been formulated by the Ministry of Railways contemplates that as land acquisition is done through the civil authorities, the village sarpanch or tehsildar should be associated with the verification of the claim of the oustees. Placing the entire burden on the land oustees would result in a deprivation of the benefit of the policy. Having laid down a salutary policy, it is necessary, in our view, that the Ministry of Railways must coordinate its activities with the local administration so as to ensure due verification of the claims made by the applicants. | 0 | 2,214 | 593 | ### 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:
persons who have been actually engaged by the Railway Administration from amongst the group of oustees; and (vi) The grounds on which those who could not be accommodated were rejected. This Court shall also be apprised of how many of the remaining persons meet the minimum qualifications and job description (other than the age requirement) as stipulated in the advertisement dated 31 July 1998 (Annexure P-4). This exercise shall be carried out and an additional affidavit shall be filed before the next date of hearing with an advance copy to the learned counsel appearing for the contesting parties. 13. In pursuance of the above directions, an additional affidavit has been filed by the appellants, through the Senior Divisional Personnel Officer, East Coast Railway, Sambalpur Division, Odisha. 14. The affidavit contains the following tabulated statement: table 15. It has been stated that as of date, 82 posts remain unfilled. It has been stated in the affidavit that the finding of the Tribunal and the High Court that 508 out of 511 vacancies were filled in by outsiders (persons other than land oustees) is an apparent error, since 429 posts were filled in and 82 posts were kept vacant. Out of these 429 posts, 76 posts were offered to persons from the land oustees category of whom 66 joined service; 7 did not report and were declared medically unfit. It has been stated that compensation of Rs 12.11 crores has been paid to the families of the land oustees. 16. The dispute in the present case arose from a process of selection commenced on 31 July 1998 through an employment notice of the then South Eastern Railway for recruitment of Gangmen in Group D posts in the Engineering Department of the Sambalpur Division. The advertisement stipulated that the candidates should have passed the 8 th standard besides which age requirements were set out. The advertisement stipulated that the selection procedure would be decided by the Additional Divisional Railway Manager (ADRM). 17. Thereafter, on 5 February 1999, an employment notice was issued by the Divisional Railway Manager, Sambalpur in terms of the earlier notice so as to permit the land oustees of the Sambalpur-Talcher Rail Link Project to apply directly against the notification dated 31 July 1998, if they were otherwise eligible. However, all the terms and conditions published in the earlier notification remained unchanged. 18. The policy of the Railway Board envisages that appointments are to be made only on the fulfillment of the conditions specified in the instructions (Clause 1 of the letter dated 8 December 1989). Moreover, the instructions stipulate that the dispensation to give preferential treatment to land oustees in employment is to be limited to recruitments made from outside in direct recruitment categories, subject to the terms and conditions stipulated. The instructions also stipulate that candidates must fulfill the qualifications for the post and should be found suitable by the appropriate recruitment committees. 19. In view of the terms and conditions, stipulated in the relevant instructions and circulars which have been noted earlier, it is not possible to accede to the view of the Tribunal that the land oustees are not required to undergo the process of selection. Though the instructions provided for the grant of preferential treatment, this is subject to the fulfillment of all other terms and conditions, stipulated in the instructions. While laying down a policy for preferential treatment, the Union Government was entitled to stipulate the conditions subject to which a claim for appointment in Group C and Group D posts for the land oustees could be considered. The Tribunal exceeded the limits of its adjudicatory authority by virtually substituting its own directions for the policy which was formulated by the Union Government. Such an exercise, by its very nature, is impermissible. The terms on which a policy of offering employment to the land oustees should be framed is a matter to be decided by the Ministry of Railways. Once this exercise has been carried out, it was, in our view, neither appropriate nor proper for the Tribunal to trench upon that area. 20. From the facts, which have been disclosed on affidavit, in pursuance of the previous order dated 14 February 2019, it emerges that out of 9,036 families which were covered by the Sambalpur-Talcher Rail Link Project, 2,805 persons had applied for employment. 652 persons were shortlisted, out of whom 553 persons appeared for the written test. 110 persons cleared the written test, out of whom 76 were offered employment. 66 persons joined service. 21. We were concerned about the reasons which weighed in the rejection of 2,153 land oustees – applicants, who were not shortlisted. The tabulated statement, which has been extracted earlier, indicates the grounds for rejection, which are as follows: (i) 1,831 persons had not enclosed land acquisition certificates; (ii) 215 persons had furnished insufficient proof of being land losers in the land acquisition; (iii) 40 persons did not have the minimum qualifications; (iv) 31 persons had submitted incomplete applications; (v) 14 persons were over-aged; (vi) 13 persons were reported under-age; (vii) 7 persons had not attested their photographs; and (viii) 2 persons had not submitted caste certificates. 22. We are of the view that it would be extremely technical to reject the applications without a sufficient opportunity to the land oustees to comply with the terms and conditions, including the submission of proof of being land oustees. As a matter of fact, the policy which has been formulated by the Ministry of Railways contemplates that as land acquisition is done through the civil authorities, the village sarpanch or tehsildar should be associated with the verification of the claim of the oustees. Placing the entire burden on the land oustees would result in a deprivation of the benefit of the policy. Having laid down a salutary policy, it is necessary, in our view, that the Ministry of Railways must coordinate its activities with the local administration so as to ensure due verification of the claims made by the applicants.
### Response:
0
### Explanation:
11. During the course of the hearing, Mr. A.N.S. Nadkarni, learned Additional Solicitor General of India, assailed the judgments of the Tribunal and of the High Court on the ground that the figures which had been reflected in these judgments were erroneous18. The policy of the Railway Board envisages that appointments are to be made only on the fulfillment of the conditions specified in the instructions (Clause 1 of the letter dated 8 December 1989). Moreover, the instructions stipulate that the dispensation to give preferential treatment to land oustees in employment is to be limited to recruitments made from outside in direct recruitment categories, subject to the terms and conditions stipulated. The instructions also stipulate that candidates must fulfill the qualifications for the post and should be found suitable by the appropriate recruitment committees19. In view of the terms and conditions, stipulated in the relevant instructions and circulars which have been noted earlier, it is not possible to accede to the view of the Tribunal that the land oustees are not required to undergo the process of selection. Though the instructions provided for the grant of preferential treatment, this is subject to the fulfillment of all other terms and conditions, stipulated in the instructions. While laying down a policy for preferential treatment, the Union Government was entitled to stipulate the conditions subject to which a claim for appointment in Group C and Group D posts for the land oustees could be considered. The Tribunal exceeded the limits of its adjudicatory authority by virtually substituting its own directions for the policy which was formulated by the Union Government. Such an exercise, by its very nature, is impermissible. The terms on which a policy of offering employment to the land oustees should be framed is a matter to be decided by the Ministry of Railways. Once this exercise has been carried out, it was, in our view, neither appropriate nor proper for the Tribunal to trench upon that area20. From the facts, which have been disclosed on affidavit, in pursuance of the previous order dated 14 February 2019, it emerges that out of 9,036 families which were covered by the Sambalpur-Talcher Rail Link Project, 2,805 persons had applied for employment. 652 persons were shortlisted, out of whom 553 persons appeared for the written test. 110 persons cleared the written test, out of whom 76 were offered employment. 66 persons joined service22. We are of the view that it would be extremely technical to reject the applications without a sufficient opportunity to the land oustees to comply with the terms and conditions, including the submission of proof of being land oustees. As a matter of fact, the policy which has been formulated by the Ministry of Railways contemplates that as land acquisition is done through the civil authorities, the village sarpanch or tehsildar should be associated with the verification of the claim of the oustees. Placing the entire burden on the land oustees would result in a deprivation of the benefit of the policy. Having laid down a salutary policy, it is necessary, in our view, that the Ministry of Railways must coordinate its activities with the local administration so as to ensure due verification of the claims made by the applicants.
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Raghubar Mandal Harihar Mandal Vs. The State Of Bihar | Income Tax, 1937-5 ITR 464: (AIR 1937 Lah 721) (C). It was held therein that where the income-tax authorities were not satisfied with the correctness or completeness of the assessees account and, taking into consideration the state of affairs in general, and the fact that the assessee had a large business and the profit shown by them was abnormally low in comparison with that of other persons carrying on the same business in the locality, calculated the taxable income by applying a flat rate 7 per cent., the authorities were justified in applying such a flat rate and the burden was on the assessee to displace the estimate. There again, the estimate made was not a pure guess and was based on some materials which the Income-tax Officer had before him, Din Mohammad, J. who gave the leading judgment, observed: "It cannot be denied that there must be some material before the Income-tax Officer on which to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is required on which his estimate can be founded." With that observation we generally agree. If, in this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High Court and which arose out of the orders of assessment, was whether it was open to the said authorities to make an assessment on a figure of gross turnover, without referring to any materials to justify the adoption of that figure. In answering that question in the Affirmative, the High Court has given a carte blanche to the sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.8. The next decision is Gunda Subbayya v. Commissioner of Income-Tax, Madras, 1939-7 I T R 21: (AIR 1939 Mad 371 ) (SB) (D). This decision also does not help the respondent. It was held in that decision that though there is nothing in the Indian Income-tax Act which imposes a duty on an Income-tax Officer, who makes an assessment under S. 23 (3), to disclose to the assessee the material on which he proposes to act, natural justice requires that he should draw the assessees attention to it and give him an opportunity to show that the officers information is wrong and he should also indicate in his order the material on which he has made his estimate. This decision is really against the respondent and does not lay down any rule which may be said to be inconsistent with the observations made by this Court in 1955-1 S C R 941: (S) AIR 1955 S C 65) (A).9. The decision of the Lahore High Court in Gurumukh Singh v. Commissioner of Income-tax, Lahore, 1944-12 I T R 393; (A I R 1944 Lah 353 (2) (FB) (E) was specifically approved by this Court in 1955-1 S C R 941: (S) A I R 1955 S C 65) (A). The rules laid down in that decision were these; (1) While proceeding under sub-S. (3) of S. 23 of the Income-tax Act, the Income Tax Officer is not bound to rely on such evidence produced by the evidence as he considers to be false; (2) if he proposes to make an estimate in disregard of the evidence oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate. (3) He is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and (4) in case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the cases he is expected to meet and should further, give ample opportunity to meet it, if possible, The decision does not lay down that it is open to the Income-tax Officer to make an estimate on pure guess and without reference to any material or evidence before him.10. The last decision to which we have been referred is the decision in Damsaz Khan v. Commissioner of Income-tax, Punjab and NWFP, 1947-15 ITR 446: (A I R 1947 P C 176) (F). That again is a decision of the Privy Council. In that case, the validity of the assessment under S. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount of assessment. Their Lordships observed:"But it appears to them that it as clearly competent for the Income-tax Officer in the circumstances of the present case to accept the return as a valid return and proceed to assessment under Section 23 (1) form Section 23 (3) as the case might be. Since he was not satisfied that the return was correct and complete he could not proceed under Section 23 (1): he, therefore, as appeared upon the face of the assessment, proceed under S. 23(3). Neither in the incompleteness of the return nor in the fact that in an accompanying statements the appellant referred to his return as an estimate can their Lordships find any possible justification for the plea that the assessment was incompetent or that the Appellate Assistant Commissioner had no jurisdiction to entertain the proceedings which the appellant herself initiated."These observations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in 1944-12 I T R 393: (A I R 1944 Lah 353 (2) (E).11. For these reasons we hold that the High Court was in error in answering the question referred to it. | 1[ds]In our view, the approach of the High Court to the question referred to it was erroneous and the answer given to the question by it solely on the basis of sub-s. (4) of S. 10 of the Act was vitiated by that wrong approach. It was not sub-s. (4) of S. 10 of the Act which the High Court had to consider; it had to consider the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.All these we must accept as correct. Having rejected the returns and the books of account, the assessing authorities proceeded to estimate the grossso estimating the gross turnover, they did not refer to any materials at all. On the contrary, they indulged in a pure guess and adopted a figure without reference to any evidence or any material at all. Let us take, for example, the assessment order for the quarter ending 30th Junein this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High Court and which arose out of the orders of assessment, was whether it was open to the said authorities to make an assessment on a figure of gross turnover, without referring to any materials to justify the adoption of that figure. In answering that question in the Affirmative, the High Court has given a carte blanche to the sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.The last decision to which we have been referred is the decision in Damsaz Khan v. Commissioner of Income-tax, Punjab and NWFP, 1947-15 ITR 446: (A I R 1947 P C 176) (F). That again is a decision of the Privy Council. In that case, the validity of the assessment under S. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount ofobservations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in 1944-12 I T R 393: (A I R 1944 Lah 353 (2) (E).11. For these reasons we hold that the High Court was in error in answering the question referred to it. | 1 | 4,880 | 462 | ### 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:
Income Tax, 1937-5 ITR 464: (AIR 1937 Lah 721) (C). It was held therein that where the income-tax authorities were not satisfied with the correctness or completeness of the assessees account and, taking into consideration the state of affairs in general, and the fact that the assessee had a large business and the profit shown by them was abnormally low in comparison with that of other persons carrying on the same business in the locality, calculated the taxable income by applying a flat rate 7 per cent., the authorities were justified in applying such a flat rate and the burden was on the assessee to displace the estimate. There again, the estimate made was not a pure guess and was based on some materials which the Income-tax Officer had before him, Din Mohammad, J. who gave the leading judgment, observed: "It cannot be denied that there must be some material before the Income-tax Officer on which to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is required on which his estimate can be founded." With that observation we generally agree. If, in this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High Court and which arose out of the orders of assessment, was whether it was open to the said authorities to make an assessment on a figure of gross turnover, without referring to any materials to justify the adoption of that figure. In answering that question in the Affirmative, the High Court has given a carte blanche to the sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.8. The next decision is Gunda Subbayya v. Commissioner of Income-Tax, Madras, 1939-7 I T R 21: (AIR 1939 Mad 371 ) (SB) (D). This decision also does not help the respondent. It was held in that decision that though there is nothing in the Indian Income-tax Act which imposes a duty on an Income-tax Officer, who makes an assessment under S. 23 (3), to disclose to the assessee the material on which he proposes to act, natural justice requires that he should draw the assessees attention to it and give him an opportunity to show that the officers information is wrong and he should also indicate in his order the material on which he has made his estimate. This decision is really against the respondent and does not lay down any rule which may be said to be inconsistent with the observations made by this Court in 1955-1 S C R 941: (S) AIR 1955 S C 65) (A).9. The decision of the Lahore High Court in Gurumukh Singh v. Commissioner of Income-tax, Lahore, 1944-12 I T R 393; (A I R 1944 Lah 353 (2) (FB) (E) was specifically approved by this Court in 1955-1 S C R 941: (S) A I R 1955 S C 65) (A). The rules laid down in that decision were these; (1) While proceeding under sub-S. (3) of S. 23 of the Income-tax Act, the Income Tax Officer is not bound to rely on such evidence produced by the evidence as he considers to be false; (2) if he proposes to make an estimate in disregard of the evidence oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate. (3) He is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and (4) in case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the cases he is expected to meet and should further, give ample opportunity to meet it, if possible, The decision does not lay down that it is open to the Income-tax Officer to make an estimate on pure guess and without reference to any material or evidence before him.10. The last decision to which we have been referred is the decision in Damsaz Khan v. Commissioner of Income-tax, Punjab and NWFP, 1947-15 ITR 446: (A I R 1947 P C 176) (F). That again is a decision of the Privy Council. In that case, the validity of the assessment under S. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount of assessment. Their Lordships observed:"But it appears to them that it as clearly competent for the Income-tax Officer in the circumstances of the present case to accept the return as a valid return and proceed to assessment under Section 23 (1) form Section 23 (3) as the case might be. Since he was not satisfied that the return was correct and complete he could not proceed under Section 23 (1): he, therefore, as appeared upon the face of the assessment, proceed under S. 23(3). Neither in the incompleteness of the return nor in the fact that in an accompanying statements the appellant referred to his return as an estimate can their Lordships find any possible justification for the plea that the assessment was incompetent or that the Appellate Assistant Commissioner had no jurisdiction to entertain the proceedings which the appellant herself initiated."These observations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in 1944-12 I T R 393: (A I R 1944 Lah 353 (2) (E).11. For these reasons we hold that the High Court was in error in answering the question referred to it.
### Response:
1
### Explanation:
In our view, the approach of the High Court to the question referred to it was erroneous and the answer given to the question by it solely on the basis of sub-s. (4) of S. 10 of the Act was vitiated by that wrong approach. It was not sub-s. (4) of S. 10 of the Act which the High Court had to consider; it had to consider the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.All these we must accept as correct. Having rejected the returns and the books of account, the assessing authorities proceeded to estimate the grossso estimating the gross turnover, they did not refer to any materials at all. On the contrary, they indulged in a pure guess and adopted a figure without reference to any evidence or any material at all. Let us take, for example, the assessment order for the quarter ending 30th Junein this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High Court and which arose out of the orders of assessment, was whether it was open to the said authorities to make an assessment on a figure of gross turnover, without referring to any materials to justify the adoption of that figure. In answering that question in the Affirmative, the High Court has given a carte blanche to the sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of S. 10 of the Act.The last decision to which we have been referred is the decision in Damsaz Khan v. Commissioner of Income-tax, Punjab and NWFP, 1947-15 ITR 446: (A I R 1947 P C 176) (F). That again is a decision of the Privy Council. In that case, the validity of the assessment under S. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount ofobservations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in 1944-12 I T R 393: (A I R 1944 Lah 353 (2) (E).11. For these reasons we hold that the High Court was in error in answering the question referred to it.
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JUMANI BEGUM Vs. RAM NARAYAN | Taking the monthly income of the deceased at Rs 12,636, one-third was deducted towards personal expenses. Applying a multiplier of 11, the deceased being 53 years of age, the total amount payable was computed at Rs 11,12,000 on account of loss of dependency. A lump sum of Rs 1,25,000 was awarded by the High Court towards conventional head. Since the High Court had affirmed the view of the MACT on contributory negligence, the total compensation was enhanced from Rs 3,81,988 to Rs 6,81,000. 6. In pursuance of the notice that was issued by this Court on 22 January 2019, the office report indicates that service is complete. 7. Learned counsel appearing on behalf of the appellant has assailed the view which has found acceptance with the High Court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect, learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck trailer was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of the independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The High Court, it has been submitted, simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of the compensation, learned counsel submitted that in terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi ( (2007) 16 SCC 680) , the High Court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he was in government employment. 8. On the aspect of contributory negligence, the MACT adverted to the statement of AW 2, who was an independent eye-witness at the spot of the accident, in the following terms: As per an eye witness to the accident, on behalf of the applicant, the statement of AW-2 Mohd. Rafiq Qureshi has been got recorded. According to this witness, at the time of accident he was going from his house situated in Dharsiva to the Dhaba situated at about 2-2.5 kms away from Dharsivan to eat food on the Bilaspur road and when he had reached near Sagar Family Restaurant and Dhaba then suddenly from the side of Bilaspur, Mirza Jumman Beg who was coming on his hero Honda motorcycle from the side of Bilaspur has come and collided on the backside of the truck parked on the road on the left side which truck was of 16 tyres and he had fallen with the Hero Honda motorcycle. This witness has further stated that after eating the food in the Dhaba when he was returning back, he came to know that Mirza jumman Beg has expired. In cross- examination this witness has stated that the truck trailer was parked facing Raipur i.e. its rear was facing Bilaspur. In cross, this witness has denied that there was a radium reflector on the rear side of the truck trailer. This witness has not been given the suggestion in the cross-examination that the indicator of the truck trailer was lit. In cross examination this witness has denied that any bush etc. had been put on the side of the Truck Trailer as indication mark. 9. The MACT then discussed the evidence of the driver of the truck trailer, NAW 1. After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted. 10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above. | 1[ds]After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above. | 1 | 1,424 | 444 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Taking the monthly income of the deceased at Rs 12,636, one-third was deducted towards personal expenses. Applying a multiplier of 11, the deceased being 53 years of age, the total amount payable was computed at Rs 11,12,000 on account of loss of dependency. A lump sum of Rs 1,25,000 was awarded by the High Court towards conventional head. Since the High Court had affirmed the view of the MACT on contributory negligence, the total compensation was enhanced from Rs 3,81,988 to Rs 6,81,000. 6. In pursuance of the notice that was issued by this Court on 22 January 2019, the office report indicates that service is complete. 7. Learned counsel appearing on behalf of the appellant has assailed the view which has found acceptance with the High Court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect, learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck trailer was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of the independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The High Court, it has been submitted, simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of the compensation, learned counsel submitted that in terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi ( (2007) 16 SCC 680) , the High Court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he was in government employment. 8. On the aspect of contributory negligence, the MACT adverted to the statement of AW 2, who was an independent eye-witness at the spot of the accident, in the following terms: As per an eye witness to the accident, on behalf of the applicant, the statement of AW-2 Mohd. Rafiq Qureshi has been got recorded. According to this witness, at the time of accident he was going from his house situated in Dharsiva to the Dhaba situated at about 2-2.5 kms away from Dharsivan to eat food on the Bilaspur road and when he had reached near Sagar Family Restaurant and Dhaba then suddenly from the side of Bilaspur, Mirza Jumman Beg who was coming on his hero Honda motorcycle from the side of Bilaspur has come and collided on the backside of the truck parked on the road on the left side which truck was of 16 tyres and he had fallen with the Hero Honda motorcycle. This witness has further stated that after eating the food in the Dhaba when he was returning back, he came to know that Mirza jumman Beg has expired. In cross- examination this witness has stated that the truck trailer was parked facing Raipur i.e. its rear was facing Bilaspur. In cross, this witness has denied that there was a radium reflector on the rear side of the truck trailer. This witness has not been given the suggestion in the cross-examination that the indicator of the truck trailer was lit. In cross examination this witness has denied that any bush etc. had been put on the side of the Truck Trailer as indication mark. 9. The MACT then discussed the evidence of the driver of the truck trailer, NAW 1. After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted. 10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above.
### Response:
1
### Explanation:
After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above.
|
URMILA DEVI Vs. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. | the judgment in the case of Bhadurmal vs. Bizaatunnisa Begum AIR 1964 AP 365 wherein an issue with regard to maintainability of cross-objection in an appeal preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was considered. It also relied on the judgment in the case of Inayatullah Khan vs. Diwanchand Mahajan AIR 1959 MP 58 , wherein maintainability of cross objection in an election appeal under Section 116A of the Representation of the People Act, 1951 was upheld. It further relied on the judgment of the Calcutta High Court in the case of Ramasray Singh & Ors. vs. Bibhisan Sinha AIR 1950 Cal 372, upholding the right of the respondent to file cross-objection in an appeal contemplated under Section 38 of Bengal Money-Lenders Act, 1940. 20. It further relied on certain observations of this Court in the case of Baru Ram vs. Prasanni AIR 1959 SC 93 : 1959 SCR 1403 This Court did not agree with the contrary view taken by the learned two-judge Bench of this Court in the case of Superintending Engineer & Ors. vs. B. Subba Reddy (1999) 4 SCC 423 . However, holding so, this Court held that since the right to appeal under Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i) to (vi) of sub-section (1) thereof, the cross-objection also must conform to the said requirement. In other words, it was held that a cross-objection would be maintainable only if the subject-matter thereof falls in any of the category carved out under clauses (i) to (vi) of sub-section (1) of Section 39 of the Arbitration Act, 1940. 21. This Court further found that the entire Order XLI rule 22 CPC would apply to a cross-objection including the provisions of sub-rule (4) thereof. It was held, that if the original appeal is found to be incompetent or not maintainable if it is filed against an order not falling under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then the cross objection shall also fail on that ground and cannot be adjudicated upon on merits. It could, thus, be seen that the view taken by the Court is that the cross- objection would be tenable only if appeal is validly tenable. 22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation. 23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act. 24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal. 25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC. 26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits. 27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law. | 1[ds]22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law. | 1 | 5,087 | 694 | ### 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:
the judgment in the case of Bhadurmal vs. Bizaatunnisa Begum AIR 1964 AP 365 wherein an issue with regard to maintainability of cross-objection in an appeal preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was considered. It also relied on the judgment in the case of Inayatullah Khan vs. Diwanchand Mahajan AIR 1959 MP 58 , wherein maintainability of cross objection in an election appeal under Section 116A of the Representation of the People Act, 1951 was upheld. It further relied on the judgment of the Calcutta High Court in the case of Ramasray Singh & Ors. vs. Bibhisan Sinha AIR 1950 Cal 372, upholding the right of the respondent to file cross-objection in an appeal contemplated under Section 38 of Bengal Money-Lenders Act, 1940. 20. It further relied on certain observations of this Court in the case of Baru Ram vs. Prasanni AIR 1959 SC 93 : 1959 SCR 1403 This Court did not agree with the contrary view taken by the learned two-judge Bench of this Court in the case of Superintending Engineer & Ors. vs. B. Subba Reddy (1999) 4 SCC 423 . However, holding so, this Court held that since the right to appeal under Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i) to (vi) of sub-section (1) thereof, the cross-objection also must conform to the said requirement. In other words, it was held that a cross-objection would be maintainable only if the subject-matter thereof falls in any of the category carved out under clauses (i) to (vi) of sub-section (1) of Section 39 of the Arbitration Act, 1940. 21. This Court further found that the entire Order XLI rule 22 CPC would apply to a cross-objection including the provisions of sub-rule (4) thereof. It was held, that if the original appeal is found to be incompetent or not maintainable if it is filed against an order not falling under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then the cross objection shall also fail on that ground and cannot be adjudicated upon on merits. It could, thus, be seen that the view taken by the Court is that the cross- objection would be tenable only if appeal is validly tenable. 22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation. 23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act. 24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal. 25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC. 26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits. 27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.
### Response:
1
### Explanation:
22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.
|
State (Delhi Administration) Vs. Vishwa Bandhu Alias Billa and Another | of 14 feet while PW 7 saw it from a distance of 29 feet. Mohinder Nath (PW 5) was standing near the gents lavatory opposite to the scene of occurrence at a distance of 65 feet. PW 5 stated that he heard Ram Kishan calling his companion by name Billa and further saw Vishwa Bandhu stabbing Mool Chand in the abdomen on the right side and Ram Kishan stabbing Mool Chand in the middle lower portion of the chest. PW 5 further stated that PW 7 and PW 4 ran after the assailants but the assailants escaped inside the Narain Market. The High Court rejected the testimony of PW 5 on the ground that as the witness was standing at a distance of 65 feet from place where the deceased was stabbed and as there was traffic on the road when the occurrence took place, it was possible for the witness to have heard the name of Billa. The High Court also found that if Billa was accompanying Phokan at the time in the normal course he would have been looking towards Phokan and in that case the statement of the witness that Billa was standing with his face towards him cannot be believed. We find that the reasons for rejection of the evidence of PW 5 are totally unsustainable. The occurrence was in broad day-light at about 2 p.m. and we do not see any difficulty in the witness seeing the assailants at a distance of 65 feet even though there would have been traffic on the road. That Billa would have been looking towards Phokan and therefore the evidence of PW 5 that he was standing with his face towards him is unacceptable, is ignoring realities. It is most unlikely that either the assailants or the witness would have taken a definite position and were sticking to that throughout the incident. Billa would have been on the move and so also the witness and we see no difficulty in accepting the testimony of PW 5 that he saw Billa. Equally unconvincing is the reason given by the High Court for rejecting the testimony of PW 7 Niranjan Singh (PW 7) has a laundry. While he was passing in the verandah of the star hotel at 2.30 p.m. he saw Mool Chand holding Ram Kishan by his arm. He also saw Ram Kishan holding a knife in his hand and at that time Ram Kishan known as Phokan tried to free himself and called Billa and whereupon Vishwa Bandhu stabbed Mool Chand with a knife in the abdomen and getting himself freed, Ram Kishan stabbed Mool Chand in the chest. PW 7 stated that he knew Ram Kishan as well as Vishwa Bandhu as they used to come to his laundry to get their clothes cleaned. In his statement to the police the witness had named Billa as Vishwa Bandhu alias Billa. The High Court found in its judgment that as PW 7 had said in his cross-examination that he did not know the name of Vishwa Bandhu before the occurrence, the statement alleged to have been recorded by the police, on June 8, 1971 would not have have been recorded on that date. From the statement of PW 7 in the Court that he did not know the name of Vishwa Bandhu before the occurrence i.e. on June 8, 1971, it cannot be inferred that the statement recorded by the police later in the day in which the witness had named Billa as Vishwa Bandhu alias Billa could not be recorded on that day. The rejection of the testimony of PW 7 on the ground mentioned by the High Court cannot be a accepted. 11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of other eye-witness would not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report. 12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the three eye-witness and accepting their testimony. 13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab. 14. Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment. | 1[ds]13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab.Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of othereyewitnesswould not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the threeeyewitnessand accepting their testimonyg into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous | 1 | 2,503 | 528 | ### Instruction:
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of 14 feet while PW 7 saw it from a distance of 29 feet. Mohinder Nath (PW 5) was standing near the gents lavatory opposite to the scene of occurrence at a distance of 65 feet. PW 5 stated that he heard Ram Kishan calling his companion by name Billa and further saw Vishwa Bandhu stabbing Mool Chand in the abdomen on the right side and Ram Kishan stabbing Mool Chand in the middle lower portion of the chest. PW 5 further stated that PW 7 and PW 4 ran after the assailants but the assailants escaped inside the Narain Market. The High Court rejected the testimony of PW 5 on the ground that as the witness was standing at a distance of 65 feet from place where the deceased was stabbed and as there was traffic on the road when the occurrence took place, it was possible for the witness to have heard the name of Billa. The High Court also found that if Billa was accompanying Phokan at the time in the normal course he would have been looking towards Phokan and in that case the statement of the witness that Billa was standing with his face towards him cannot be believed. We find that the reasons for rejection of the evidence of PW 5 are totally unsustainable. The occurrence was in broad day-light at about 2 p.m. and we do not see any difficulty in the witness seeing the assailants at a distance of 65 feet even though there would have been traffic on the road. That Billa would have been looking towards Phokan and therefore the evidence of PW 5 that he was standing with his face towards him is unacceptable, is ignoring realities. It is most unlikely that either the assailants or the witness would have taken a definite position and were sticking to that throughout the incident. Billa would have been on the move and so also the witness and we see no difficulty in accepting the testimony of PW 5 that he saw Billa. Equally unconvincing is the reason given by the High Court for rejecting the testimony of PW 7 Niranjan Singh (PW 7) has a laundry. While he was passing in the verandah of the star hotel at 2.30 p.m. he saw Mool Chand holding Ram Kishan by his arm. He also saw Ram Kishan holding a knife in his hand and at that time Ram Kishan known as Phokan tried to free himself and called Billa and whereupon Vishwa Bandhu stabbed Mool Chand with a knife in the abdomen and getting himself freed, Ram Kishan stabbed Mool Chand in the chest. PW 7 stated that he knew Ram Kishan as well as Vishwa Bandhu as they used to come to his laundry to get their clothes cleaned. In his statement to the police the witness had named Billa as Vishwa Bandhu alias Billa. The High Court found in its judgment that as PW 7 had said in his cross-examination that he did not know the name of Vishwa Bandhu before the occurrence, the statement alleged to have been recorded by the police, on June 8, 1971 would not have have been recorded on that date. From the statement of PW 7 in the Court that he did not know the name of Vishwa Bandhu before the occurrence i.e. on June 8, 1971, it cannot be inferred that the statement recorded by the police later in the day in which the witness had named Billa as Vishwa Bandhu alias Billa could not be recorded on that day. The rejection of the testimony of PW 7 on the ground mentioned by the High Court cannot be a accepted. 11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of other eye-witness would not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report. 12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the three eye-witness and accepting their testimony. 13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab. 14. Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment.
### Response:
1
### Explanation:
13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab.Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of othereyewitnesswould not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the threeeyewitnessand accepting their testimonyg into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous
|
Shaukat Hussain Alias Ali Akram & Ors Vs. Smt. Bhuneshwari Devi (Dead)) By L. Rs. & Ors | there Lordships had thought that the District Court of Vizagapatam had ceased to have jurisdiction to execute the decree within the meaning of Section 37. Their Lordships had not addressed themselves to that question. They were merely considering if the application to execute made in 1907 to the District was an application to the proper Court as understood in Art. 185 (5) of the Limitation Act. They held it was not a proper Court because the sale sought was of property within the jurisdiction of another Court. On the other hand, there is a long series of decisions which go to show that in spite of transfer of a decree for execution to another Court, the Court which passed the decree does not cease to have jurisdiction. For example in Jang Bahadur v. Bank of Upper India 55 Ind App 227 = (AIR 1928 PC 162) the Privy Council has observed at page 233 "On such transfer the former Court (that is the Court which transferred the decree) does not altogether lose seisin of the decree". It was held in that case, that when a judgment-debtor dies after transfer of the decree, the proper Court to order execution against his legal representatives under Section 50 of the CPC is the Court which passed the decree. Under Order 21 Rule 26 it has jurisdiction to pass orders which are binding on the transferee Court under R. 28. It can withdraw the decree - Lang v. Jaswantlal, ILR 50 Bom 439 = (AIR 1926 Bom 271 ) or order simultaneous execution by another Court-Krishtokishore Dutt v. Rooplall Dass, (1882) ILR 8 Cal 687. It would not, therefore, be correct to say that upon the transfer of a decree to another Court, the Court which passed the decree ceases to have jurisdiction to execute the decree within the contemplation of Section 37 C.P.C. As pointed out in Masrab Khan v. Debnath, AIR 1942 Cal 321 the word includes in Section 37 while inclusive in one sense is exclusive in another and under the circumstances specified in clauses (a) and (b) of the section it excludes (a) and (b) of the section it excludes the original Court and substitutes another which, for the purposes of the section is to be regarded as the only Court which passed the decree. Moreover, the expression jurisdiction to execute it" in clause (b) means and includes the competency of the Court to entertain an application for execution of the decree.It may happen that in certain circumstances a Court may not effectively execute a decree, but that does not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for the purposes of execution though the decree holder might have to apply for transmission of the decree to another Court for obtaining the relief which he wants. Thus in our case the Subordinate Judges Court which continued to be in existence was still a competent Court to entertain an application for execution. It could withdraw the decree from the Munsifs Court and execute the decree itself or transfer it to any other Court for execution, or, in other words, had still full control in relation to the execution of the decree. And since under Section 37 there could be only one Court at a time answering the description of a Court passing the decree, the Subordinate Judges Court both factually and in law was the Court which passed the decree and it was not necessary to have recourse to clause (b) of Section 37 to discover which Court should be substituted for the former. 13. Then again, assuming that the original Court ceases to have jurisdiction to execute the decree on its transfer to the transferee Court thhere is no warrant for the conclusion that the latter Court becomes the Court which passed the decree in view of the fact that under Section 42, it can exercise all the powers of the original Court.Under clause (b) the substitute Court is specifically declared to be not the transferee Court, but the Court which if the suit wherein the decree was passed was instituted at the time of making the execution application would have jurisdiction to try the suit. So far the purposes of Section 37, the transferee Court is not named to be the Court which passed the decree, but the Court in which the suit would have to be filed at the time of the execution. It may turn out to be the Court to which the execution is transferred or it may not be that Court. In the case with which we are concerned the Subordinate Judges Court Gaya was in existence and it would have been the only Court in which the Small Cause suit could have been filed and not the Court of Munsif Gaya. 14. In our view the decision in AIR 1934 Cal 4 is erroneous. A contrary view is taken by several other High Courts after recording specific dissent See : Khemchand v. Rambabu, AIR 1958 Madh Pra 131, Raghvender Rao v. Laxminarasayya, AIR 1962 Mys 89, Sohan Lal v. Rajmal, AIR 1963 Raj 4 and M. P. L. Chettyar Firm v. Vanappa, AIR 1936 Rang 184. All these cases agree in the view taken by the Allahabad High Court in AIR 1930 All 121 . 15. Since in the present case the decree sought to be executed by the Court of Munsif Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction, the Court of the Munsif had no competence under Order 21 rule 29 to stay the execution of the decree. The High Court, is therefore, plainly right in holding that the stay granted by that Court is null and void and, consequently, the sale which took place after attachment and proclamation could not be regarded as invalid on the ground that the execution had proceeded during the existence of a valid stay order. | 0[ds]12. Relying on the above provision the Calcutta High Court in the Comilla Union Bank, AIR 1934 Cal 4 , case seems to have thought that the expression "holder of decree of such Court" to be found in Rule 29 will include the Court to which the decree was transferred as the transferor Court had ceased to have jurisdiction to execute the decree. In the first place, there is nothing in the Privy Council case to suggest that there Lordships had thought that the District Court of Vizagapatam had ceased to have jurisdiction to execute the decree within the meaning of Section 37. Their Lordships had not addressed themselves to that question. They were merely considering if the application to execute made in 1907 to the District was an application to the proper Court as understood in Art. 185 (5) of the Limitation Act. They held it was not a proper Court because the sale sought was of property within the jurisdiction of another Court. On the other hand, there is a long series of decisions which go to show that in spite of transfer of a decree for execution to another Court, the Court which passed the decree does not cease to have jurisdiction. For example in Jang Bahadur v. Bank of Upper India 55 Ind App 227 = (AIR 1928 PC 162) the Privy Council has observed at page 233 "On such transfer the former Court (that is the Court which transferred the decree) does not altogether lose seisin of the decree". It was held in that case, that when a judgment-debtor dies after transfer of the decree, the proper Court to order execution against his legal representatives under Section 50 of theCPC is the Court which passed the decree. Under Order 21 Rule 26 it has jurisdiction to pass orders which are binding on the transferee Court under R. 28. It can withdraw the decree - Lang v. Jaswantlal, ILR 50 Bom 439 = (AIR 1926 Bom 271 ) or order simultaneous execution by another Court-Krishtokishore Dutt v. Rooplall Dass, (1882) ILR 8 Cal 687. It would not, therefore, be correct to say that upon the transfer of a decree to another Court, the Court which passed the decree ceases to have jurisdiction to execute the decree within the contemplation of Section 37 C.P.C. As pointed out in Masrab Khan v. Debnath, AIR 1942 Cal 321 the word includes in Section 37 while inclusive in one sense is exclusive in another and under the circumstances specified in clauses (a) and (b) of the section it excludes (a) and (b) of the section it excludes the original Court and substitutes another which, for the purposes of the section is to be regarded as the only Court which passed the decree. Moreover, the expression jurisdiction to execute it" in clause (b) means and includes the competency of the Court to entertain an application for execution of the decree.It may happen that in certain circumstances a Court may not effectively execute a decree, but that does not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for the purposes of execution though the decree holder might have to apply for transmission of the decree to another Court for obtaining the relief which he wants. Thus in our case the Subordinate Judges Court which continued to be in existence was still a competent Court to entertain an application for execution. It could withdraw the decree from the Munsifs Court and execute the decree itself or transfer it to any other Court for execution, or, in other words, had still full control in relation to the execution of the decree. And since under Section 37 there could be only one Court at a time answering the description of a Court passing the decree, the Subordinate Judges Court both factually and in law was the Court which passed the decree and it was not necessary to have recourse to clause (b) of Section 37 to discover which Court should be substituted for the former13. Then again, assuming that the original Court ceases to have jurisdiction to execute the decree on its transfer to the transferee Court thhere is no warrant for the conclusion that the latter Court becomes the Court which passed the decree in view of the fact that under Section 42, it can exercise all the powers of the original Court.Under clause (b) the substitute Court is specifically declared to be not the transferee Court, but the Court which if the suit wherein the decree was passed was instituted at the time of making the execution application would have jurisdiction to try the suit. So far the purposes of Section 37, the transferee Court is not named to be the Court which passed the decree, but the Court in which the suit would have to be filed at the time of the execution. It may turn out to be the Court to which the execution is transferred or it may not be that Court. In the case with which we are concerned the Subordinate Judges Court Gaya was in existence and it would have been the only Court in which the Small Cause suit could have been filed and not the Court of Munsif Gaya14. In our view the decision in AIR 1934 Cal 4 is erroneous. A contrary view is taken by several other High Courts after recording specific dissent See : Khemchand v. Rambabu, AIR 1958 Madh Pra 131, Raghvender Rao v. Laxminarasayya, AIR 1962 Mys 89, Sohan Lal v. Rajmal, AIR 1963 Raj 4 and M. P. L. Chettyar Firm v. Vanappa, AIR 1936 Rang 184. All these cases agree in the view taken by the Allahabad High Court in AIR 1930 All 121 15. Since in the present case the decree sought to be executed by the Court of Munsif Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction, the Court of the Munsif had no competence under Order 21 rule 29 to stay the execution of the decree. The High Court, is therefore, plainly right in holding that the stay granted by that Court is null and void and, consequently, the sale which took place after attachment and proclamation could not be regarded as invalid on the ground that the execution had proceeded during the existence of a valid stay order. The result, therefore, is that the present appeal fails. But in the circumstances of the case parties shall bear their own costs in this Court. | 0 | 4,818 | 1,199 | ### Instruction:
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there Lordships had thought that the District Court of Vizagapatam had ceased to have jurisdiction to execute the decree within the meaning of Section 37. Their Lordships had not addressed themselves to that question. They were merely considering if the application to execute made in 1907 to the District was an application to the proper Court as understood in Art. 185 (5) of the Limitation Act. They held it was not a proper Court because the sale sought was of property within the jurisdiction of another Court. On the other hand, there is a long series of decisions which go to show that in spite of transfer of a decree for execution to another Court, the Court which passed the decree does not cease to have jurisdiction. For example in Jang Bahadur v. Bank of Upper India 55 Ind App 227 = (AIR 1928 PC 162) the Privy Council has observed at page 233 "On such transfer the former Court (that is the Court which transferred the decree) does not altogether lose seisin of the decree". It was held in that case, that when a judgment-debtor dies after transfer of the decree, the proper Court to order execution against his legal representatives under Section 50 of the CPC is the Court which passed the decree. Under Order 21 Rule 26 it has jurisdiction to pass orders which are binding on the transferee Court under R. 28. It can withdraw the decree - Lang v. Jaswantlal, ILR 50 Bom 439 = (AIR 1926 Bom 271 ) or order simultaneous execution by another Court-Krishtokishore Dutt v. Rooplall Dass, (1882) ILR 8 Cal 687. It would not, therefore, be correct to say that upon the transfer of a decree to another Court, the Court which passed the decree ceases to have jurisdiction to execute the decree within the contemplation of Section 37 C.P.C. As pointed out in Masrab Khan v. Debnath, AIR 1942 Cal 321 the word includes in Section 37 while inclusive in one sense is exclusive in another and under the circumstances specified in clauses (a) and (b) of the section it excludes (a) and (b) of the section it excludes the original Court and substitutes another which, for the purposes of the section is to be regarded as the only Court which passed the decree. Moreover, the expression jurisdiction to execute it" in clause (b) means and includes the competency of the Court to entertain an application for execution of the decree.It may happen that in certain circumstances a Court may not effectively execute a decree, but that does not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for the purposes of execution though the decree holder might have to apply for transmission of the decree to another Court for obtaining the relief which he wants. Thus in our case the Subordinate Judges Court which continued to be in existence was still a competent Court to entertain an application for execution. It could withdraw the decree from the Munsifs Court and execute the decree itself or transfer it to any other Court for execution, or, in other words, had still full control in relation to the execution of the decree. And since under Section 37 there could be only one Court at a time answering the description of a Court passing the decree, the Subordinate Judges Court both factually and in law was the Court which passed the decree and it was not necessary to have recourse to clause (b) of Section 37 to discover which Court should be substituted for the former. 13. Then again, assuming that the original Court ceases to have jurisdiction to execute the decree on its transfer to the transferee Court thhere is no warrant for the conclusion that the latter Court becomes the Court which passed the decree in view of the fact that under Section 42, it can exercise all the powers of the original Court.Under clause (b) the substitute Court is specifically declared to be not the transferee Court, but the Court which if the suit wherein the decree was passed was instituted at the time of making the execution application would have jurisdiction to try the suit. So far the purposes of Section 37, the transferee Court is not named to be the Court which passed the decree, but the Court in which the suit would have to be filed at the time of the execution. It may turn out to be the Court to which the execution is transferred or it may not be that Court. In the case with which we are concerned the Subordinate Judges Court Gaya was in existence and it would have been the only Court in which the Small Cause suit could have been filed and not the Court of Munsif Gaya. 14. In our view the decision in AIR 1934 Cal 4 is erroneous. A contrary view is taken by several other High Courts after recording specific dissent See : Khemchand v. Rambabu, AIR 1958 Madh Pra 131, Raghvender Rao v. Laxminarasayya, AIR 1962 Mys 89, Sohan Lal v. Rajmal, AIR 1963 Raj 4 and M. P. L. Chettyar Firm v. Vanappa, AIR 1936 Rang 184. All these cases agree in the view taken by the Allahabad High Court in AIR 1930 All 121 . 15. Since in the present case the decree sought to be executed by the Court of Munsif Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction, the Court of the Munsif had no competence under Order 21 rule 29 to stay the execution of the decree. The High Court, is therefore, plainly right in holding that the stay granted by that Court is null and void and, consequently, the sale which took place after attachment and proclamation could not be regarded as invalid on the ground that the execution had proceeded during the existence of a valid stay order.
### Response:
0
### Explanation:
had not addressed themselves to that question. They were merely considering if the application to execute made in 1907 to the District was an application to the proper Court as understood in Art. 185 (5) of the Limitation Act. They held it was not a proper Court because the sale sought was of property within the jurisdiction of another Court. On the other hand, there is a long series of decisions which go to show that in spite of transfer of a decree for execution to another Court, the Court which passed the decree does not cease to have jurisdiction. For example in Jang Bahadur v. Bank of Upper India 55 Ind App 227 = (AIR 1928 PC 162) the Privy Council has observed at page 233 "On such transfer the former Court (that is the Court which transferred the decree) does not altogether lose seisin of the decree". It was held in that case, that when a judgment-debtor dies after transfer of the decree, the proper Court to order execution against his legal representatives under Section 50 of theCPC is the Court which passed the decree. Under Order 21 Rule 26 it has jurisdiction to pass orders which are binding on the transferee Court under R. 28. It can withdraw the decree - Lang v. Jaswantlal, ILR 50 Bom 439 = (AIR 1926 Bom 271 ) or order simultaneous execution by another Court-Krishtokishore Dutt v. Rooplall Dass, (1882) ILR 8 Cal 687. It would not, therefore, be correct to say that upon the transfer of a decree to another Court, the Court which passed the decree ceases to have jurisdiction to execute the decree within the contemplation of Section 37 C.P.C. As pointed out in Masrab Khan v. Debnath, AIR 1942 Cal 321 the word includes in Section 37 while inclusive in one sense is exclusive in another and under the circumstances specified in clauses (a) and (b) of the section it excludes (a) and (b) of the section it excludes the original Court and substitutes another which, for the purposes of the section is to be regarded as the only Court which passed the decree. Moreover, the expression jurisdiction to execute it" in clause (b) means and includes the competency of the Court to entertain an application for execution of the decree.It may happen that in certain circumstances a Court may not effectively execute a decree, but that does not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for the purposes of execution though the decree holder might have to apply for transmission of the decree to another Court for obtaining the relief which he wants. Thus in our case the Subordinate Judges Court which continued to be in existence was still a competent Court to entertain an application for execution. It could withdraw the decree from the Munsifs Court and execute the decree itself or transfer it to any other Court for execution, or, in other words, had still full control in relation to the execution of the decree. And since under Section 37 there could be only one Court at a time answering the description of a Court passing the decree, the Subordinate Judges Court both factually and in law was the Court which passed the decree and it was not necessary to have recourse to clause (b) of Section 37 to discover which Court should be substituted for the former13. Then again, assuming that the original Court ceases to have jurisdiction to execute the decree on its transfer to the transferee Court thhere is no warrant for the conclusion that the latter Court becomes the Court which passed the decree in view of the fact that under Section 42, it can exercise all the powers of the original Court.Under clause (b) the substitute Court is specifically declared to be not the transferee Court, but the Court which if the suit wherein the decree was passed was instituted at the time of making the execution application would have jurisdiction to try the suit. So far the purposes of Section 37, the transferee Court is not named to be the Court which passed the decree, but the Court in which the suit would have to be filed at the time of the execution. It may turn out to be the Court to which the execution is transferred or it may not be that Court. In the case with which we are concerned the Subordinate Judges Court Gaya was in existence and it would have been the only Court in which the Small Cause suit could have been filed and not the Court of Munsif Gaya14. In our view the decision in AIR 1934 Cal 4 is erroneous. A contrary view is taken by several other High Courts after recording specific dissent See : Khemchand v. Rambabu, AIR 1958 Madh Pra 131, Raghvender Rao v. Laxminarasayya, AIR 1962 Mys 89, Sohan Lal v. Rajmal, AIR 1963 Raj 4 and M. P. L. Chettyar Firm v. Vanappa, AIR 1936 Rang 184. All these cases agree in the view taken by the Allahabad High Court in AIR 1930 All 121 15. Since in the present case the decree sought to be executed by the Court of Munsif Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction, the Court of the Munsif had no competence under Order 21 rule 29 to stay the execution of the decree. The High Court, is therefore, plainly right in holding that the stay granted by that Court is null and void and, consequently, the sale which took place after attachment and proclamation could not be regarded as invalid on the ground that the execution had proceeded during the existence of a valid stay order. The result, therefore, is that the present appeal fails. But in the circumstances of the case parties shall bear their own costs in this Court.
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State Of Madhya Pradesh Vs. Shiv Kunwarbai Etc | the Ruler and or the State before the formation of Madhya Bharat was left with the Ruler excepting the properties in the enclosed list. The relevant list for the Ruler of Jhabua did not include the proper ties occupied either by Bapu Ramsingh or Paswanji Navratanbai. Paswanji Navratanbai protested against the inclusion other houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for amendment of the inventory submitted by the said Ruler. No steps appear to have been taken to evict Navratanbai from the said premises in her lifetime. On 30th April 1962 the Executive Engineer, District Dhar, submitted an application under S. 3 read with S. 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for the eviction of the respondents in Appeal No. 1164 of 1967 from the two properties formerly belonging to Navratanbai before the Sub Divisional Officer, Jhabua, constituted the competent authority under the Act. An order of eviction made by the Sub Divisional Officer was upheld in appeal to the Collector, Shivkunwarbai, widow of late Bapu Gordhansinghji, son of Navratanbai filed a writ petition in the High Court for quashing the said order. Appeal No. 1164/1967 is from the said order.5. The facts in the other appeal i.e. l165 of 1967 are similar to the facts just narrated. In this case the same former Ruler had granted a jagir to his son Ramsingh by his mistress Paswanji Bhagirathibai. The succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of Rs. 100/-. An order similar to the one dated 30th March 1948 already mentioned was passed while the order of April 1, 1948 affected Ramsingh as, it did Navratanbai in the other case. There was an order of eviction as in the other case followed by a writ petition to the High Court. 6. The central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952. This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949. The fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Rule as private property "were accepted such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act. It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication. The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties. There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property. As these properties originally belonged to the predecessors-in-interest of the respondent i-e. in C. A. 1164/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them. In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsing. 7. The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type. On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the same. The declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donees lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproachable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case. It follows that the properties, the subject-matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh. Section 3 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauthorised occupation of any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section. Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises. In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises. As the State failed to establish this fact the question of eviction under the Act could never arise. 8. | 0[ds]This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein ine fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Rule as private property "were accepted such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act. It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication. The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties. There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property. As these properties originally belonged to the predecessors-in-interest of the respondent i-e. in C. A. 1164/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them. In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsing.The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type. On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the same. The declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donees lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproachable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case. It follows that the properties, the subject-matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh. Section 3 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauthorised occupation of any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section. Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises. In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises. As the State failed to establish this fact the question of eviction under the Act could never arise. | 0 | 1,633 | 669 | ### Instruction:
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the Ruler and or the State before the formation of Madhya Bharat was left with the Ruler excepting the properties in the enclosed list. The relevant list for the Ruler of Jhabua did not include the proper ties occupied either by Bapu Ramsingh or Paswanji Navratanbai. Paswanji Navratanbai protested against the inclusion other houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for amendment of the inventory submitted by the said Ruler. No steps appear to have been taken to evict Navratanbai from the said premises in her lifetime. On 30th April 1962 the Executive Engineer, District Dhar, submitted an application under S. 3 read with S. 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for the eviction of the respondents in Appeal No. 1164 of 1967 from the two properties formerly belonging to Navratanbai before the Sub Divisional Officer, Jhabua, constituted the competent authority under the Act. An order of eviction made by the Sub Divisional Officer was upheld in appeal to the Collector, Shivkunwarbai, widow of late Bapu Gordhansinghji, son of Navratanbai filed a writ petition in the High Court for quashing the said order. Appeal No. 1164/1967 is from the said order.5. The facts in the other appeal i.e. l165 of 1967 are similar to the facts just narrated. In this case the same former Ruler had granted a jagir to his son Ramsingh by his mistress Paswanji Bhagirathibai. The succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of Rs. 100/-. An order similar to the one dated 30th March 1948 already mentioned was passed while the order of April 1, 1948 affected Ramsingh as, it did Navratanbai in the other case. There was an order of eviction as in the other case followed by a writ petition to the High Court. 6. The central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952. This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949. The fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Rule as private property "were accepted such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act. It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication. The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties. There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property. As these properties originally belonged to the predecessors-in-interest of the respondent i-e. in C. A. 1164/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them. In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsing. 7. The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type. On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the same. The declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donees lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproachable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case. It follows that the properties, the subject-matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh. Section 3 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauthorised occupation of any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section. Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises. In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises. As the State failed to establish this fact the question of eviction under the Act could never arise. 8.
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0
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This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein ine fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Rule as private property "were accepted such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act. It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication. The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties. There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property. As these properties originally belonged to the predecessors-in-interest of the respondent i-e. in C. A. 1164/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them. In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsing.The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type. On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the same. The declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donees lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproachable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case. It follows that the properties, the subject-matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh. Section 3 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauthorised occupation of any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section. Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises. In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises. As the State failed to establish this fact the question of eviction under the Act could never arise.
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Cholamandalam Investments and Finance Company Private Limited Vs. Radhika Syanthetics and Another | filed some interim applications presumably under Order 38 Rule 5 of the Code of Civil Procedure for attachment before judgment. It appears from the record that M/s Radhika Synthetics Limited filed a counter affidavit in response to the application under Order 38 Rule 5 of the Code of Civil Procedure. Copy of the counter affidavit is on record. The objections to the application under Order 38 Rule 5 all relate to the plaintiffs responsibility for supplying defective machinery. No objection about the jurisdiction was taken therein.2. Radhika Synthetics Limited filed suit No.692 of 1992 in the High Court of Bombay against M/s. Cholamandlam Investments &Finance (P) Ltd. for recovery of Rs. 2, 56, 00, 000/- with interest holding them responsible for failure to commence the production unit for which the hire purchase agreement between M/s Radhika Synthetics Limited and M/s. Cholamandlam Investments &Finance (P) Ltd. were executed. Coming to jurisdiction M/s Radhika Synthetics Limited in their suit allege that M/s. Cholamandlam Investments &Finance (P) Ltd. had agreed to install the machinery at the premises of M/s Radhika Synthetics Limited at Bombay, that the defective machinery was supplied by the defendants at Bombay, that the agreement was executed at Bombay, that the plaintiffs suffered loss and damages at Bombay, and that all the material part of cause of action has arisen at Bombay. M/s Radhika Synthetics further contend in their suit that they have obtained leave under clause 12 of the Letters Patent from the High Court of Bombay.3. The Transfer Petition filed by M/s. Cholamandlam Investments &Finance (P) Ltd. was opposed by M/s. Radhika Synthetics and Anr. inter alia on the ground that M/s. Cholamandlam Investments &Finance (P) Ltd. has an office in Bombay, that the entire documentation was done at Bombay that the payments made by M/s Radhika Synthetics Limited were made at Bombay and were received by M/s. Cholamandlam Investments &Finance (P) Ltd. at Bombay, that the entire cause of action arose at Bombay. In reply to this on behalf of the M/s. Cholamandlam Investments &Finance (P) Ltd. it was stated in the rejoinder that their office in Bombay is a small forwarding office, that the hire purchase agreement was executed at Madras, that a few instalments were also paid at Madras and that as per terms of the hire purchase agreement all monies due and pay able are to be paid at Madras.The copy of the hire purchase agreement dated 26th April, 1989 opens with the words "Memorandum of Agreement made at Madras". Clause 20 of the agreement deals with jurisdiction which is as under:- "20. Jurisdiction: This agreement has been accepted and executed by the Company at MADRAS and it has been agreed to between the parties hereto that all the covenants, terms and conditions hereof shall be observed and performed at MADRAS and the Hirer specifically agrees and undertakes that it or its representatives and agents shall institute any arbitration or other legal proceedings only in MADRAS Courts, concerning this agreement and the Hired Articles hereunder. It is further agreed between the parties hereto that only MADRAS Courts shall have exclusive jurisdiction to try any arbitration or legal proceedings or any suit in respect of any matter, claim or dispute arising out of or in any way relating to this agreement in respect of the Hired Articles." * 4. It is settled law that where two courts have jurisdiction to adjudicate upon any dispute, t he parties by a contract can submit to the jurisdiction of one and exclude the jurisdiction of the other. In that view, it appears that the parties are bound to submit to the jurisdiction of the High Court of Madras. 5. The supplemental agreements dated 19.10.1990 may have been signed on behalf of the M/s Radhika Synthetics Limited at Bombay as appears from their letter dated 18.4.1991, but they purport to have been made at Madras. Both the supplemental agreements have a clause that all terms and conditions covered by the original hire purchase agreement will continue to be in force. 6. Apparently, at best both the High Court of Madras and the High Court of Bombay can be said to have jurisdiction over the subject-matter of the dispute although by virtue of clause 20 of the agreement the parties submitted to the jurisdiction of Madras and are bound by that clause. The supplemental agreements have not totally superseded the original agreement and therefore the question whether they were executed at Bombay or Madras as they purport to be loses significance. So far as the High Court of Bombay is concerned, the leave granted under clause 12 of the Letters Patent cannot exclude the jurisdiction of th e High Court of Madras, particularly, in view of the agreement between the parties. Besides the suit at Madras was first in point of time and in that suit also, in the counter, the first respondent raised the contention that they had suffered damage to the tune of Rs.2.16 crores. The suit at Bombay was filed almost six months after the institution of the Madras suit and that is why it is described as a counterblast. The issues arising in both the suits are likely to be common in many respects. Two courses are open (i) to transfer the Bombay suit to Madras to be tried along with the latter; or (ii) to stay the Bombay suit under Section 10 of the Code of Civil Procedure till the disposal of the Madras suit. In order that all the issues are finally thrashed out by and between the parties and the litigation is not unnecessarily and unduly protracted, the first course of action commends us. Article 139A(2) empowers this Court to transfer any case pending before any High Court to any other High Court. We are satisfied that this is a fit case to exercise that power and transfer the Suit No.6920 of 1992 pending in the Bombay High Court to the High Court of Madras to be tried along with C.S.No.1161 of 1991. | 1[ds]4. It is settled law that where two courts have jurisdiction to adjudicate upon any dispute, t he parties by a contract can submit to the jurisdiction of one and exclude the jurisdiction of the other. In that view, it appears that the parties are bound to submit to the jurisdiction of the High Court of Madras.Apparently, at best both the High Court of Madras and the High Court of Bombay can be said to have jurisdiction over the subject-matter of the dispute although by virtue of clause 20 of the agreement the parties submitted to the jurisdiction of Madras and are bound by that clause. The supplemental agreements have not totally superseded the original agreement and therefore the question whether they were executed at Bombay or Madras as they purport to be loses significance. So far as the High Court of Bombay is concerned, the leave granted under clause 12 of the Letters Patent cannot exclude the jurisdiction of th e High Court of Madras, particularly, in view of the agreement between the parties. Besides the suit at Madras was first in point of time and in that suit also, in the counter, the first respondent raised the contention that they had suffered damage to the tune of Rs.2.16 crores. The suit at Bombay was filed almost six months after the institution of the Madras suit and that is why it is described as a counterblast. The issues arising in both the suits are likely to be common in many respects. Two courses are open (i) to transfer the Bombay suit to Madras to be tried along with the latter; or (ii) to stay the Bombay suit under Section 10 of the Code of Civil Procedure till the disposal of the Madras suit. In order that all the issues are finally thrashed out by and between the parties and the litigation is not unnecessarily and unduly protracted, the first course of action commends us. Article 139A(2) empowers this Court to transfer any case pending before any High Court to any other HighWe are satisfied that this is a fit case to exercise that power and transfer the Suit No.6920 of 1992 pending in the Bombay High Court to the High Court of Madras to be tried along with C.S.No.1161 of 1991. | 1 | 1,434 | 415 | ### Instruction:
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filed some interim applications presumably under Order 38 Rule 5 of the Code of Civil Procedure for attachment before judgment. It appears from the record that M/s Radhika Synthetics Limited filed a counter affidavit in response to the application under Order 38 Rule 5 of the Code of Civil Procedure. Copy of the counter affidavit is on record. The objections to the application under Order 38 Rule 5 all relate to the plaintiffs responsibility for supplying defective machinery. No objection about the jurisdiction was taken therein.2. Radhika Synthetics Limited filed suit No.692 of 1992 in the High Court of Bombay against M/s. Cholamandlam Investments &Finance (P) Ltd. for recovery of Rs. 2, 56, 00, 000/- with interest holding them responsible for failure to commence the production unit for which the hire purchase agreement between M/s Radhika Synthetics Limited and M/s. Cholamandlam Investments &Finance (P) Ltd. were executed. Coming to jurisdiction M/s Radhika Synthetics Limited in their suit allege that M/s. Cholamandlam Investments &Finance (P) Ltd. had agreed to install the machinery at the premises of M/s Radhika Synthetics Limited at Bombay, that the defective machinery was supplied by the defendants at Bombay, that the agreement was executed at Bombay, that the plaintiffs suffered loss and damages at Bombay, and that all the material part of cause of action has arisen at Bombay. M/s Radhika Synthetics further contend in their suit that they have obtained leave under clause 12 of the Letters Patent from the High Court of Bombay.3. The Transfer Petition filed by M/s. Cholamandlam Investments &Finance (P) Ltd. was opposed by M/s. Radhika Synthetics and Anr. inter alia on the ground that M/s. Cholamandlam Investments &Finance (P) Ltd. has an office in Bombay, that the entire documentation was done at Bombay that the payments made by M/s Radhika Synthetics Limited were made at Bombay and were received by M/s. Cholamandlam Investments &Finance (P) Ltd. at Bombay, that the entire cause of action arose at Bombay. In reply to this on behalf of the M/s. Cholamandlam Investments &Finance (P) Ltd. it was stated in the rejoinder that their office in Bombay is a small forwarding office, that the hire purchase agreement was executed at Madras, that a few instalments were also paid at Madras and that as per terms of the hire purchase agreement all monies due and pay able are to be paid at Madras.The copy of the hire purchase agreement dated 26th April, 1989 opens with the words "Memorandum of Agreement made at Madras". Clause 20 of the agreement deals with jurisdiction which is as under:- "20. Jurisdiction: This agreement has been accepted and executed by the Company at MADRAS and it has been agreed to between the parties hereto that all the covenants, terms and conditions hereof shall be observed and performed at MADRAS and the Hirer specifically agrees and undertakes that it or its representatives and agents shall institute any arbitration or other legal proceedings only in MADRAS Courts, concerning this agreement and the Hired Articles hereunder. It is further agreed between the parties hereto that only MADRAS Courts shall have exclusive jurisdiction to try any arbitration or legal proceedings or any suit in respect of any matter, claim or dispute arising out of or in any way relating to this agreement in respect of the Hired Articles." * 4. It is settled law that where two courts have jurisdiction to adjudicate upon any dispute, t he parties by a contract can submit to the jurisdiction of one and exclude the jurisdiction of the other. In that view, it appears that the parties are bound to submit to the jurisdiction of the High Court of Madras. 5. The supplemental agreements dated 19.10.1990 may have been signed on behalf of the M/s Radhika Synthetics Limited at Bombay as appears from their letter dated 18.4.1991, but they purport to have been made at Madras. Both the supplemental agreements have a clause that all terms and conditions covered by the original hire purchase agreement will continue to be in force. 6. Apparently, at best both the High Court of Madras and the High Court of Bombay can be said to have jurisdiction over the subject-matter of the dispute although by virtue of clause 20 of the agreement the parties submitted to the jurisdiction of Madras and are bound by that clause. The supplemental agreements have not totally superseded the original agreement and therefore the question whether they were executed at Bombay or Madras as they purport to be loses significance. So far as the High Court of Bombay is concerned, the leave granted under clause 12 of the Letters Patent cannot exclude the jurisdiction of th e High Court of Madras, particularly, in view of the agreement between the parties. Besides the suit at Madras was first in point of time and in that suit also, in the counter, the first respondent raised the contention that they had suffered damage to the tune of Rs.2.16 crores. The suit at Bombay was filed almost six months after the institution of the Madras suit and that is why it is described as a counterblast. The issues arising in both the suits are likely to be common in many respects. Two courses are open (i) to transfer the Bombay suit to Madras to be tried along with the latter; or (ii) to stay the Bombay suit under Section 10 of the Code of Civil Procedure till the disposal of the Madras suit. In order that all the issues are finally thrashed out by and between the parties and the litigation is not unnecessarily and unduly protracted, the first course of action commends us. Article 139A(2) empowers this Court to transfer any case pending before any High Court to any other High Court. We are satisfied that this is a fit case to exercise that power and transfer the Suit No.6920 of 1992 pending in the Bombay High Court to the High Court of Madras to be tried along with C.S.No.1161 of 1991.
### Response:
1
### Explanation:
4. It is settled law that where two courts have jurisdiction to adjudicate upon any dispute, t he parties by a contract can submit to the jurisdiction of one and exclude the jurisdiction of the other. In that view, it appears that the parties are bound to submit to the jurisdiction of the High Court of Madras.Apparently, at best both the High Court of Madras and the High Court of Bombay can be said to have jurisdiction over the subject-matter of the dispute although by virtue of clause 20 of the agreement the parties submitted to the jurisdiction of Madras and are bound by that clause. The supplemental agreements have not totally superseded the original agreement and therefore the question whether they were executed at Bombay or Madras as they purport to be loses significance. So far as the High Court of Bombay is concerned, the leave granted under clause 12 of the Letters Patent cannot exclude the jurisdiction of th e High Court of Madras, particularly, in view of the agreement between the parties. Besides the suit at Madras was first in point of time and in that suit also, in the counter, the first respondent raised the contention that they had suffered damage to the tune of Rs.2.16 crores. The suit at Bombay was filed almost six months after the institution of the Madras suit and that is why it is described as a counterblast. The issues arising in both the suits are likely to be common in many respects. Two courses are open (i) to transfer the Bombay suit to Madras to be tried along with the latter; or (ii) to stay the Bombay suit under Section 10 of the Code of Civil Procedure till the disposal of the Madras suit. In order that all the issues are finally thrashed out by and between the parties and the litigation is not unnecessarily and unduly protracted, the first course of action commends us. Article 139A(2) empowers this Court to transfer any case pending before any High Court to any other HighWe are satisfied that this is a fit case to exercise that power and transfer the Suit No.6920 of 1992 pending in the Bombay High Court to the High Court of Madras to be tried along with C.S.No.1161 of 1991.
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Real Time Interactive Media Private Limited Vs. Metro Mumbai Infradeveloper Private Limited | purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.8. Though it is not clear the reason why the companys name was struck off, Section 248 (1) empowers the Registrar to remove the name of company from the register of Companies but before he does that he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice under sub-section (5) of Section 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Therefore, it is clear that just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company. Similar provisions are also available in Companies Act, 1956 being Section 560 and Section 560 (5) which reads as under:560. Power of Registrar to strike defunct company off register.(1) Where the Registrar has reasonable cause to believe that a company is not carrying onbusiness or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation.(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not received to the second letter within one month from the date thereof, a notice will be published in the Official Gazette with a view to striking the name of the company off the register.(3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the resister and the company will be dissolved.(4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (3).(5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved: Provided that -(a) the liability, if any, of every director, the managing agent, secretaries and treasurers, manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and(b) nothing in this subsection shall affect the power of the Court to wind up a company the name of which has been struck off the register.(6) .......(7) .......(8) .......(9) .......9. Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.10. In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming. | 1[ds]8. Though it is not clear the reason why the companys name was struck off, Section 248 (1) empowers the Registrar to remove the name of company from the register of Companies but before he does that he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice undersubsection (5) ofSection 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Therefore, it is clear that just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company.Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.10. In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming. | 1 | 2,348 | 540 | ### 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:
purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.8. Though it is not clear the reason why the companys name was struck off, Section 248 (1) empowers the Registrar to remove the name of company from the register of Companies but before he does that he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice under sub-section (5) of Section 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Therefore, it is clear that just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company. Similar provisions are also available in Companies Act, 1956 being Section 560 and Section 560 (5) which reads as under:560. Power of Registrar to strike defunct company off register.(1) Where the Registrar has reasonable cause to believe that a company is not carrying onbusiness or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation.(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not received to the second letter within one month from the date thereof, a notice will be published in the Official Gazette with a view to striking the name of the company off the register.(3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the resister and the company will be dissolved.(4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (3).(5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved: Provided that -(a) the liability, if any, of every director, the managing agent, secretaries and treasurers, manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and(b) nothing in this subsection shall affect the power of the Court to wind up a company the name of which has been struck off the register.(6) .......(7) .......(8) .......(9) .......9. Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.10. In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.
### Response:
1
### Explanation:
8. Though it is not clear the reason why the companys name was struck off, Section 248 (1) empowers the Registrar to remove the name of company from the register of Companies but before he does that he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice undersubsection (5) ofSection 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Therefore, it is clear that just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company.Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.10. In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.
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State of Uttar Pradesh & Others Vs. Delhi Cloth Mill & Another | jurisdiction to charge duty on the liquor wastage in transit cannot be said to have been correctly decided and the impugned judgment in the instant case suffers from the same infirmity, and has to be set aside. Rule 814 envisages the levy of such differential duty. There is no question of double charging or multiple point charging in this case. It is only a question of recovery of the difference on proof of the purposes for which lower duty was earlier levied having failed to be achieved entailing liability to make good the difference. Rules 636, 637-A and 637 are also relevant to this extent 20. It was reiterated in McDowell and Co. Ltd. v. CTO ( 1977 (1) SCC 441 : 1977 SCC(Tax) 198 : 1977 (1) SCR 914 : 1977 AIR(SC) 1459) following Abdul Kadir 1962 (S2) SCR 741 : 1962 AIR(SC) 922) that excise duty is a duty on the production or manufacture of goods produced or manufactured within the country though laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production. Similarly what was stated in Kalyani Stores v. State of Orissa ( 1966 (1) SCR 865 : 1966 AIR(SC) 1686) was reiterated in Mohan Meakin Breweries Ltd. ( 1976 (3) SCC 421 : 1976 SCC(Tax) 318 : 1976 Supp SCR 510) that a countervailing duty is meant "to counter balance; to avail against with equal force or virtue; to compensate for something or serve as equivalent or substitute for". A countervailing duty is "meant to equalise the burden on alcoholic liquors manufactured or produced in the State." They may be imposed at the same rate as excise duty or at a lower so as to equalise the burden after taking into account the cost of transport from the place of manufacturing to the taxing State. Countervailing duties are meant to equalise burden on alcoholic liquors imported from outside the State and the burden placed by excise duties on alcoholic liquors manufactured or produced in the State. Countervailing duties can only be levied if similar goods are actually produced or manufactured in the State on which excise duties are being levied. Thus, countervailing duty paid in the importing State does not ipso facto affect the excise revenue of the exporting State21. The fact that the importer is required to pay countervailing duty on the imported military rum could, therefore ipso facto be no ground for opposing the levy of differential duty on the excess wastage of exported rum that duty being levied with a view to safeguard the excise revenue of the exporting State. If the excess wastage was actually lost to consumers while in the importing State no justification of such a duty may arise, that, however, would be an entirely different question without in any way affecting the competence of the legislature of the exporting State to impose such a duty. The fact that the exported rum was on payment of export duty or on bond would not again be material inasmuch as when the rum meant for export failed to be exported, there may be a presumption, may be rebuttable one, that what is shown as the excess has merged in mass of rum consumed within the State and was not separated from such a mass. The imposition of differential duty was only deferred to this moment and it still continued to be a duty on production or manufacture of rum. It could not be regarded as a duty not connected with the taxable event of manufacture or production22. There is also no similarity with the excise duty sought to be levied only on the unlifted quantity of liquor by contractors which was held to be impermissible under Sections 28 and 29 of the Act in Excise Commissioner, U.P. v. Ram Kumar ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360) and State of M.P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 AIR(SC) 633 : 1976 (2) SCR 1041 ). In the instant case the military rum was obtained for the purpose of export and the lower export duty was paid and only when the rum did not result in export the question of imposing the differential duty arose. The notion of the excise duty being changed or cancelled on account of what transpires later is not foreign to excise law. Generally speaking the imposing of the differential duty i.e. charging up the duty on the report of the excess wastage is the opposite of the system of drawback prevalent in some systems. Drawback means the repayment of duties or taxes previously charged on commodities, from which they are relieved on exportation. For example, in the customs laws of some countries an allowance is made by the government upon the duties due on imported merchandise when the importer, instead of selling it within the country re-exports it, and then the difference of the duty is refunded, if already paid. Similarly, in England there is a provision of refund of duties on British wine when the wine incidentally is spoilt or otherwise unfit for use or when delivered to another person has been returned to the maker as so spoilt or unfit. The system of charging up the duty on the sub-sequent event of non-export cannot, therefore, be said be irrespective of production or manufacture23. In the instant case if it is proved to the satisfaction of the appropriate authorities that countervailing duty had been paid on the entire consignment irrespective of the wastage then the question would arise as to whether the wastage could be ignored altogether by the exporting State as was done by the importing State. Counsel for the parties had no objection to the idea that if the explanation for wastage was satisfactory and the countervailing duty was paid in the importing State on the entire consignment irrespective of the wastage, there would be room for adjustment by reducing the duty to similar extent | 1[ds]21. The fact that the importer is required to pay countervailing duty on the imported military rum could, therefore ipso facto be no ground for opposing the levy of differential duty on the excess wastage of exported rum that duty being levied with a view to safeguard the excise revenue of the exporting State. If the excess wastage was actually lost to consumers while in the importing State no justification of such a duty may arise, that, however, would be an entirely different question without in any way affecting the competence of the legislature of the exporting State to impose such a duty. The fact that the exported rum was on payment of export duty or on bond would not again be material inasmuch as when the rum meant for export failed to be exported, there may be a presumption, may be rebuttable one, that what is shown as the excess has merged in mass of rum consumed within the State and was not separated from such a mass. The imposition of differential duty was only deferred to this moment and it still continued to be a duty on production or manufacture of rum. It could not be regarded as a duty not connected with the taxable event of manufacture or production22. There is also no similarity with the excise duty sought to be levied only on the unlifted quantity of liquor by contractors which was held to be impermissible under Sections 28 and 29 of the Act in Excise Commissioner, U.P. v. Ram Kumar ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360) and State of M.P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 AIR(SC) 633 : 1976 (2) SCR 1041 ). In the instant case the military rum was obtained for the purpose of export and the lower export duty was paid and only when the rum did not result in export the question of imposing the differential duty arose. The notion of the excise duty being changed or cancelled on account of what transpires later is not foreign to excise law. Generally speaking the imposing of the differential duty i.e. charging up the duty on the report of the excess wastage is the opposite of the system of drawback prevalent in some systems. Drawback means the repayment of duties or taxes previously charged on commodities, from which they are relieved on exportation. For example, in the customs laws of some countries an allowance is made by the government upon the duties due on imported merchandise when the importer, instead of selling it within the country re-exports it, and then the difference of the duty is refunded, if already paid. Similarly, in England there is a provision of refund of duties on British wine when the wine incidentally is spoilt or otherwise unfit for use or when delivered to another person has been returned to the maker as so spoilt or unfit. The system of charging up the duty on the sub-sequent event of non-export cannot, therefore, be said be irrespective of production or manufacture23. In the instant case if it is proved to the satisfaction of the appropriate authorities that countervailing duty had been paid on the entire consignment irrespective of the wastage then the question would arise as to whether the wastage could be ignored altogether by the exporting State as was done by the importing State. Counsel for the parties had no objection to the idea that if the explanation for wastage was satisfactory and the countervailing duty was paid in the importing State on the entire consignment irrespective of the wastage, there would be room for adjustment by reducing the duty to similar extent | 1 | 6,054 | 673 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
jurisdiction to charge duty on the liquor wastage in transit cannot be said to have been correctly decided and the impugned judgment in the instant case suffers from the same infirmity, and has to be set aside. Rule 814 envisages the levy of such differential duty. There is no question of double charging or multiple point charging in this case. It is only a question of recovery of the difference on proof of the purposes for which lower duty was earlier levied having failed to be achieved entailing liability to make good the difference. Rules 636, 637-A and 637 are also relevant to this extent 20. It was reiterated in McDowell and Co. Ltd. v. CTO ( 1977 (1) SCC 441 : 1977 SCC(Tax) 198 : 1977 (1) SCR 914 : 1977 AIR(SC) 1459) following Abdul Kadir 1962 (S2) SCR 741 : 1962 AIR(SC) 922) that excise duty is a duty on the production or manufacture of goods produced or manufactured within the country though laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production. Similarly what was stated in Kalyani Stores v. State of Orissa ( 1966 (1) SCR 865 : 1966 AIR(SC) 1686) was reiterated in Mohan Meakin Breweries Ltd. ( 1976 (3) SCC 421 : 1976 SCC(Tax) 318 : 1976 Supp SCR 510) that a countervailing duty is meant "to counter balance; to avail against with equal force or virtue; to compensate for something or serve as equivalent or substitute for". A countervailing duty is "meant to equalise the burden on alcoholic liquors manufactured or produced in the State." They may be imposed at the same rate as excise duty or at a lower so as to equalise the burden after taking into account the cost of transport from the place of manufacturing to the taxing State. Countervailing duties are meant to equalise burden on alcoholic liquors imported from outside the State and the burden placed by excise duties on alcoholic liquors manufactured or produced in the State. Countervailing duties can only be levied if similar goods are actually produced or manufactured in the State on which excise duties are being levied. Thus, countervailing duty paid in the importing State does not ipso facto affect the excise revenue of the exporting State21. The fact that the importer is required to pay countervailing duty on the imported military rum could, therefore ipso facto be no ground for opposing the levy of differential duty on the excess wastage of exported rum that duty being levied with a view to safeguard the excise revenue of the exporting State. If the excess wastage was actually lost to consumers while in the importing State no justification of such a duty may arise, that, however, would be an entirely different question without in any way affecting the competence of the legislature of the exporting State to impose such a duty. The fact that the exported rum was on payment of export duty or on bond would not again be material inasmuch as when the rum meant for export failed to be exported, there may be a presumption, may be rebuttable one, that what is shown as the excess has merged in mass of rum consumed within the State and was not separated from such a mass. The imposition of differential duty was only deferred to this moment and it still continued to be a duty on production or manufacture of rum. It could not be regarded as a duty not connected with the taxable event of manufacture or production22. There is also no similarity with the excise duty sought to be levied only on the unlifted quantity of liquor by contractors which was held to be impermissible under Sections 28 and 29 of the Act in Excise Commissioner, U.P. v. Ram Kumar ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360) and State of M.P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 AIR(SC) 633 : 1976 (2) SCR 1041 ). In the instant case the military rum was obtained for the purpose of export and the lower export duty was paid and only when the rum did not result in export the question of imposing the differential duty arose. The notion of the excise duty being changed or cancelled on account of what transpires later is not foreign to excise law. Generally speaking the imposing of the differential duty i.e. charging up the duty on the report of the excess wastage is the opposite of the system of drawback prevalent in some systems. Drawback means the repayment of duties or taxes previously charged on commodities, from which they are relieved on exportation. For example, in the customs laws of some countries an allowance is made by the government upon the duties due on imported merchandise when the importer, instead of selling it within the country re-exports it, and then the difference of the duty is refunded, if already paid. Similarly, in England there is a provision of refund of duties on British wine when the wine incidentally is spoilt or otherwise unfit for use or when delivered to another person has been returned to the maker as so spoilt or unfit. The system of charging up the duty on the sub-sequent event of non-export cannot, therefore, be said be irrespective of production or manufacture23. In the instant case if it is proved to the satisfaction of the appropriate authorities that countervailing duty had been paid on the entire consignment irrespective of the wastage then the question would arise as to whether the wastage could be ignored altogether by the exporting State as was done by the importing State. Counsel for the parties had no objection to the idea that if the explanation for wastage was satisfactory and the countervailing duty was paid in the importing State on the entire consignment irrespective of the wastage, there would be room for adjustment by reducing the duty to similar extent
### Response:
1
### Explanation:
21. The fact that the importer is required to pay countervailing duty on the imported military rum could, therefore ipso facto be no ground for opposing the levy of differential duty on the excess wastage of exported rum that duty being levied with a view to safeguard the excise revenue of the exporting State. If the excess wastage was actually lost to consumers while in the importing State no justification of such a duty may arise, that, however, would be an entirely different question without in any way affecting the competence of the legislature of the exporting State to impose such a duty. The fact that the exported rum was on payment of export duty or on bond would not again be material inasmuch as when the rum meant for export failed to be exported, there may be a presumption, may be rebuttable one, that what is shown as the excess has merged in mass of rum consumed within the State and was not separated from such a mass. The imposition of differential duty was only deferred to this moment and it still continued to be a duty on production or manufacture of rum. It could not be regarded as a duty not connected with the taxable event of manufacture or production22. There is also no similarity with the excise duty sought to be levied only on the unlifted quantity of liquor by contractors which was held to be impermissible under Sections 28 and 29 of the Act in Excise Commissioner, U.P. v. Ram Kumar ( 1976 (3) SCC 540 : 1976 SCC(Tax) 360) and State of M.P. v. Firm Gappulal ( 1976 (1) SCC 791 : 1976 SCC(Tax) 71 : 1976 AIR(SC) 633 : 1976 (2) SCR 1041 ). In the instant case the military rum was obtained for the purpose of export and the lower export duty was paid and only when the rum did not result in export the question of imposing the differential duty arose. The notion of the excise duty being changed or cancelled on account of what transpires later is not foreign to excise law. Generally speaking the imposing of the differential duty i.e. charging up the duty on the report of the excess wastage is the opposite of the system of drawback prevalent in some systems. Drawback means the repayment of duties or taxes previously charged on commodities, from which they are relieved on exportation. For example, in the customs laws of some countries an allowance is made by the government upon the duties due on imported merchandise when the importer, instead of selling it within the country re-exports it, and then the difference of the duty is refunded, if already paid. Similarly, in England there is a provision of refund of duties on British wine when the wine incidentally is spoilt or otherwise unfit for use or when delivered to another person has been returned to the maker as so spoilt or unfit. The system of charging up the duty on the sub-sequent event of non-export cannot, therefore, be said be irrespective of production or manufacture23. In the instant case if it is proved to the satisfaction of the appropriate authorities that countervailing duty had been paid on the entire consignment irrespective of the wastage then the question would arise as to whether the wastage could be ignored altogether by the exporting State as was done by the importing State. Counsel for the parties had no objection to the idea that if the explanation for wastage was satisfactory and the countervailing duty was paid in the importing State on the entire consignment irrespective of the wastage, there would be room for adjustment by reducing the duty to similar extent
|
Canara Bank Limited Vs. Anant Narayan Surkund and Others | clerks). It is urged that when allowances were provided for cashiers in para 164(b), the intention was to exclude routine clerks in the cash department. These routine clerks in the cash department, it is urged, can be either paying clerks or receiving clerks or paying-cum-receiving clerks. As suming that is so, it does not follow that clerks like the cashiers in the present cases were not intended to be entitled to a special allowance. The reason for this special allowance for cashiers was that they were in-charge of cash and that, as we have explained means that they should be in sole charge of the cash in the single lock box. Now routine clerks in the cash department may be paying clerks, receiving clerks or even paying-cum-receiving clerks; but they would not be entitled to any allowance unless it was shown that they were in sole charge of the cash in the single lock in the particular branch. That can only happen when there is a single clerk doing the work of both receiving and paying in the cash department of a branch, for then only it can be said that he is in sole charge of the cash in the single lock box of the bank during the working hours. The words "other than routine clerks" used in para 164 (b) are made clear by four entries in the said paragraph, namely, clauses 3, 4, 5 and 6. These clauses provide for special allowance for head cashiers. Units of 5 clerks and above (cl. 3), for head cashiers, units of four clerks and below (c). 4), for assistant cashiers (above the level of routine clerks, Units of 5 clerks and above, (cl. 5), and for assistant cashiers (above the level of routine clerks), units of four clerks and below, (cl. 6). These clauses will show that when the cash department consists of more than one person it is only one person, whether he is called the head cashier or assistant cashier, who would be in-charge and would get an allowance and not the other clerks working in the cash department who may be doing either receiving work or paying work or even both paying and receiving work. The reason why the clerks in the present appeals are entitled to allowance is that they are the sole clerks doing both receiving and paying work and they have to take charge of the single lock box in the morning and are responsible for it throughout the day and make over charge of the single-lock box in the evening when the bank closes for the day. It is only such sole clerks in the cash department of a branch who would be entitled to an allowance under cl. (7) of para 164 (b).130 of the decision of the Labour Appellate Tribunal. It seems to have been urged before the Appellate Tribunal that receiving and paying cashiers should be granted special allowance; but that was rejected. It is urged that in view of this rejection it is not open to the workmen to urge that clerks like those with whom we are concerned in the present appeals are entitled to the allowance under para 164 (b) (7). In the first place it appears to us on reading para 130 that what was contemplated therein was receiving clerks and paying clerks and not receiving-cum-paying clerks. If that is so, the rejection of the allowance for receiving clerks and paying clerks will not affect the case of receiving-cum-paying clerks. But even if the words used include receiving-cum-paying clerks that does not again mean that receiving-cum-paying clerks who are in sole charge of cash should not get the allowance under para 164 (b). It is clear to us that when the case of receiving-cum-paying clerks was rejected by the Appellate Tribunal it referred only to those receiving-cum- paying clerks who were not in- charge of cash, for it may be possible for a bank to have a receiving-cum-paying clerk along with (say) a head cashier, and in such a case it is only the head cashier who is entitled to the allowance as he would be the person in charge and supervising the work of other clerks. Lastly it is urged that if this interpretation is put on para 164 (b) (7), it will create some anomalies. It is pointed out in this connection that in cl. (4) head cashiers (units of four clerks and below) will get only Rs. 11/- in B class banks and Rs. 8/- in C class banks as special allowance while cashiers in -charge of cash like the clerks in the present appeals would get Rs. 15/- in a B class bank and Rs. 12/- in a C class bank as allowance. We however find no anomaly in the fact that cashiers in-charge of cash in pay offices (which words include branches) would get a little more as allowance than head cashiers in cl. (4) who have a unit of four clerks or less. It may well have been thought by the Sastry Tribunal that a sole cashier in-charge of cash in a cash department doing both receiving and paying work may have greater responsibility than a head-cashier with four or less clerks below him. In any case this difference in the allowance cannot in our opinion affect the clear meaning of para 164 (b) (7).In appeals 731-752, the facts are exactly the same with this addition that the sole clerk doing receiving as well as paying work in the branches of this bank further has the key of the single lock box always in his charge while in appeal No. 787 there is no evidence as to who keeps the key of the single lock box after it is put in the double lock. That in our opinion makes no difference to the responsibility and in any case would be an added reason for the sole clerks in the cash department in appeals Nos. 731 to 752 getting special allowance.8. | 0[ds]We are further of opinion that there is no force in the second contention of the banks either. It is true that para 164 (b) (7) of the Sastry award speaks of cashiers in-charge of cash at pay offices. We recognise that strictly speaking a branch of the bank is not the same thing as a pay office; but the question whether the provision of para 164 (b) (7) would apply to a branch was referred to Shri jeejeebhoy for clarification under s. 6 of the Industrial Disputes (Banking Companies) Decision Act, 1955, (XLI of 1955) and Shri Jeejeebhoy held in 1959 that the use of the words "pay office" was not intended to have a restricted meaning referring only to those units which actually had the designation of pay office and would also apply to a branch in properNow routine clerks in the cash department may be paying clerks, receiving clerks or even paying-cum-receiving clerks; but they would not be entitled to any allowance unless it was shown that they were in sole charge of the cash in the single lock in the particular branch. That can only happen when there is a single clerk doing the work of both receiving and paying in the cash department of a branch, for then only it can be said that he is in sole charge of the cash in the single lock box of the bank during the working hours. The words "other than routine clerks" used in para 164 (b) are made clear by four entries in the said paragraph, namely, clauses 3, 4, 5 and 6. These clauses provide for special allowance for head cashiers. Units of 5 clerks and above (cl. 3), for head cashiers, units of four clerks and below (c). 4), for assistant cashiers (above the level of routine clerks, Units of 5 clerks and above, (cl. 5), and for assistant cashiers (above the level of routine clerks), units of four clerks and below, (cl. 6). These clauses will show that when the cash department consists of more than one person it is only one person, whether he is called the head cashier or assistant cashier, who would be in-charge and would get an allowance and not the other clerks working in the cash department who may be doing either receiving work or paying work or even both paying and receiving work. The reason why the clerks in the present appeals are entitled to allowance is that they are the sole clerks doing both receiving and paying work and they have to take charge of the single lock box in the morning and are responsible for it throughout the day and make over charge of the single-lock box in the evening when the bank closes for the day. It is only such sole clerks in the cash department of a branch who would be entitled to an allowance under cl. (7) of para 164 (b).130 of the decision of the Labour Appellate Tribunal. It seems to have been urged before the Appellate Tribunal that receiving and paying cashiers should be granted special allowance; but that was rejected. It is urged that in view of this rejection it is not open to the workmen to urge that clerks like those with whom we are concerned in the present appeals are entitled to the allowance under para 164 (b) (7). In the first place it appears to us on reading para 130 that what was contemplated therein was receiving clerks and paying clerks and not receiving-cum-paying clerks. If that is so, the rejection of the allowance for receiving clerks and paying clerks will not affect the case of receiving-cum-paying clerks. But even if the words used include receiving-cum-paying clerks that does not again mean that receiving-cum-paying clerks who are in sole charge of cash should not get the allowance under para 164 (b). It is clear to us that when the case of receiving-cum-paying clerks was rejected by the Appellate Tribunal it referred only to those receiving-cum- paying clerks who were not in- charge of cash, for it may be possible for a bank to have a receiving-cum-paying clerk along with (say) a head cashier, and in such a case it is only the head cashier who is entitled to the allowance as he would be the person in charge and supervising the work of other clerks. Lastly it is urged that if this interpretation is put on para 164 (b) (7), it will create some anomalies. It is pointed out in this connection that in cl. (4) head cashiers (units of four clerks and below) will get only Rs. 11/- in B class banks and Rs. 8/- in C class banks as special allowance while cashiers in -charge of cash like the clerks in the present appeals would get Rs. 15/- in a B class bank and Rs. 12/- in a C class bank as allowance. We however find no anomaly in the fact that cashiers in-charge of cash in pay offices (which words include branches) would get a little more as allowance than head cashiers in cl. (4) who have a unit of four clerks or less. It may well have been thought by the Sastry Tribunal that a sole cashier in-charge of cash in a cash department doing both receiving and paying work may have greater responsibility than a head-cashier with four or less clerks below him. In any case this difference in the allowance cannot in our opinion affect the clear meaning of para 164 (b) (7).In appeals 731-752, the facts are exactly the same with this addition that the sole clerk doing receiving as well as paying work in the branches of this bank further has the key of the single lock box always in his charge while in appeal No. 787 there is no evidence as to who keeps the key of the single lock box after it is put in the double lock. That in our opinion makes no difference to the responsibility and in any case would be an added reason for the sole clerks in the cash department in appeals Nos. 731 to 752 getting special allowance. | 0 | 3,785 | 1,154 | ### 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:
clerks). It is urged that when allowances were provided for cashiers in para 164(b), the intention was to exclude routine clerks in the cash department. These routine clerks in the cash department, it is urged, can be either paying clerks or receiving clerks or paying-cum-receiving clerks. As suming that is so, it does not follow that clerks like the cashiers in the present cases were not intended to be entitled to a special allowance. The reason for this special allowance for cashiers was that they were in-charge of cash and that, as we have explained means that they should be in sole charge of the cash in the single lock box. Now routine clerks in the cash department may be paying clerks, receiving clerks or even paying-cum-receiving clerks; but they would not be entitled to any allowance unless it was shown that they were in sole charge of the cash in the single lock in the particular branch. That can only happen when there is a single clerk doing the work of both receiving and paying in the cash department of a branch, for then only it can be said that he is in sole charge of the cash in the single lock box of the bank during the working hours. The words "other than routine clerks" used in para 164 (b) are made clear by four entries in the said paragraph, namely, clauses 3, 4, 5 and 6. These clauses provide for special allowance for head cashiers. Units of 5 clerks and above (cl. 3), for head cashiers, units of four clerks and below (c). 4), for assistant cashiers (above the level of routine clerks, Units of 5 clerks and above, (cl. 5), and for assistant cashiers (above the level of routine clerks), units of four clerks and below, (cl. 6). These clauses will show that when the cash department consists of more than one person it is only one person, whether he is called the head cashier or assistant cashier, who would be in-charge and would get an allowance and not the other clerks working in the cash department who may be doing either receiving work or paying work or even both paying and receiving work. The reason why the clerks in the present appeals are entitled to allowance is that they are the sole clerks doing both receiving and paying work and they have to take charge of the single lock box in the morning and are responsible for it throughout the day and make over charge of the single-lock box in the evening when the bank closes for the day. It is only such sole clerks in the cash department of a branch who would be entitled to an allowance under cl. (7) of para 164 (b).130 of the decision of the Labour Appellate Tribunal. It seems to have been urged before the Appellate Tribunal that receiving and paying cashiers should be granted special allowance; but that was rejected. It is urged that in view of this rejection it is not open to the workmen to urge that clerks like those with whom we are concerned in the present appeals are entitled to the allowance under para 164 (b) (7). In the first place it appears to us on reading para 130 that what was contemplated therein was receiving clerks and paying clerks and not receiving-cum-paying clerks. If that is so, the rejection of the allowance for receiving clerks and paying clerks will not affect the case of receiving-cum-paying clerks. But even if the words used include receiving-cum-paying clerks that does not again mean that receiving-cum-paying clerks who are in sole charge of cash should not get the allowance under para 164 (b). It is clear to us that when the case of receiving-cum-paying clerks was rejected by the Appellate Tribunal it referred only to those receiving-cum- paying clerks who were not in- charge of cash, for it may be possible for a bank to have a receiving-cum-paying clerk along with (say) a head cashier, and in such a case it is only the head cashier who is entitled to the allowance as he would be the person in charge and supervising the work of other clerks. Lastly it is urged that if this interpretation is put on para 164 (b) (7), it will create some anomalies. It is pointed out in this connection that in cl. (4) head cashiers (units of four clerks and below) will get only Rs. 11/- in B class banks and Rs. 8/- in C class banks as special allowance while cashiers in -charge of cash like the clerks in the present appeals would get Rs. 15/- in a B class bank and Rs. 12/- in a C class bank as allowance. We however find no anomaly in the fact that cashiers in-charge of cash in pay offices (which words include branches) would get a little more as allowance than head cashiers in cl. (4) who have a unit of four clerks or less. It may well have been thought by the Sastry Tribunal that a sole cashier in-charge of cash in a cash department doing both receiving and paying work may have greater responsibility than a head-cashier with four or less clerks below him. In any case this difference in the allowance cannot in our opinion affect the clear meaning of para 164 (b) (7).In appeals 731-752, the facts are exactly the same with this addition that the sole clerk doing receiving as well as paying work in the branches of this bank further has the key of the single lock box always in his charge while in appeal No. 787 there is no evidence as to who keeps the key of the single lock box after it is put in the double lock. That in our opinion makes no difference to the responsibility and in any case would be an added reason for the sole clerks in the cash department in appeals Nos. 731 to 752 getting special allowance.8.
### Response:
0
### Explanation:
Sastry award speaks of cashiers in-charge of cash at pay offices. We recognise that strictly speaking a branch of the bank is not the same thing as a pay office; but the question whether the provision of para 164 (b) (7) would apply to a branch was referred to Shri jeejeebhoy for clarification under s. 6 of the Industrial Disputes (Banking Companies) Decision Act, 1955, (XLI of 1955) and Shri Jeejeebhoy held in 1959 that the use of the words "pay office" was not intended to have a restricted meaning referring only to those units which actually had the designation of pay office and would also apply to a branch in properNow routine clerks in the cash department may be paying clerks, receiving clerks or even paying-cum-receiving clerks; but they would not be entitled to any allowance unless it was shown that they were in sole charge of the cash in the single lock in the particular branch. That can only happen when there is a single clerk doing the work of both receiving and paying in the cash department of a branch, for then only it can be said that he is in sole charge of the cash in the single lock box of the bank during the working hours. The words "other than routine clerks" used in para 164 (b) are made clear by four entries in the said paragraph, namely, clauses 3, 4, 5 and 6. These clauses provide for special allowance for head cashiers. Units of 5 clerks and above (cl. 3), for head cashiers, units of four clerks and below (c). 4), for assistant cashiers (above the level of routine clerks, Units of 5 clerks and above, (cl. 5), and for assistant cashiers (above the level of routine clerks), units of four clerks and below, (cl. 6). These clauses will show that when the cash department consists of more than one person it is only one person, whether he is called the head cashier or assistant cashier, who would be in-charge and would get an allowance and not the other clerks working in the cash department who may be doing either receiving work or paying work or even both paying and receiving work. The reason why the clerks in the present appeals are entitled to allowance is that they are the sole clerks doing both receiving and paying work and they have to take charge of the single lock box in the morning and are responsible for it throughout the day and make over charge of the single-lock box in the evening when the bank closes for the day. It is only such sole clerks in the cash department of a branch who would be entitled to an allowance under cl. (7) of para 164 (b).130 of the decision of the Labour Appellate Tribunal. It seems to have been urged before the Appellate Tribunal that receiving and paying cashiers should be granted special allowance; but that was rejected. It is urged that in view of this rejection it is not open to the workmen to urge that clerks like those with whom we are concerned in the present appeals are entitled to the allowance under para 164 (b) (7). In the first place it appears to us on reading para 130 that what was contemplated therein was receiving clerks and paying clerks and not receiving-cum-paying clerks. If that is so, the rejection of the allowance for receiving clerks and paying clerks will not affect the case of receiving-cum-paying clerks. But even if the words used include receiving-cum-paying clerks that does not again mean that receiving-cum-paying clerks who are in sole charge of cash should not get the allowance under para 164 (b). It is clear to us that when the case of receiving-cum-paying clerks was rejected by the Appellate Tribunal it referred only to those receiving-cum- paying clerks who were not in- charge of cash, for it may be possible for a bank to have a receiving-cum-paying clerk along with (say) a head cashier, and in such a case it is only the head cashier who is entitled to the allowance as he would be the person in charge and supervising the work of other clerks. Lastly it is urged that if this interpretation is put on para 164 (b) (7), it will create some anomalies. It is pointed out in this connection that in cl. (4) head cashiers (units of four clerks and below) will get only Rs. 11/- in B class banks and Rs. 8/- in C class banks as special allowance while cashiers in -charge of cash like the clerks in the present appeals would get Rs. 15/- in a B class bank and Rs. 12/- in a C class bank as allowance. We however find no anomaly in the fact that cashiers in-charge of cash in pay offices (which words include branches) would get a little more as allowance than head cashiers in cl. (4) who have a unit of four clerks or less. It may well have been thought by the Sastry Tribunal that a sole cashier in-charge of cash in a cash department doing both receiving and paying work may have greater responsibility than a head-cashier with four or less clerks below him. In any case this difference in the allowance cannot in our opinion affect the clear meaning of para 164 (b) (7).In appeals 731-752, the facts are exactly the same with this addition that the sole clerk doing receiving as well as paying work in the branches of this bank further has the key of the single lock box always in his charge while in appeal No. 787 there is no evidence as to who keeps the key of the single lock box after it is put in the double lock. That in our opinion makes no difference to the responsibility and in any case would be an added reason for the sole clerks in the cash department in appeals Nos. 731 to 752 getting special allowance.
|
MANIBEN MAGANBHAI BHARIYA Vs. DISTRICT DEVELOPMENT OFFICER DAHOD & ORS | State Government. However, the State Government gets contributions from the Central Government. Moreover, it can always be said that occupation is carried out in the establishments of Anganwadi centres. Hence, Anganwadi Centre is an establishment within the meaning of clause (e) of Section 2 of the Contract Labour Act. 26. The Code of Wages, 2019 is an enactment that received the assent of the President on 8th August 2019. However, only a few provisions therein have been brought into force so far. Clause (m) of Section 2 thereof defines establishment which means any place where any industry, trade, business, manufacture, or occupation is carried out and it includes the Government establishments. There is a similar definition of establishment under clause 29 of Section 2 of the Code on Social Security, 2020 which received the assent of the President on 28th September 2020. These provisions show the legislative intent to include the various Government establishments in the category of establishments in the welfare statutes. 27. It is not the case of the State Government that every Anganwadi centre is a separate entity. Anganwadi centres and Mini Anganwadi centres are a part of the Anganwadi establishment of the State Government. The Anganwadi centres have been employing ten or more AWWs and AWHs in the State. Therefore, I have no manner of doubt that Anganwadi centres are establishments contemplated by clause (b) of Sub--section (3) of Section 1 of the 1972 Act. The learned Additional Solicitor General relied upon a decision of this Court in Bangalore Turf Club (supra). It was a case arising out of the Employees State Insurance Act, 1948. The said Act does not define establishment. The decision has no relevance in this case. 28. Clauses (e), (f), and (s) of Section 2 of the 1972 Act which define employee, employer and wages are relevant. The same read thus: (e) employee means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity; (f) employer means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop: - (i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned, (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority. (iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person; (s) wages means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance. 29. The definition of wages is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to AWWs and AWHs will also be covered by the definition of wages. As AWWs and AWHs are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. In view of the said Rules of the Gujarat Government, the Anganwadi centres are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Government for the supervision and control of AWWs and AWHs will be the employer within the meaning of clause (f) of Section 2. 30. I may add here that the Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of Sub--section (3) of Section 1 of the 1972 Act. In the Anganwadi centres, the activity of running a pre- school for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by AWWs and AWHs. The State Government is running pre- schools in Anganwadi centres in accordance with Section 11 of the RTE Act. 31. For the reasons recorded above, I have no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court in the case of Ameerbi which was followed by the Delhi High Court in the case of Akhil Bhartiya Anganwadi Kamgar Union (Regd.) (supra). These decisions, for the reasons recorded earlier, have no bearing on the issue involved in these appeals. The learned Single Judge was right in holding that the 1972 Act was applicable to AWWs and AWHs. The Controlling Authority has granted simple interest at the rate of 10% on the overdue gratuity amounts. All eligible AWWs and AWHs shall be entitled to the benefit of interest. | 1[ds]The appropriate Government, in this case, is the Government of Gujarat. For giving effect to Section 11 of the RTE Act, a provision has been made by the State Government to conduct pre-primary schools for children above the age of three years in the Anganwadi centres. Moreover, as specifically laid down in the aforesaid Government Resolution, it is the duty of AWWs to provide a pleasant educational environment at Anganwadi centres. It is also the duty of AWWs to assess the growth of children and make entries in the booklet titled My Growth Story. Thus, Anganwadi centres are also running pre-primary schools for children in the age group of 3 to 6 years. The educational activity of running pre--school is an integral part of Anganwadi centres. AWWs and AWHs who are managing the Anganwadi centres have a duty to look after pre- primary schools as well. We may also note here that on 8th March 2018, the Government of India has launched the National Nutrition Mission by the name The Prime Ministers Overarching Scheme for Holistic Nourishment. The responsibility of implementing a part of the scheme is of the Anganwadi centres. Under the National Education Policy, 2020, there is a proposal to make available Early Childhood Care and Education (ECCE) to children having socio- economic disadvantaged backgrounds. It is provided that ECCE will be extended through Anganwadi centres.16. In the case of Ameerbi (supra), this Court dealt with the issue whether AWWs and AWHs were holding civil posts. The issue was whether the original applications filed by AWWs before the State Tribunal established under the Administrative Tribunals Act, 1985 were maintainable. This Court held that the posts of AWWs were not statutory posts and the same have been created in terms of ICDS. Therefore, there was no relationship of employer and employee between the State Government and AWWs. It was held that the AWWs do not carry on any function of the State. It was observed that no Recruitment Rules have been framed for appointing AWWs. Much water has flown after the decision in the case of Ameerbi (supra) was rendered in the year 2007. When the said decision was rendered by this Court, the 2013 Act was not on the statute book. As noted earlier, the Anganwadi centres established under ICDS have been given statutory status under the 2013 Act. Moreover, under Sections 4, 5 and 6 of the 2013 Act, the Anganwadi centres perform statutory duties under the 2013 Act. I have already referred to the Government Resolution of the Government of Gujarat dated 25th November 2019 in extenso.17. The Resolution incorporates the said Rules which lay down selection criteria, educational qualifications, the process of selection, etc. of AWWs and AWHs. Under the said Rules, a detailed process of making appointments of AWWs and AWHs has been incorporated. It also incorporates the marking system for the selection of AWWs and AWHs. The said Rules provide that the AWWs and AWHs will continue in the service till the age of 58 years. Even the minimum and maximum age of the candidates for participating in the process of recruitment has been laid down. There are provisions made for the termination of services of AWWs and AWHs. Though the said rules refer to their service as honorary service, the use of the word honorary is not determinative of the status of AWWs and AWHs.18. In view of the provisions of the 2013 Act and Section 11 of the RTE Act, Anganwadi centres also perform statutory duties. Therefore, even AWWs and AWHs perform statutory duties under the said enactments. The Anganwadi centres have, thus, become an extended arm of the Government in view of the enactment of the 2013 Act and the Rules framed by the Government of Gujarat. The Anganwadi centres have been established to give effect to the obligations of the State defined under Article 47 of the Constitution. It can be safely said that the posts of AWWs and AWHs are statutory posts.19. As far as the State of Gujarat is concerned, the appointments of AWWs and AWHs are governed by the said Rules. In view of the 2013 Act, AWWs and AWHs are no longer a part of any temporary scheme of ICDS. It cannot be said that the employment of AWWs and AWHs has temporary status. In view of the changes brought about by the 2013 Act and the aforesaid Rules framed by the Government of Gujarat, the law laid down by this Court in the case of Ameerbi will not detain this Court any further from deciding the issue. For the reasons stated above, the decision in the case of Ameerbi will not have any bearing on the issue involved in these appeals.PLIGHT OF AWWs AND AWHs20. AWWs and AWHs have been assigned all-pervasive duties, which include identification of the beneficiaries, cooking nutritious food, serving healthy food to the beneficiaries, conducting pre- school for the children of the age group of 3 to 6 years, and making frequent home visits for various reasons. Implementation of very important and innovative provisions relating to children, pregnant women as well as lactating mothers under the 2013 Act has been entrusted to them. It is thus impossible to accept the contention that the job assigned to AWWs and AWHs is a part-time job. The Government Resolution dated 25th November 2019, which prescribes duties of AWWs and AWHs, does not lay down that their job is a part-time job. Considering the nature of duties specified thereunder, it is full-time employment. In the State of Gujarat, AWWs are being paid monthly remuneration of only Rs.7,800/-- and AWHs are being paid monthly remuneration of only Rs.3,950/--. AWWs working in mini-Anganwadi centres are being paid a sum of Rs.4,400/-- per month. The important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers have been assigned to them. In addition, there is a duty to render pre--school education. For all this, they are being paid very meagre remuneration and paltry benefits under an insurance scheme of the Central Government. It is high time that the Central Government and State Governments take serious note of the plight of AWWs and AWHs who are expected to render such important services to the society.This Court in the case of the Labour Court, Jullunder (supra) has given a wide interpretation to clause (b). In paragraph 3 of the said decision, this Court held thus:3. In this appeal, the learned Additional Solicitor General contends on behalf of the appellant that the Payment of Gratuity Act, 1972 cannot be invoked by the respondents because the Project does not fall within the scope of Section 1(3) of that Act. Section 1(3) provides that the Act will apply to:(a) every factory, mine, oilfield, plantation, port and railway company;(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.According to the parties, it is clause (b) alone which needs to be considered for deciding whether the Act applies to the Project. The Labour Court has held that the Project is an establishment within the meaning of the Payment of Wages Act, Section 2(ii) (g) of which defines an industrial establishment to mean any establishment in which any work relating to the construction development or maintenance of buildings, roads, bridges or canals, relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on. It is urged for the appellant that the Payment of Wages Act is not an enactment contemplated by Section 1(3)(b) of the Payment of Gratuity Act. The Payment of Wages Act, it is pointed out, is a Central enactment and Section 1(3)(b), it is said, refers to a law enacted by the State Legislature. We are unable to accept the contention. Section 1(3)(b) speaks of any law for the time being in force in relation to shops and establishments in a State. There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payment of Wages Act is not a law in relation to shops and establishments. As to that, the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class of establishments, that is to say, industrial establishments. But it is contended, the law referred to under Section 1(3)(b) must be a law which relates to both shops and establishments, such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression law in Section 1(3)(b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation to non--commercial establishments. Had Section 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non--commercial. The Punjab Shops and Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting Section 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression establishments unqualified. We have carefully examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to Section 1(3)(b) urged before us on behalf of the appellant. Section 1(3)(b) applies to every establishment within the meaning of any law for the time being in force in relation to establishments in a State. Such an establishment would include an industrial establishment within the meaning of Section 2(ii)(g) of the Payment of Wages Act. Accordingly, we are of opinion that the Payment of Gratuity Act applies to an establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on. The Hydel Upper Bari Doab Construction Project is such an establishment, and the Payment of Gratuity Act applies to it.Hence, establishments contemplated by clause (b) can be establishments within the meaning of any law for the time being in force in a State in relation to establishments. Therefore, I have examined the laws in relation to establishments which are in force in the State of Gujarat.27. It is not the case of the State Government that every Anganwadi centre is a separate entity. Anganwadi centres and Mini Anganwadi centres are a part of the Anganwadi establishment of the State Government. The Anganwadi centres have been employing ten or more AWWs and AWHs in the State. Therefore, I have no manner of doubt that Anganwadi centres are establishments contemplated by clause (b) of Sub--section (3) of Section 1 of the 1972 Act. The learned Additional Solicitor General relied upon a decision of this Court in Bangalore Turf Club (supra). It was a case arising out of the Employees State Insurance Act, 1948. The said Act does not define establishment. The decision has no relevance in this case.29. The definition of wages is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to AWWs and AWHs will also be covered by the definition of wages. As AWWs and AWHs are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. In view of the said Rules of the Gujarat Government, the Anganwadi centres are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Government for the supervision and control of AWWs and AWHs will be the employer within the meaning of clause (f) of Section 2.30. I may add here that the Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of Sub--section (3) of Section 1 of the 1972 Act. In the Anganwadi centres, the activity of running a pre- school for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by AWWs and AWHs. The State Government is running pre- schools in Anganwadi centres in accordance with Section 11 of the RTE Act.31. For the reasons recorded above, I have no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court in the case of Ameerbi which was followed by the Delhi High Court in the case of Akhil Bhartiya Anganwadi Kamgar Union (Regd.) (supra). These decisions, for the reasons recorded earlier, have no bearing on the issue involved in these appeals. The learned Single Judge was right in holding that the 1972 Act was applicable to AWWs and AWHs. The Controlling Authority has granted simple interest at the rate of 10% on the overdue gratuity amounts. All eligible AWWs and AWHs shall be entitled to the benefit of interest. | 1 | 14,367 | 2,729 | ### Instruction:
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State Government. However, the State Government gets contributions from the Central Government. Moreover, it can always be said that occupation is carried out in the establishments of Anganwadi centres. Hence, Anganwadi Centre is an establishment within the meaning of clause (e) of Section 2 of the Contract Labour Act. 26. The Code of Wages, 2019 is an enactment that received the assent of the President on 8th August 2019. However, only a few provisions therein have been brought into force so far. Clause (m) of Section 2 thereof defines establishment which means any place where any industry, trade, business, manufacture, or occupation is carried out and it includes the Government establishments. There is a similar definition of establishment under clause 29 of Section 2 of the Code on Social Security, 2020 which received the assent of the President on 28th September 2020. These provisions show the legislative intent to include the various Government establishments in the category of establishments in the welfare statutes. 27. It is not the case of the State Government that every Anganwadi centre is a separate entity. Anganwadi centres and Mini Anganwadi centres are a part of the Anganwadi establishment of the State Government. The Anganwadi centres have been employing ten or more AWWs and AWHs in the State. Therefore, I have no manner of doubt that Anganwadi centres are establishments contemplated by clause (b) of Sub--section (3) of Section 1 of the 1972 Act. The learned Additional Solicitor General relied upon a decision of this Court in Bangalore Turf Club (supra). It was a case arising out of the Employees State Insurance Act, 1948. The said Act does not define establishment. The decision has no relevance in this case. 28. Clauses (e), (f), and (s) of Section 2 of the 1972 Act which define employee, employer and wages are relevant. The same read thus: (e) employee means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity; (f) employer means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop: - (i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned, (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority. (iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, or managing director or by any other name, such person; (s) wages means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance. 29. The definition of wages is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to AWWs and AWHs will also be covered by the definition of wages. As AWWs and AWHs are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. In view of the said Rules of the Gujarat Government, the Anganwadi centres are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Government for the supervision and control of AWWs and AWHs will be the employer within the meaning of clause (f) of Section 2. 30. I may add here that the Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of Sub--section (3) of Section 1 of the 1972 Act. In the Anganwadi centres, the activity of running a pre- school for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by AWWs and AWHs. The State Government is running pre- schools in Anganwadi centres in accordance with Section 11 of the RTE Act. 31. For the reasons recorded above, I have no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court in the case of Ameerbi which was followed by the Delhi High Court in the case of Akhil Bhartiya Anganwadi Kamgar Union (Regd.) (supra). These decisions, for the reasons recorded earlier, have no bearing on the issue involved in these appeals. The learned Single Judge was right in holding that the 1972 Act was applicable to AWWs and AWHs. The Controlling Authority has granted simple interest at the rate of 10% on the overdue gratuity amounts. All eligible AWWs and AWHs shall be entitled to the benefit of interest.
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a law enacted by the State Legislature. We are unable to accept the contention. Section 1(3)(b) speaks of any law for the time being in force in relation to shops and establishments in a State. There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payment of Wages Act is not a law in relation to shops and establishments. As to that, the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class of establishments, that is to say, industrial establishments. But it is contended, the law referred to under Section 1(3)(b) must be a law which relates to both shops and establishments, such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression law in Section 1(3)(b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation to non--commercial establishments. Had Section 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non--commercial. The Punjab Shops and Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting Section 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression establishments unqualified. We have carefully examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to Section 1(3)(b) urged before us on behalf of the appellant. Section 1(3)(b) applies to every establishment within the meaning of any law for the time being in force in relation to establishments in a State. Such an establishment would include an industrial establishment within the meaning of Section 2(ii)(g) of the Payment of Wages Act. Accordingly, we are of opinion that the Payment of Gratuity Act applies to an establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on. The Hydel Upper Bari Doab Construction Project is such an establishment, and the Payment of Gratuity Act applies to it.Hence, establishments contemplated by clause (b) can be establishments within the meaning of any law for the time being in force in a State in relation to establishments. Therefore, I have examined the laws in relation to establishments which are in force in the State of Gujarat.27. It is not the case of the State Government that every Anganwadi centre is a separate entity. Anganwadi centres and Mini Anganwadi centres are a part of the Anganwadi establishment of the State Government. The Anganwadi centres have been employing ten or more AWWs and AWHs in the State. Therefore, I have no manner of doubt that Anganwadi centres are establishments contemplated by clause (b) of Sub--section (3) of Section 1 of the 1972 Act. The learned Additional Solicitor General relied upon a decision of this Court in Bangalore Turf Club (supra). It was a case arising out of the Employees State Insurance Act, 1948. The said Act does not define establishment. The decision has no relevance in this case.29. The definition of wages is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to AWWs and AWHs will also be covered by the definition of wages. As AWWs and AWHs are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. In view of the said Rules of the Gujarat Government, the Anganwadi centres are not under the control of the Central Government. Therefore, the State Government will be an appropriate Government within the meaning of clause (a) of Section 2 of the 1972 Act. Accordingly, a person or authority appointed by the appropriate Government for the supervision and control of AWWs and AWHs will be the employer within the meaning of clause (f) of Section 2.30. I may add here that the Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of Sub--section (3) of Section 1 of the 1972 Act. In the Anganwadi centres, the activity of running a pre- school for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by AWWs and AWHs. The State Government is running pre- schools in Anganwadi centres in accordance with Section 11 of the RTE Act.31. For the reasons recorded above, I have no manner of doubt that the 1972 Act will apply to Anganwadi centres and in turn to AWWs and AWHs. In the impugned Judgment, the Division Bench was swayed by the view taken by this Court in the case of Ameerbi which was followed by the Delhi High Court in the case of Akhil Bhartiya Anganwadi Kamgar Union (Regd.) (supra). These decisions, for the reasons recorded earlier, have no bearing on the issue involved in these appeals. The learned Single Judge was right in holding that the 1972 Act was applicable to AWWs and AWHs. The Controlling Authority has granted simple interest at the rate of 10% on the overdue gratuity amounts. All eligible AWWs and AWHs shall be entitled to the benefit of interest.
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BIRLA INSTITUTE OF TECHNOLOGY Vs. THE STATE OF JHARKHAND | Abhay Manohar Sapre, J.1. On 07.01.2019, this Court placing reliance on the decision of this Court in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer and Others (2004) 1 SCC 755 , which was brought to the Court’s notice by the learned counsel appearing for the appellant, allowed the appeal and set aside the order of the High Court.2. However, after the pronouncement of the order in this appeal, it came to the notice of this Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to our notice while passing the order on 07.01.2019 in this appeal.3. This Court, therefore, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order:"On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein.Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997.In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997.Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal.The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench.The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr.Justice Abhay Manohar Sapre and Hon’ble Ms.Justice Indu Malhotra as early as possible.”4. It is in the light of the aforementioned order, the matter was listed before this Bench for passing the appropriate order in the disposed of appeal.5. We heard the learned counsel for the parties. Both the parties have also filed their written submissions.6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in appellant’s favour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant. | 0[ds]6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition ofas defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered infavour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.23. As mentioned above, the issue in question was subject matter of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association (supra). This Court had examined the question in the light of the definition of the worddefined in Section 2(e) of the Act as it stood then. The definition reads asmeans any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi¬skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.31. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Pvt. Primary Teachers Association(supra) is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of respondent No.4 (teacher) in any manner in claiming gratuity amount from the appellant(employer) under the Act.34. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now. | 0 | 831 | 738 | ### Instruction:
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Abhay Manohar Sapre, J.1. On 07.01.2019, this Court placing reliance on the decision of this Court in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer and Others (2004) 1 SCC 755 , which was brought to the Court’s notice by the learned counsel appearing for the appellant, allowed the appeal and set aside the order of the High Court.2. However, after the pronouncement of the order in this appeal, it came to the notice of this Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to our notice while passing the order on 07.01.2019 in this appeal.3. This Court, therefore, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order:"On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein.Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997.In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997.Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal.The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench.The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr.Justice Abhay Manohar Sapre and Hon’ble Ms.Justice Indu Malhotra as early as possible.”4. It is in the light of the aforementioned order, the matter was listed before this Bench for passing the appropriate order in the disposed of appeal.5. We heard the learned counsel for the parties. Both the parties have also filed their written submissions.6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in appellant’s favour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.
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6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition ofas defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered infavour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.23. As mentioned above, the issue in question was subject matter of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association (supra). This Court had examined the question in the light of the definition of the worddefined in Section 2(e) of the Act as it stood then. The definition reads asmeans any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi¬skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.31. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Pvt. Primary Teachers Association(supra) is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of respondent No.4 (teacher) in any manner in claiming gratuity amount from the appellant(employer) under the Act.34. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now.
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H.P.Housing & Urban Devt.Auth Vs. Ranjit Singh Rana | award. Aggrieved thereby, the appellants filed objections under Section 34(3) of the Arbitrator and Conciliation Act, 1996 (for short ?the Act?). The objections were accepted by the High Court to the extent that the reasons were not given by the Arbitrator and, accordingly, the matter was sent back to the Arbitrator for giving reasons in support of the award. 3. After remand, the Arbitrator considered the matter and passed the award on February 14, 2001. The appellants filed objections against the award dated February 14, 2001. They also deposited the entire amount due under the award before the High Court on May 24, 2001. The objections filed by the appellants were ultimately rejected by the single Judge of the High Court on February 26, 2008. Against this order, intra- court appeal is said to be pending. The respondent, however, started execution of the Award dated February 14, 2001 by filing Execution Petition on August 12, 2008. The appellants filed objections to the Execution Petition. 4. The question before the High Court was whether the respondent was entitled to interest @ 18% p.a. from the date of the award dated February 14, 2001 till the date of actual payment to the respondent. 5. The High Court considered the diverse provisions of the Act including Section 31(7)(a) and (b) of the Act and few decisions of this Court and ultimately held that the respondent was entitled to post-award interest @ 18% p.a. from the date of the award till the date of the actual payment. It is this order which is in appeal before us. 6. There is no dispute that the entire amount due under the Award dated February 14, 2001 was deposited by the appellants before the High Court on May 24, 2001. The question that arises for determination before us is, whether deposit of the entire award amount by the appellants on May 24, 2001 into the High Court amounts to payment to the respondent and the appellants liability to pay interest @ 18% p.a. from the date of the award ceased from that date. 7. Section 31(7)(a) and (b) of the Act reads as under: ?31(7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment.? 8. The above provision has been recently considered by this Court in State of Haryana and others vs. S.L. Arora and Company (2010)3 SCC 690 . This Court held as under: ?........In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract, as per discretion of the Arbitral Tribunal. On the other hand, in retard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum.? This Court further observed in para 24.6 as under: ?.........but if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post-award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post- award interest at the higher rate of 18% per annum." 9. Learned counsel for the parties are ad idem that the Arbitrator has not exercised any discretion in the matter pertaining to the interest for the post-award period. Obviously, in absence thereof, by virtue of Section 31(7)(b) of the Act, the award would carry interest @ 18% p.a. from the date of the award till the date of payment. Whether May 24, 2001 when the entire award amount was deposited by the appellants into the High Court is the date of payment ? 10. Payment is not defined in the Act. The Concise Oxford English Dictionary (Tenth Edition-revised) defines payment 1. the action of paying or the process of being paid. 2. an amount paid or payable. Webster Comprehensive Dictionary (International Edition) Volume two defines payment 1. the act of paying. 2 Pay; requital; recompense. The Law Laxicon, 2nd Edition reprint by P. Ramanatha Aiyar, inter alia, states payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due. 11. The word payment may have different meaning in different context but in the context of Section 37(1)(b); it means extinguishment of liability arising under the award. It signifies satisfaction of the award. The deposit of the award amount into the Court is nothing but a payment to the credit of the decree- holder. In this view, once the award amount was deposited by the appellants before the High Court on May 24, 2001, the liability of post-award interest from May 24, 2001 ceased. The High Court, thus, was not right in directing the appellants to pay the interest @ 18% p.a. beyond May 24, 2001. | 1[ds]10. Payment is not defined in the Act. The Concise Oxford English Dictionary (Tenth Edition-revised) defines payment 1. the action of paying or the process of being paid. 2. an amount paid or payable. Webster Comprehensive Dictionary (International Edition) Volume two defines payment 1. the act of paying. 2 Pay; requital; recompense.The Law Laxicon, 2nd Edition reprint by P. Ramanatha Aiyar, inter alia, states payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due.11. The word payment may have different meaning in different context but in the context of Section 37(1)(b); it means extinguishment of liability arising under the award. It signifies satisfaction of the award. The deposit of the award amount into the Court is nothing but a payment to the credit of the decree- holder. In this view, once the award amount was deposited by the appellants before the High Court on May 24, 2001, the liability of post-award interest from May 24, 2001 ceased. The High Court, thus, was not right in directing the appellants to pay the interest @ 18% p.a. beyond May 24, 2001. | 1 | 1,251 | 260 | ### Instruction:
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award. Aggrieved thereby, the appellants filed objections under Section 34(3) of the Arbitrator and Conciliation Act, 1996 (for short ?the Act?). The objections were accepted by the High Court to the extent that the reasons were not given by the Arbitrator and, accordingly, the matter was sent back to the Arbitrator for giving reasons in support of the award. 3. After remand, the Arbitrator considered the matter and passed the award on February 14, 2001. The appellants filed objections against the award dated February 14, 2001. They also deposited the entire amount due under the award before the High Court on May 24, 2001. The objections filed by the appellants were ultimately rejected by the single Judge of the High Court on February 26, 2008. Against this order, intra- court appeal is said to be pending. The respondent, however, started execution of the Award dated February 14, 2001 by filing Execution Petition on August 12, 2008. The appellants filed objections to the Execution Petition. 4. The question before the High Court was whether the respondent was entitled to interest @ 18% p.a. from the date of the award dated February 14, 2001 till the date of actual payment to the respondent. 5. The High Court considered the diverse provisions of the Act including Section 31(7)(a) and (b) of the Act and few decisions of this Court and ultimately held that the respondent was entitled to post-award interest @ 18% p.a. from the date of the award till the date of the actual payment. It is this order which is in appeal before us. 6. There is no dispute that the entire amount due under the Award dated February 14, 2001 was deposited by the appellants before the High Court on May 24, 2001. The question that arises for determination before us is, whether deposit of the entire award amount by the appellants on May 24, 2001 into the High Court amounts to payment to the respondent and the appellants liability to pay interest @ 18% p.a. from the date of the award ceased from that date. 7. Section 31(7)(a) and (b) of the Act reads as under: ?31(7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment.? 8. The above provision has been recently considered by this Court in State of Haryana and others vs. S.L. Arora and Company (2010)3 SCC 690 . This Court held as under: ?........In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract, as per discretion of the Arbitral Tribunal. On the other hand, in retard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum.? This Court further observed in para 24.6 as under: ?.........but if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post-award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post- award interest at the higher rate of 18% per annum." 9. Learned counsel for the parties are ad idem that the Arbitrator has not exercised any discretion in the matter pertaining to the interest for the post-award period. Obviously, in absence thereof, by virtue of Section 31(7)(b) of the Act, the award would carry interest @ 18% p.a. from the date of the award till the date of payment. Whether May 24, 2001 when the entire award amount was deposited by the appellants into the High Court is the date of payment ? 10. Payment is not defined in the Act. The Concise Oxford English Dictionary (Tenth Edition-revised) defines payment 1. the action of paying or the process of being paid. 2. an amount paid or payable. Webster Comprehensive Dictionary (International Edition) Volume two defines payment 1. the act of paying. 2 Pay; requital; recompense. The Law Laxicon, 2nd Edition reprint by P. Ramanatha Aiyar, inter alia, states payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due. 11. The word payment may have different meaning in different context but in the context of Section 37(1)(b); it means extinguishment of liability arising under the award. It signifies satisfaction of the award. The deposit of the award amount into the Court is nothing but a payment to the credit of the decree- holder. In this view, once the award amount was deposited by the appellants before the High Court on May 24, 2001, the liability of post-award interest from May 24, 2001 ceased. The High Court, thus, was not right in directing the appellants to pay the interest @ 18% p.a. beyond May 24, 2001.
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10. Payment is not defined in the Act. The Concise Oxford English Dictionary (Tenth Edition-revised) defines payment 1. the action of paying or the process of being paid. 2. an amount paid or payable. Webster Comprehensive Dictionary (International Edition) Volume two defines payment 1. the act of paying. 2 Pay; requital; recompense.The Law Laxicon, 2nd Edition reprint by P. Ramanatha Aiyar, inter alia, states payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due.11. The word payment may have different meaning in different context but in the context of Section 37(1)(b); it means extinguishment of liability arising under the award. It signifies satisfaction of the award. The deposit of the award amount into the Court is nothing but a payment to the credit of the decree- holder. In this view, once the award amount was deposited by the appellants before the High Court on May 24, 2001, the liability of post-award interest from May 24, 2001 ceased. The High Court, thus, was not right in directing the appellants to pay the interest @ 18% p.a. beyond May 24, 2001.
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SHITAL FIBERS LTD Vs. INDIAN ACRYLICS LIMITED | 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance. It was furthermore held: Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. 43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed. After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest. 24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment. 25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding. 26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court. 29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. 27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed. 28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance. | 0[ds]8. This Court in the case of Madhusudan Gordhandas & Co. vs. Madhu Woollen Industries Pvt. Ltd. (1971) 3 SCC 632 , observed thus:20. Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (See London and Paris Banking Corporation [(1874) LR 19 Eq 444] ) Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been properly was not allowed. (See Re. Brighton Club and Horfold Hotel Co. Ltd. [(1865) 35 Beav 204])21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt, see Re. A Company. [94 SJ 369] Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely See Re Tweeds Garages Ltd. [1962 Ch 406] The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.9. It is therefore well settled, that if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. It is equally well settled, that where the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. It is equally settled, that the principles on which the court acts are first, that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.10. As to whether the defence of a Company is in good faith or as to whether it is of a substance and as to whether it is likely to succeed in point of law and as to whether the company adduces prima facie proof of the facts on which defence depends, would depend upon the facts of each case.13. It is thus clear, that in response to paragraph 4 and 5 wherein the respondent has specified its claim, the only reply given is, that it is a matter of record and that it shows about the business worth of his client. No doubt, that in paragraph 6, it is stated, that the respondent had himself been coming to the appellant and settled the amount and agreed to return Rs.25 lakh out of which only Rs. 5 lakh was returned.14. From the perusal of the written statement filed to the Company Petition, it would reveal, that the main contention of the appellant was, that it was a running company making profits and further, that the claim of the respondent was not admitted by it. It was contended, that the petition was filed only to pressurise the appellant to pay the dues which were neither admitted nor legally due.15. It was also stated in the written statement that till 26.6.2007 there was no issue with regard to supply of raw material by the respondent. However, with effect from 26.6.2007 it was noticed, that raw material supplied was defective and the goods which were sold in the market utilizing the said raw material were received back with some complaints. It was stated, that the goods which were supplied by the respondent vide invoices dated 26.6.2007 onwards were defective and the products manufactured by the appellant – company using the said raw material (i.e. acrylic yarn) were returned by the dealers and importers due to defective quality. It was stated, that the appellant – Company had returned the defective raw material to the respondent – Company, which remained unused. It was stated, that the respondent had acknowledged the same and credited an amount of Rs.6,22,073/- in the account of the appellant. It is further stated, that after various meetings and negotiations, the respondent agreed to compensate the appellant on account of supply of defective material by issuing a credit note of Rs.5 lakh. It was further stated, that as per the account of the appellant, an amount of Rs.53,648/- was receivable from the respondent after making all the adjustments.17. It could thus be seen, that the learned Company Judge has found, that the defence taken by the appellant with regard to the products of the respondent being defective in quality was by way of an after-thought, inasmuch as, no document was placed on record in support of such contention. It was further found, that whereas in reply to the notice the appellant had claimed, that it was entitled to recover an amount of Rs.11,07,297/-, in the calculations given in written statement, the amount is Rs.53,648/-.19. It is thus amply clear, that both the learned Company Judge as well as the Division Bench upon appreciation of the materials placed on record have found, that the defence as sought to be raised by the appellant with regard to the quality of the material supplied by the respondent being defective was by way of an after-thought. The Division Bench found, that when the appellant raised a dispute about the quality, the same was acknowledged by the respondent and it was reflected in its conduct by the grant of credit. It observed, that the respondent had fairly acknowledged the defects when there were any and it was reasonable to presume, that if there were any other defects, it would have recorded the same in some manner or the other. The Division Bench further found, that it was difficult to accept the case of the appellant, that the discussions with regard to defective material were only oral. It further found, that in the reply to the statutory notice there were no mention at all with regard to oral agreement. The Division Bench further found, that the contention of the appellant, that the goods manufactured utilizing the defective raw material supplied by the respondent being returned by the dealers and thereby the appellant suffered any damages, was also not supported by any document.20. It was concurrently found, that the defence of the appellant was not bona fide one nor a substantial one. On facts, it was also found, that the appellant had taken contradictory stand in order to defeat the claim of the respondent. It was also concurrently found, that the appellant had failed to adduce prima facie proof of facts contented by it.21. Insofar as the contention of the appellant, that the appellant was an on-going Company running into profits and that the claim of the respondent was not admitted by it, is concerned, it is not a requirement in law. Reliance in this respect could be placed on various judgments of this Court including the one in the case of Vijay Industries (supra).22. Insofar as the reliance placed by the learned counsel for the appellant on the judgment of this Court in the case of Mediquip Systems (P) Ltd. (supra) is concerned, in the said case this Court came to a finding, that there was a bona fide dispute concerning the claim of the appellant. It was also found, that there was no clear cut finding by the learned single judge, that a debt is prima facie due and payable by the Company to the petitioning creditor. It was further found, that the company court had no jurisdiction to direct the company to deposit the amount payable to a third party or to a party other than the petitioning creditor. As such, on facts, the said judgment would not be applicable to the facts of the present case.23. In the case of Vijay Industries (supra) relied by the appellant, the learned single judge after finding, that a prima facie case has been made out, admitted the company petition. However, in appeal, the Division Bench set aside the order of the learned single judge. This Court while setting aside the order of the Division Bench observed thus:41. In the present case, on the date of filing of the application, dues in respect of at least a part of the debt which was more than the amount specified in Section 433 [sic Section 434(1)(a)] of the Companies Act was not denied. It is not a requirement of the law that the entire debt must be definite and certain. The Division Bench of the High Court proceeded on the basis that the entire sum covering both the principal and the interest must be undisputed, holding:Except making a bald allegation in the company petition that the petitioner had come to know that the respondent Company owes large sums of money to its creditors and it is not in a position to meet its debt obligations and as, therefore, become commercially insolvent, the petitioner has not taken necessary care to prima facie establish the same. The only piece of evidence available on the side of the petitioner is that the respondent is indebted to the petitioner a sum which is claimed towards interest on the delayed payment. Assuming for a moment that the respondent Company is liable to pay interest on the delayed payments and it has not paid the said amount to the petitioner, could it be said that the respondent neglected to pay the debt, particularly when the respondent is disputing the liability of payment of interest on the delayed payments and when there is no such written agreement in between the parties for such payment of interest.42. The Division Bench upon noticing the facts of the matter formulated the question as to whether the respondent is liable to pay interest at 2% per month on delayed payments and when that is being disputed would it constitute prima facie a valid ground for admission of the company petition? It was held:… The petitioner seeks to rely upon the invoices which according to him contain at the foot a clause for payment of interest on delayed payments. Such a clause, even assuming is there, since it has not been placed by means of any cogent evidence in this case, in view of the judgment of the Rajasthan High Court in Kitply Industries case [(1998) 91 Comp Cas 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance.It was furthermore held:Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts.43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed.After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest.24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment.25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding.26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court.29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties.27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed.28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance. | 0 | 5,789 | 3,101 | ### Instruction:
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715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance. It was furthermore held: Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts. 43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed. After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest. 24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment. 25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding. 26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court. 29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. 27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed. 28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance.
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High Court in Kitply Industries case [(1998) 91 Comp Cas 715 (Raj)] , cannot constitute an agreement between the parties for payment of interest. The legal position, thus, seems to be obvious. Before seeking a company to be wound up on the ground that it is unable to pay its debts, it must be shown before the Court that the debt claimed against the company is ascertained and definite and that the company failed to pay the same. Mere failure to pay the amount would not constitute the requisite neglect to pay as envisaged under clause (a) of sub- section (1) of Section 434 of the Act when the company bona fide disputes the very liability and hence the defence taken up by it is of substance.It was furthermore held:Having regard to the facts and circumstances of the instant case, we are of the considered view that the claim of the petitioner towards interest on delayed payments since not covered by any specific agreement between the parties inter se is a contentious issue and the dispute as regards the payment of interest is bona fide and it cannot, therefore, legitimately be concluded that the respondent has neglected to pay. The petitioner, who pleaded inter alia in his petition that as per the trade practice payments made shall be adjusted towards interest first and balance, if any, shall be adjusted towards principal later, failed to establish the same by any prima facie evidence. In the absence of any such trade practice, appropriating the amounts towards interest first and the balance, if any towards principal next becomes inappropriate, in which event the claim of the petitioner that the respondent is liable to pay Rs 65,15,947 basing upon such calculations cannot be accurate. The total amount claimed by the petitioner as due in that view of the matter becomes doubtful and not definite. It is still got to be ascertained if the claim of the respondent were to be considered that there has been no agreement for payment of interest on delayed payments. For the above reasons, it cannot be presumed prima facie that the respondent is unable to pay its debts.43. The findings of the High Court, with respect, are not correct for more than one reason; firstly, because the Division Bench did not hold that the invoices were not proved by cogent evidence; secondly, question of leading evidence would arise only after the company petition is admitted and, thirdly, issuance of invoices and signature of the respondent thereon is not disputed.After observing the aforesaid, this Court further held, that the appellant was also entitled to the payment of interest.24. It can thus clearly be seen, that this Court had clearly held, that it is not necessary while admitting the petition to establish that the entire claim is undisputed. We fail to understand, as to how the said judgment of this Court in Vijay Industries (supra) would be applicable to the facts of the present case. As a matter of fact, in the said case, this Court on consideration of the invoices had come to a conclusion, that the appellant was also entitled for the interest on delayed payment.25. In the present case, the Division Bench has not issued a direction to grant the interest as claimed by the respondent. On the contrary, it has declined to enter into the question, as to whether the appellant was also liable to pay the interest since the learned company judge had not referred to the said issue. The Division Bench therefore, while dismissing the appeal, has done so without prejudice to the respondents contention regarding interest which may be claimed either by way of an application for clarification before the learned judge or by way of an appeal or by any other proceeding.26. We find, that the judgment of this Court in the case of IBA Health (India) Private Limited (supra) would also not be applicable to the facts of the present case. In the said case, it will be relevant to refer to the following observations of this Court.29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties.27. This Court held, that the company court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed. It was found, that in the said case, a detailed investigation of facts and examination of evidence and interpretation of various terms and conditions of the deed of settlement and the compromise entered into between the parties was necessary in adjudicating the claim, which could not be done in the proceedings under Section 434 of the said Act. In the said case, it was also noticed, that the claim was in respect of contingent debt and that the disputes between the parties had been compromised in terms of settlement deed.28. Such is not the case here. On facts, the learned Company Judge as well as the Division bench have found, that the defence of the appellant could not be said to be bona fide, in good faith and of substance.
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N.M. Goel & Co Vs. Sales Tax Officer, Rajnandgaon & Anr | incorporated them into the works, there was not even a theoretical possibility of any element of profit being involved in the turnover represented by the cost of such materials. Though, ordinarily, when a works contract was put through or completed by a contractor, profit from the contract was determined on the value of the contract as a whole and not by considering the several items that would go to form such value of the contract, where, as in that case, materials were supplied at fixed rates by the government to the contractor solely for being used, fixed or incorporated in the works on the terms that they would remain the property of the government and any surplus should be returned to the government, and the real total value of the entire contract would be the value minus the cost of such materials so supplied. Since no element of profit was involved in the turnover represented by the cost of the materials supplied by the government to the appellant, the income or profits derived by the appellant from such contracts had to be determined on the basis of the value of the contracts represented by the cash payments received by the appellant from the government exclusive of the cost of the materials received for being used, fixed or incorporated in the works. There the question was whether there was profit taxable to income tax on the sale of the materials. There was none and it was so held. 10. This Court again examined the question in the context of a sale of meals and amenities by a hotelier in the case of State of Himachal Pradesh v. Associated Hotels of India Ltd. ((1972) 1 SCC 472 : 29 STC 474) , where this Court reiterated that mere passing of property in an article or commodity during the course of the performance of a transaction did not render it a transaction of sale. For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case, the court has to find out the primary object of the transaction and the intention of the parties while entering into it. It may, in some cases, be that even while entering into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work of performing the service. In such cases the transaction would not be one and indivisible, but would form two separate agreements - one of work or service and the other of sale. 11. Therefore, from the above decisions it follows that in order to be sale taxable to duty, not only the property in the goods should pass from the contractor to the government, or the appellant in this case but there should be an independent contract - separate and distinct - apart from mere passing of the property where a party purchases or procures goods from the government. Mere passing of property from the contractor to the government would not suffice. There must be sale of goods. The primary object of the bargain judged in its entirety must be viewed. In the instant case, Clause 10 is significant as we have set out hereinbefore. For the purpose of performance, the contractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the contractor to be used for the purpose of performing the contract only. The value of such quantity of materials and stores so supplied was specified at a rate and got set-off or deducted from any sum due or to become due thereafter to the contractor. Mr. Virmani, appearing for the appellant submitted before us that in the instant case, there was no such independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is no inherent sale; a sale inheres from the transaction. Clause 10 read in the proper light indicates that position12. Our attention was drawn to a Bench decision of the Kerala High Court in Construction Company, Changanacherry v. State of Kerala (36 STC 320 (Ker HC)), wherein on a consideration of the contract the court came to the conclusion that the consideration stipulated to be paid to the petitioner in that case for the work which the petitioner had undertaken to perform and not by way of sale price of the poles to be produced and delivered by the petitioner. Therefore, it was held that the petitioner was not liable to sales tax. Mr. Virmani also drew our attention to a Division Bench decision of the Calcutta High Court in Cementation Patel (Durgapur) v. CCT (47 STC 385 (Cal HC)). There, on consideration of the transaction entered into between the parties the court came to the conclusion that the property in the materials all along remained with the Government of India and whatever was the nature of the transaction involved between the assessee on the one hand and the other members of the consortium or the sub-contractors on the other, the same did not and could not amount to sale as the assessee could not in the facts of that case transfer the property therein. In the instant case, by use or consumption of materials in the work of construction, there was passing of the property in the goods to the assessee from the PWD. By appropriation and by the agreement, there was a sale as envisaged in terms of Clause 10 set out hereinbefore. Therefore, in our opinion, there was a sale which was liable to tax. | 0[ds]11. Therefore, from the above decisions it follows that in order to be sale taxable to duty, not only the property in the goods should pass from the contractor to the government, or the appellant in this case but there should be an independent contractseparate and distinctapart from mere passing of the property where a party purchases or procures goods from the government. Mere passing of property from the contractor to the government would not suffice. There must be sale of goods. The primary object of the bargain judged in its entirety must be viewed. In the instant case, Clause 10 is significant as we have set out hereinbefore. For the purpose of performance, the contractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the contractor to be used for the purpose of performing the contract only. The value of such quantity of materials and stores so supplied was specified at a rate and gotor deducted from any sum due or to become due thereafter to the contractor. Mr. Virmani, appearing for the appellant submitted before us that in the instant case, there was no such independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is no inherent sale; a sale inheres from the transaction. Clause 10 read in the proper light indicates that position12. Our attention was drawn to a Bench decision of the Kerala High Court in Construction Company, Changanacherry v. State of Kerala (36 STC 320 (Ker HC)), wherein on a consideration of the contract the court came to the conclusion that the consideration stipulated to be paid to the petitioner in that case for the work which the petitioner had undertaken to perform and not by way of sale price of the poles to be produced and delivered by the petitioner. Therefore, it was held that the petitioner was not liable to sales tax. Mr. Virmani also drew our attention to a Division Bench decision of the Calcutta High Court in Cementation Patel (Durgapur) v. CCT (47 STC 385 (Cal HC)). There, on consideration of the transaction entered into between the parties the court came to the conclusion that the property in the materials all along remained with the Government of India and whatever was the nature of the transaction involved between the assessee on the one hand and the other members of the consortium or theon the other, the same did not and could not amount to sale as the assessee could not in the facts of that case transfer the property therein. In the instant case, by use or consumption of materials in the work of construction, there was passing of the property in the goods to the assessee from the PWD. By appropriation and by the agreement, there was a sale as envisaged in terms of Clause 10 set out hereinbefore. Therefore, in our opinion, there was a sale which was liable to tax | 0 | 4,677 | 566 | ### 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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incorporated them into the works, there was not even a theoretical possibility of any element of profit being involved in the turnover represented by the cost of such materials. Though, ordinarily, when a works contract was put through or completed by a contractor, profit from the contract was determined on the value of the contract as a whole and not by considering the several items that would go to form such value of the contract, where, as in that case, materials were supplied at fixed rates by the government to the contractor solely for being used, fixed or incorporated in the works on the terms that they would remain the property of the government and any surplus should be returned to the government, and the real total value of the entire contract would be the value minus the cost of such materials so supplied. Since no element of profit was involved in the turnover represented by the cost of the materials supplied by the government to the appellant, the income or profits derived by the appellant from such contracts had to be determined on the basis of the value of the contracts represented by the cash payments received by the appellant from the government exclusive of the cost of the materials received for being used, fixed or incorporated in the works. There the question was whether there was profit taxable to income tax on the sale of the materials. There was none and it was so held. 10. This Court again examined the question in the context of a sale of meals and amenities by a hotelier in the case of State of Himachal Pradesh v. Associated Hotels of India Ltd. ((1972) 1 SCC 472 : 29 STC 474) , where this Court reiterated that mere passing of property in an article or commodity during the course of the performance of a transaction did not render it a transaction of sale. For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case, the court has to find out the primary object of the transaction and the intention of the parties while entering into it. It may, in some cases, be that even while entering into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work of performing the service. In such cases the transaction would not be one and indivisible, but would form two separate agreements - one of work or service and the other of sale. 11. Therefore, from the above decisions it follows that in order to be sale taxable to duty, not only the property in the goods should pass from the contractor to the government, or the appellant in this case but there should be an independent contract - separate and distinct - apart from mere passing of the property where a party purchases or procures goods from the government. Mere passing of property from the contractor to the government would not suffice. There must be sale of goods. The primary object of the bargain judged in its entirety must be viewed. In the instant case, Clause 10 is significant as we have set out hereinbefore. For the purpose of performance, the contractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the contractor to be used for the purpose of performing the contract only. The value of such quantity of materials and stores so supplied was specified at a rate and got set-off or deducted from any sum due or to become due thereafter to the contractor. Mr. Virmani, appearing for the appellant submitted before us that in the instant case, there was no such independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is no inherent sale; a sale inheres from the transaction. Clause 10 read in the proper light indicates that position12. Our attention was drawn to a Bench decision of the Kerala High Court in Construction Company, Changanacherry v. State of Kerala (36 STC 320 (Ker HC)), wherein on a consideration of the contract the court came to the conclusion that the consideration stipulated to be paid to the petitioner in that case for the work which the petitioner had undertaken to perform and not by way of sale price of the poles to be produced and delivered by the petitioner. Therefore, it was held that the petitioner was not liable to sales tax. Mr. Virmani also drew our attention to a Division Bench decision of the Calcutta High Court in Cementation Patel (Durgapur) v. CCT (47 STC 385 (Cal HC)). There, on consideration of the transaction entered into between the parties the court came to the conclusion that the property in the materials all along remained with the Government of India and whatever was the nature of the transaction involved between the assessee on the one hand and the other members of the consortium or the sub-contractors on the other, the same did not and could not amount to sale as the assessee could not in the facts of that case transfer the property therein. In the instant case, by use or consumption of materials in the work of construction, there was passing of the property in the goods to the assessee from the PWD. By appropriation and by the agreement, there was a sale as envisaged in terms of Clause 10 set out hereinbefore. Therefore, in our opinion, there was a sale which was liable to tax.
### Response:
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### Explanation:
11. Therefore, from the above decisions it follows that in order to be sale taxable to duty, not only the property in the goods should pass from the contractor to the government, or the appellant in this case but there should be an independent contractseparate and distinctapart from mere passing of the property where a party purchases or procures goods from the government. Mere passing of property from the contractor to the government would not suffice. There must be sale of goods. The primary object of the bargain judged in its entirety must be viewed. In the instant case, Clause 10 is significant as we have set out hereinbefore. For the purpose of performance, the contractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the contractor to be used for the purpose of performing the contract only. The value of such quantity of materials and stores so supplied was specified at a rate and gotor deducted from any sum due or to become due thereafter to the contractor. Mr. Virmani, appearing for the appellant submitted before us that in the instant case, there was no such independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is no inherent sale; a sale inheres from the transaction. Clause 10 read in the proper light indicates that position12. Our attention was drawn to a Bench decision of the Kerala High Court in Construction Company, Changanacherry v. State of Kerala (36 STC 320 (Ker HC)), wherein on a consideration of the contract the court came to the conclusion that the consideration stipulated to be paid to the petitioner in that case for the work which the petitioner had undertaken to perform and not by way of sale price of the poles to be produced and delivered by the petitioner. Therefore, it was held that the petitioner was not liable to sales tax. Mr. Virmani also drew our attention to a Division Bench decision of the Calcutta High Court in Cementation Patel (Durgapur) v. CCT (47 STC 385 (Cal HC)). There, on consideration of the transaction entered into between the parties the court came to the conclusion that the property in the materials all along remained with the Government of India and whatever was the nature of the transaction involved between the assessee on the one hand and the other members of the consortium or theon the other, the same did not and could not amount to sale as the assessee could not in the facts of that case transfer the property therein. In the instant case, by use or consumption of materials in the work of construction, there was passing of the property in the goods to the assessee from the PWD. By appropriation and by the agreement, there was a sale as envisaged in terms of Clause 10 set out hereinbefore. Therefore, in our opinion, there was a sale which was liable to tax
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Munshi Ram Vs. Collector of Central Excise and Land Customs, New Delhi | M. Hidayatullah, J.1. Munshi Ram whose petition under Article 226 of the Constitution was dismissed summarily by the High Court of Punjab and who appeals by special leave was ordered to pay Rs. 1, 20, 000/- as penalty under Section 167(8) of the Sea Customs Act read with Section 19 ibid. and Section 23A of the Foreign Exchange Regulation Act, 1947 in respect of 450 tolas of gold found on search of houses Nos. 14 and 15 of Ganganagar, Rajasthan.2. On the night between the 2nd and 3rd March, 1958 the appellant was accosted at village Kehri in India near the India-Pakistan border by the R.A.C. constables. A sum of Rs. 45/- was found on his person, but on the person of his servant Keru a sum of Rs. 22, 800/- was found. This amount was seized by the Customs authorities and on information being given to the Deputy Superintendent, Land Customs, Ganganagar, Mr. J. N. Gaur, Inspector of Customs was authorised and obtained a search warrant from a Magistrate and searched House No. 15. In that search some ammunition and 30 tolas of contraband opium were seized. Report of this was made to the police and the police obtained a warrant under Section 19/20 of the Indian Arms Act (Act XI of 1878) and searched Blocks Nos. 13, 14, 15 and 16. At that search the Magistrate was present as also a large body of Customs and Excise Officers. In this search 420 tolas of gold were found at House No. 14 and 30 tolas at House No. 15. These were made over to the Customs authorities for being dealt with by them. The search also revealed enormous quantities of ammunition, opium and charas as well. He was prosecuted in respect of the other seizures and was convicted and sentenced to a days imprisonment under the Arms Act but was acquitted in respect of some of the other charges. We are not concerned with them. A notice to show cause was issued to Munshi Ram and penalty was imposed upon him in respect of 450 tolas of gold. He filed the petition under Article 226 of the Constitution which the High Court summarily dismissed.3. By the petition Munshi Ram contended that he was not given any hearing before the penalty was imposed, that penalty in excess of Rs. 1, 000/- was illegal, that Section 167(8) offended Article 14 of the Constitution and that Section 178A of the Sea Customs Act under which he was required to prove that the gold was not smuggled into India was ultra vires clauses (f) and (g) of Article 19. None of these points was pressed at the hearing before us. Munshi Ram contended before us that the places where gold was seized were not in his possession, but the finding of the Customs authorities is that the houses belong to him. There is evidence to show that he walked at the head of the search party and pointed out the places where gold lay buried and it was then dug out. These are findings of fact by the appropriate authorities. They must be accepted as correct and we cannot be asked to go into facts again. Lastly it was contended that the first warrant issued in the name of Mr. J. N. Gaur had exhausted itself after the search of House No. 15 and thereafter the search was carried out by the police under the Arms Act and the seizure of gold by the police could not attract Section 178A of the Sea Customs Act. There is no trace of such a point in the petition and it appears to have been raised for the first time in this appeal perhaps because the other points mentioned earlier stand concluded against the appellant by several decisions of this Court. The point now sought to be raised is not one on which an affidavit by the opposite side would not have been necessary if the High Court had considered it good and allowed it to be taken to trial.4. We cannot allow this new point to be raised because to do so would be to hear the appeal on a point which the High Court was not even called upon to consider.5. | 0[ds]3. By the petition Munshi Ram contended that he was not given any hearing before the penalty was imposed, that penalty in excess of Rs. 1, 000/was illegal, that Section 167(8) offended Article 14 of the Constitution and that Section 178A of the Sea Customs Act under which he was required to prove that the gold was not smuggled into India was ultra vires clauses (f) and (g) of Article 19. None of these points was pressed at the hearing before us. Munshi Ram contended before us that the places where gold was seized were not in his possession, but the finding of the Customs authorities is that the houses belong to him. There is evidence to show that he walked at the head of the search party and pointed out the places where gold lay buried and it was then dug out. These are findings of fact by the appropriate authorities. They must be accepted as correct and we cannot be asked to go into facts again. Lastly it was contended that the first warrant issued in the name of Mr. J. N. Gaur had exhausted itself after the search of House No. 15 and thereafter the search was carried out by the police under the Arms Act and the seizure of gold by the police could not attract Section 178A of the Sea Customs Act. There is no trace of such a point in the petition and it appears to have been raised for the first time in this appeal perhaps because the other points mentioned earlier stand concluded against the appellant by several decisions of this Court. The point now sought to be raised is not one on which an affidavit by the opposite side would not have been necessary if the High Court had considered it good and allowed it to be taken to trial.We cannot allow this new point to be raised because to do so would be to hear the appeal on a point which the High Court was not even called upon to consider. | 0 | 777 | 370 | ### 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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M. Hidayatullah, J.1. Munshi Ram whose petition under Article 226 of the Constitution was dismissed summarily by the High Court of Punjab and who appeals by special leave was ordered to pay Rs. 1, 20, 000/- as penalty under Section 167(8) of the Sea Customs Act read with Section 19 ibid. and Section 23A of the Foreign Exchange Regulation Act, 1947 in respect of 450 tolas of gold found on search of houses Nos. 14 and 15 of Ganganagar, Rajasthan.2. On the night between the 2nd and 3rd March, 1958 the appellant was accosted at village Kehri in India near the India-Pakistan border by the R.A.C. constables. A sum of Rs. 45/- was found on his person, but on the person of his servant Keru a sum of Rs. 22, 800/- was found. This amount was seized by the Customs authorities and on information being given to the Deputy Superintendent, Land Customs, Ganganagar, Mr. J. N. Gaur, Inspector of Customs was authorised and obtained a search warrant from a Magistrate and searched House No. 15. In that search some ammunition and 30 tolas of contraband opium were seized. Report of this was made to the police and the police obtained a warrant under Section 19/20 of the Indian Arms Act (Act XI of 1878) and searched Blocks Nos. 13, 14, 15 and 16. At that search the Magistrate was present as also a large body of Customs and Excise Officers. In this search 420 tolas of gold were found at House No. 14 and 30 tolas at House No. 15. These were made over to the Customs authorities for being dealt with by them. The search also revealed enormous quantities of ammunition, opium and charas as well. He was prosecuted in respect of the other seizures and was convicted and sentenced to a days imprisonment under the Arms Act but was acquitted in respect of some of the other charges. We are not concerned with them. A notice to show cause was issued to Munshi Ram and penalty was imposed upon him in respect of 450 tolas of gold. He filed the petition under Article 226 of the Constitution which the High Court summarily dismissed.3. By the petition Munshi Ram contended that he was not given any hearing before the penalty was imposed, that penalty in excess of Rs. 1, 000/- was illegal, that Section 167(8) offended Article 14 of the Constitution and that Section 178A of the Sea Customs Act under which he was required to prove that the gold was not smuggled into India was ultra vires clauses (f) and (g) of Article 19. None of these points was pressed at the hearing before us. Munshi Ram contended before us that the places where gold was seized were not in his possession, but the finding of the Customs authorities is that the houses belong to him. There is evidence to show that he walked at the head of the search party and pointed out the places where gold lay buried and it was then dug out. These are findings of fact by the appropriate authorities. They must be accepted as correct and we cannot be asked to go into facts again. Lastly it was contended that the first warrant issued in the name of Mr. J. N. Gaur had exhausted itself after the search of House No. 15 and thereafter the search was carried out by the police under the Arms Act and the seizure of gold by the police could not attract Section 178A of the Sea Customs Act. There is no trace of such a point in the petition and it appears to have been raised for the first time in this appeal perhaps because the other points mentioned earlier stand concluded against the appellant by several decisions of this Court. The point now sought to be raised is not one on which an affidavit by the opposite side would not have been necessary if the High Court had considered it good and allowed it to be taken to trial.4. We cannot allow this new point to be raised because to do so would be to hear the appeal on a point which the High Court was not even called upon to consider.5.
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3. By the petition Munshi Ram contended that he was not given any hearing before the penalty was imposed, that penalty in excess of Rs. 1, 000/was illegal, that Section 167(8) offended Article 14 of the Constitution and that Section 178A of the Sea Customs Act under which he was required to prove that the gold was not smuggled into India was ultra vires clauses (f) and (g) of Article 19. None of these points was pressed at the hearing before us. Munshi Ram contended before us that the places where gold was seized were not in his possession, but the finding of the Customs authorities is that the houses belong to him. There is evidence to show that he walked at the head of the search party and pointed out the places where gold lay buried and it was then dug out. These are findings of fact by the appropriate authorities. They must be accepted as correct and we cannot be asked to go into facts again. Lastly it was contended that the first warrant issued in the name of Mr. J. N. Gaur had exhausted itself after the search of House No. 15 and thereafter the search was carried out by the police under the Arms Act and the seizure of gold by the police could not attract Section 178A of the Sea Customs Act. There is no trace of such a point in the petition and it appears to have been raised for the first time in this appeal perhaps because the other points mentioned earlier stand concluded against the appellant by several decisions of this Court. The point now sought to be raised is not one on which an affidavit by the opposite side would not have been necessary if the High Court had considered it good and allowed it to be taken to trial.We cannot allow this new point to be raised because to do so would be to hear the appeal on a point which the High Court was not even called upon to consider.
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Director of Income Tax Vs. M/s Bharat Diamond Bourse | arrived at by the assessing officer and the appellate authority to the effect that Rs. 70 lakhs were lent to Bharat S. Shah for substantial periods during the previous years pertaining to the relevant assessment years, without interest and without adequate security. ISSUE ‘B’ 40. The next question to be addressed is: Even assuming Rs. 70 lakhs was lent to Bharat Shah, is he a person who falls within the meaning of Section 13(3)(a) or 13(3)(cc) of the Act? 41. Section 13(3)(a) speaks of the author of the trust or the "founder of the institution". The respondent is not a trust registered under the law applicable to be trusts. That it is an institution cannot be gainsaid. It is a corporate body registered under the provisions of the Companies Act, 1956 as a company limited by guarantee. Bharat Shah was one of the subscribers to its memorandum of association and was also the secretary of the Managing Committee of the Company. 42. The Articles of Association of the assessee do not envisage any special powers in the secretary so as to make him a "manager" of the Company within the meaning of Section 2(24) of the Companies Act.43. Learned counsel for the assessee urges that merely because the Bharat Shah was a signatory of ; the Memorandum of Association by which the company was incorporated, it cannot be contended that he is a "founder" of the institution. According to the learned counsel, a founder must be someone who has substantially contributed financially or by physical efforts to set up an institution or must be a leading person who plays an important role in the functioning of the institution; he must be an originator of the institution. Sub-section (3)(A) of Section 13 speaks of the ‘author of the trust’ and ‘founder of the institution’. The words used therein take colour from each other, in the submission of the learned counsel. 44. Counsel relied on the meaning of the word "Founder" and "Foundation" in Black’s Dictionary of Law, as found in 4th Edition: 45. "Founder" - "a person who endows an eleemosynary corporation or institution, or supplies the funds for its establishment." 46. "Foundation" - "the founding or building of a college or hospital. The incorporation or endowment of a college or hospital is the foundation; and he who endows it with land or other property is the founder." 47. He also relied on the meaning of the expression in "Corpus Juris Secundum" Volume XXXVII, page 37, which is: 48. "Founder’s shares in English company law, shares issued to the founders of, or vendors to, a public company as a part of the consideration for the business, or concession, etc., taken over, and not forming a part of, the ordinary capital." 49. The meaning of expression "Founder" highlighted by the learned counsel is with reference only to an institution of eleemosynary. Eleemosynary is a charitable object intended to provide for relief from distress to humans based on Christian values. In the case of the assessee, it is not recognized as a ‘charity’ because of the element of eleemosynary; it is recognized as a ‘charity’ because of the extended meaning ascribed to the concept of charity under the Act as its predominant object is an "object of general public value". The test to ascertain the founder of an institution for eleemosynary need not be valid to ascertain the founder of an institution of other kinds. 50. In our view, the term "founder of the Institution" used in Section 13 (1) means no more nor less than what it says. The expression "founder" means what is understood in ordinary parlance - the originator or the person responsible for the establishment of the institution. The Concise Oxford Dictionary, New Seventh Edition, Page 388, defines the expression "founder" as "one who founds an institution" and the verb "found" to mean "lay base of; be original builder, begin building of, set up, establish, originate, initiate, construct, base." The Collins Cobuild English Dictionary, New Edition, Page 670 gives meaning of the term "Founder" as "The founder of the institution, organisation, or building is the person who got it started or caused it to be built often by providing necessary money" and the verb "found" means "when an institution, company, or organization is founded by someone or by a group of people, they get it started, often by providing the necessary money."51. We are hence of the view that the expression "founder of the institution" used in Section 13 (1) (a) means that the person concerned should be the originator of the institution, or at least one of the persons responsible for the coming into existence of the institution. In our judgment, contribution of money is not an inexorable test of a person being a "founder" though, it might happen often that person who originates an institution may often also fund it.52. In the case of the assessee, we are of the view that Bharat Shah, along with several others, founded the company as all of them were subscribers of its Memorandum of Association. It is by their acts that the company got incorporated under the provisions of the Companies Act and was thus born. May be that Bharat Shah did not contribute any money, apart from the guarantee given as the company is one limited by guarantee. That hardly makes any difference to the situation and Bharat Shah would very much answer the description "founder of institution" used in Section 13 (3) (a) of the Act. That there may be others also is irrelevant and immaterial for the purpose of this appeal. In fact, a reading of Section 13 (3) and the contrast between clauses (a) and (b) brings home the distinction made by the Act between the founder of the institution and the person who has made substantial contribution to the institution. We are, therefore, unable to accept the contention of the learned counsel for the assessee that Bharat Shah was not a founder of the institution. | 1[ds]17. The revenue authorities have concurrently held that, taking an overall view, the dominant objects of the assessee are charitable as the dominant object is one of general public utility and, therefore, the assessee is entitled to be registered as an institution established for charitable purpose within the meaning of Section 2(15) of theagree with the view taken by the Tribunal as well as the High Court that the assessee was rightly registered under Section 11 by treating it as in institution establishment for charitable purpose within the meaning of Section 2(15) of the Act.In the previous years relevant to the assessment yearthe assessee had advanced an amount of Rs. 70 lakhs to one Bharat Shah without interest and security and even without entering into a written agreement with the said Bharat Shah. The said Bharat Shah was one of the signatories to the Memorandum of Association of the Assessing Company and also the Honorary Secretary of the Institution. For the reason, the assessing officer was of the view that Bharat Shah was a person belonging to the prohibited category within the meaning of Section 13(3)(a) and 13(3)(cc) and since income or property of the institution had been lent to such a person for any time during the previous years relevant to Assessment Years1, without adequate security and adequate interest, the legal fiction in(2) of Section 13 would come into play and the income or property of the institution shall, for the purpose of Clause (d) of(1) of Section 13, be deemed to have been applied for the benefit of the prohibited category of persons under(3). Consequently, the benefit of exemption under Section 11 was lost by reasons of Sectionappears to us this is one of those exceptional cases where the correct conclusion recorded by the assessing officer, and affirmed by the appellate authority, had been reversed by the tribunal on account of perverse reasoning, as we shall presently see. It is difficult to believe that the Assessee, a limited company, could take a corporate decision of handing over a large sum to the extend of Rs. 70 lakhs to anyone without proper documentation. Mr. Dastur placed before us some such documents in an effort to persuade us that everything was above board. We shall scanthe terms were not even recorded in an agreement. It strainscredulousness that seasoned businessmen parted with a large sum of Rs. 70 lakhs to Bharat Shah without any agreement under the which the amount was being paid and without settling the terms of the lease. This in itself should have been sufficient for the Assessing Officer to take a different view as to the real nature of the transaction.34. As on the date on which the money was paid to Bharat Shah, it was neither intended as deposit for lease of premises, nor was it intended as deposit to be paid to the builder. There is no evidence that any premises were procured or agreed to be procured in the name of the Bourse from any builder. Thename is not known till today. If at all there was any substance in the story that Bharat Shah was merely negotiating on behalf of the assessee for procurement of suitable premises, the lease for the premises, the ownership of the premises or the lease rights would be in favour of the respondent assessee with the builder as lessor or seller. The assessing officer was, therefore, justified in concluding that the amount of Rs. 70 lacs, when it was paid to Bharat Shah, was clearly intended for his buying the premises in Diamond Plaza building which in turn, may have been made available by way of ato the respondent. If this be so, then the payment to Bharat Shah could hardly be a deposit. The stand of the respondent is completely belied by Bharatstatement made pursuant to the summons under Section 131 of thematerial on record, in our view, clearly suggests that the amount paid to Bharat Shah did not carry the stamp of a deposit but was merely intended to enable him to purchase a property in his own name, though there might have been a tacit understanding that he would make it available as and when purchased, by way of a lease, the terms of which were indefinite. To that extent, therefore, the conclusion of the assessing officer that it was a colourable transaction appears to bethe instant case, the amount was given to Bharat Shah, but he later on refused to return the amount, resulting in a dispute between the parties culminating in an arbitration award under which Bharat Shah paid back the amount with 9% interest, without even challenging the award. The appellate authority was of the view that, whatever be the arrangement, the assessee had made available the sum of Rs. 70 lacs and permitted Bharat Shah to utilize it for a substantial period and, therefore, there was breach of Section 13(1).38. In our view, the reasoning of the tribunal for reversing the concurrent findings of the assessing officer and the appellate authority, is entirely perverse. The tribunal seems to have accepted the facile explanation given by the assessee, perhaps manufactured post facto the assessment order, without critical appraisal. We are surprised that the entire agreement between Bharat Shah and the assessee was supposed to be an oral agreement, which was supposed to have been terminated orally with Bharat Shah being orally called upon to return the money with interest of 12% which he is said to have refused. In our view, this story does not ring true and could not have been accepted by any reasonable person, instructed in law. It is wholly unnatural, because one does not expectbusinessmen to part with an amount of 70 lacs without even recording an agreement under which it is paid, nor without agreeing upon the precise terms of the lease. The story rings false from beginning to end, and yet, the tribunal accepted it by saying, "As regards the bona fides of the transaction, in our opinion, there is nothing to suspect the same." The tribunal says, "there is a transparency about the entire transaction which nullifies any attempt to make out the transaction as somethingunusual and out of the ordinary." That diamonds are not transparent, that they dazzle with a brilliance that binds the eye, seems to have escaped the notice of the Tribunal. It undiscreningly accepted the glib explanation of the assessee, though teeming with improbabilities and strenuous on credulity,39. We, therefore, are of the view that theconclusion on this issue are perverse and need to be interfered with. We affirm the conclusions arrived at by the assessing officer and the appellate authority to the effect that Rs. 70 lakhs were lent to Bharat S. Shah for substantial periods during the previous years pertaining to the relevant assessment years, without interest and without adequate security.In our view, the term "founder of the Institution" used in Section 13 (1) means no more nor less than what it says. The expression "founder" means what is understood in ordinary parlancethe originator or the person responsible for the establishment of the institution. The Concise Oxford Dictionary, New Seventh Edition, Page 388, defines the expression "founder" as "one who founds an institution" and the verb "found" to mean "lay base of; be original builder, begin building of, set up, establish, originate, initiate, construct, base." The Collins Cobuild English Dictionary, New Edition, Page 670 gives meaning of the term "Founder" as "The founder of the institution, organisation, or building is the person who got it started or caused it to be built often by providing necessary money" and the verb "found" means "when an institution, company, or organization is founded by someone or by a group of people, they get it started, often by providing the necessary money."51. We are hence of the view that the expression "founder of the institution" used in Section 13 (1) (a) means that the person concerned should be the originator of the institution, or at least one of the persons responsible for the coming into existence of the institution. In our judgment, contribution of money is not an inexorable test of a person being a "founder" though, it might happen often that person who originates an institution may often also fund it.52. In the case of the assessee, we are of the view that Bharat Shah, along with several others, founded the company as all of them were subscribers of its Memorandum of Association. It is by their acts that the company got incorporated under the provisions of the Companies Act and was thus born. May be that Bharat Shah did not contribute any money, apart from the guarantee given as the company is one limited by guarantee. That hardly makes any difference to the situation and Bharat Shah would very much answer the description "founder of institution" used in Section 13 (3) (a) of the Act. That there may be others also is irrelevant and immaterial for the purpose of this appeal. In fact, a reading of Section 13 (3) and the contrast between clauses (a) and (b) brings home the distinction made by the Act between the founder of the institution and the person who has made substantial contribution to the institution. We are, therefore, unable to accept the contention of the learned counsel for the assessee that Bharat Shah was not a founder of the institution. | 1 | 7,084 | 1,791 | ### 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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arrived at by the assessing officer and the appellate authority to the effect that Rs. 70 lakhs were lent to Bharat S. Shah for substantial periods during the previous years pertaining to the relevant assessment years, without interest and without adequate security. ISSUE ‘B’ 40. The next question to be addressed is: Even assuming Rs. 70 lakhs was lent to Bharat Shah, is he a person who falls within the meaning of Section 13(3)(a) or 13(3)(cc) of the Act? 41. Section 13(3)(a) speaks of the author of the trust or the "founder of the institution". The respondent is not a trust registered under the law applicable to be trusts. That it is an institution cannot be gainsaid. It is a corporate body registered under the provisions of the Companies Act, 1956 as a company limited by guarantee. Bharat Shah was one of the subscribers to its memorandum of association and was also the secretary of the Managing Committee of the Company. 42. The Articles of Association of the assessee do not envisage any special powers in the secretary so as to make him a "manager" of the Company within the meaning of Section 2(24) of the Companies Act.43. Learned counsel for the assessee urges that merely because the Bharat Shah was a signatory of ; the Memorandum of Association by which the company was incorporated, it cannot be contended that he is a "founder" of the institution. According to the learned counsel, a founder must be someone who has substantially contributed financially or by physical efforts to set up an institution or must be a leading person who plays an important role in the functioning of the institution; he must be an originator of the institution. Sub-section (3)(A) of Section 13 speaks of the ‘author of the trust’ and ‘founder of the institution’. The words used therein take colour from each other, in the submission of the learned counsel. 44. Counsel relied on the meaning of the word "Founder" and "Foundation" in Black’s Dictionary of Law, as found in 4th Edition: 45. "Founder" - "a person who endows an eleemosynary corporation or institution, or supplies the funds for its establishment." 46. "Foundation" - "the founding or building of a college or hospital. The incorporation or endowment of a college or hospital is the foundation; and he who endows it with land or other property is the founder." 47. He also relied on the meaning of the expression in "Corpus Juris Secundum" Volume XXXVII, page 37, which is: 48. "Founder’s shares in English company law, shares issued to the founders of, or vendors to, a public company as a part of the consideration for the business, or concession, etc., taken over, and not forming a part of, the ordinary capital." 49. The meaning of expression "Founder" highlighted by the learned counsel is with reference only to an institution of eleemosynary. Eleemosynary is a charitable object intended to provide for relief from distress to humans based on Christian values. In the case of the assessee, it is not recognized as a ‘charity’ because of the element of eleemosynary; it is recognized as a ‘charity’ because of the extended meaning ascribed to the concept of charity under the Act as its predominant object is an "object of general public value". The test to ascertain the founder of an institution for eleemosynary need not be valid to ascertain the founder of an institution of other kinds. 50. In our view, the term "founder of the Institution" used in Section 13 (1) means no more nor less than what it says. The expression "founder" means what is understood in ordinary parlance - the originator or the person responsible for the establishment of the institution. The Concise Oxford Dictionary, New Seventh Edition, Page 388, defines the expression "founder" as "one who founds an institution" and the verb "found" to mean "lay base of; be original builder, begin building of, set up, establish, originate, initiate, construct, base." The Collins Cobuild English Dictionary, New Edition, Page 670 gives meaning of the term "Founder" as "The founder of the institution, organisation, or building is the person who got it started or caused it to be built often by providing necessary money" and the verb "found" means "when an institution, company, or organization is founded by someone or by a group of people, they get it started, often by providing the necessary money."51. We are hence of the view that the expression "founder of the institution" used in Section 13 (1) (a) means that the person concerned should be the originator of the institution, or at least one of the persons responsible for the coming into existence of the institution. In our judgment, contribution of money is not an inexorable test of a person being a "founder" though, it might happen often that person who originates an institution may often also fund it.52. In the case of the assessee, we are of the view that Bharat Shah, along with several others, founded the company as all of them were subscribers of its Memorandum of Association. It is by their acts that the company got incorporated under the provisions of the Companies Act and was thus born. May be that Bharat Shah did not contribute any money, apart from the guarantee given as the company is one limited by guarantee. That hardly makes any difference to the situation and Bharat Shah would very much answer the description "founder of institution" used in Section 13 (3) (a) of the Act. That there may be others also is irrelevant and immaterial for the purpose of this appeal. In fact, a reading of Section 13 (3) and the contrast between clauses (a) and (b) brings home the distinction made by the Act between the founder of the institution and the person who has made substantial contribution to the institution. We are, therefore, unable to accept the contention of the learned counsel for the assessee that Bharat Shah was not a founder of the institution.
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was, therefore, justified in concluding that the amount of Rs. 70 lacs, when it was paid to Bharat Shah, was clearly intended for his buying the premises in Diamond Plaza building which in turn, may have been made available by way of ato the respondent. If this be so, then the payment to Bharat Shah could hardly be a deposit. The stand of the respondent is completely belied by Bharatstatement made pursuant to the summons under Section 131 of thematerial on record, in our view, clearly suggests that the amount paid to Bharat Shah did not carry the stamp of a deposit but was merely intended to enable him to purchase a property in his own name, though there might have been a tacit understanding that he would make it available as and when purchased, by way of a lease, the terms of which were indefinite. To that extent, therefore, the conclusion of the assessing officer that it was a colourable transaction appears to bethe instant case, the amount was given to Bharat Shah, but he later on refused to return the amount, resulting in a dispute between the parties culminating in an arbitration award under which Bharat Shah paid back the amount with 9% interest, without even challenging the award. The appellate authority was of the view that, whatever be the arrangement, the assessee had made available the sum of Rs. 70 lacs and permitted Bharat Shah to utilize it for a substantial period and, therefore, there was breach of Section 13(1).38. In our view, the reasoning of the tribunal for reversing the concurrent findings of the assessing officer and the appellate authority, is entirely perverse. The tribunal seems to have accepted the facile explanation given by the assessee, perhaps manufactured post facto the assessment order, without critical appraisal. We are surprised that the entire agreement between Bharat Shah and the assessee was supposed to be an oral agreement, which was supposed to have been terminated orally with Bharat Shah being orally called upon to return the money with interest of 12% which he is said to have refused. In our view, this story does not ring true and could not have been accepted by any reasonable person, instructed in law. It is wholly unnatural, because one does not expectbusinessmen to part with an amount of 70 lacs without even recording an agreement under which it is paid, nor without agreeing upon the precise terms of the lease. The story rings false from beginning to end, and yet, the tribunal accepted it by saying, "As regards the bona fides of the transaction, in our opinion, there is nothing to suspect the same." The tribunal says, "there is a transparency about the entire transaction which nullifies any attempt to make out the transaction as somethingunusual and out of the ordinary." That diamonds are not transparent, that they dazzle with a brilliance that binds the eye, seems to have escaped the notice of the Tribunal. It undiscreningly accepted the glib explanation of the assessee, though teeming with improbabilities and strenuous on credulity,39. We, therefore, are of the view that theconclusion on this issue are perverse and need to be interfered with. We affirm the conclusions arrived at by the assessing officer and the appellate authority to the effect that Rs. 70 lakhs were lent to Bharat S. Shah for substantial periods during the previous years pertaining to the relevant assessment years, without interest and without adequate security.In our view, the term "founder of the Institution" used in Section 13 (1) means no more nor less than what it says. The expression "founder" means what is understood in ordinary parlancethe originator or the person responsible for the establishment of the institution. The Concise Oxford Dictionary, New Seventh Edition, Page 388, defines the expression "founder" as "one who founds an institution" and the verb "found" to mean "lay base of; be original builder, begin building of, set up, establish, originate, initiate, construct, base." The Collins Cobuild English Dictionary, New Edition, Page 670 gives meaning of the term "Founder" as "The founder of the institution, organisation, or building is the person who got it started or caused it to be built often by providing necessary money" and the verb "found" means "when an institution, company, or organization is founded by someone or by a group of people, they get it started, often by providing the necessary money."51. We are hence of the view that the expression "founder of the institution" used in Section 13 (1) (a) means that the person concerned should be the originator of the institution, or at least one of the persons responsible for the coming into existence of the institution. In our judgment, contribution of money is not an inexorable test of a person being a "founder" though, it might happen often that person who originates an institution may often also fund it.52. In the case of the assessee, we are of the view that Bharat Shah, along with several others, founded the company as all of them were subscribers of its Memorandum of Association. It is by their acts that the company got incorporated under the provisions of the Companies Act and was thus born. May be that Bharat Shah did not contribute any money, apart from the guarantee given as the company is one limited by guarantee. That hardly makes any difference to the situation and Bharat Shah would very much answer the description "founder of institution" used in Section 13 (3) (a) of the Act. That there may be others also is irrelevant and immaterial for the purpose of this appeal. In fact, a reading of Section 13 (3) and the contrast between clauses (a) and (b) brings home the distinction made by the Act between the founder of the institution and the person who has made substantial contribution to the institution. We are, therefore, unable to accept the contention of the learned counsel for the assessee that Bharat Shah was not a founder of the institution.
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State Of Mysore & Anr Vs. Pendakur Virupanna Setty & Sons & A | Bill 1958 when it was introduced in the Mysore legislature there was mention only of the Act as amended by the Madras legislature in 1955 being in force in South Kanara district. The entire reading of the statement shows that whatever changes in law and the validation provisions which were being made were confined only to the levy of a cess by way of sales tax by the South Kanara Market Committee. (2) The Amending Act of 1958 was made applicable only to what was called the "Madras Area." This area could have reference only to the South Kanara district with the exception of the specified areas which was a part of the State of Madras immediately before the States Reorganisation Act of 1956. It would be stretching the language too far to include in it the Bellary district which had ceased to be a part of the State of Madras much earlier than 1953. The adaptation made in the Mysore General Clauses Act, 1899 by virtue of the provisions contained in the States Reorganisation Act, 1956 defined "Madras Area" to mean the territory specified in Clause (d) of subsection (1) of Section 7 of that Act. That would, as stated before, comprise only the territory of South Kanara district with the exception of specified areas. The reasoning of the High Court that the definition given in the General Clauses Act should not be applied to the expression "Madras Area" in the Amending Act of 1958 can by no means be sustained. (3) The distinction between what may be called the "Bellary Area" and the "Madras Area" which came to be incorporated in the State of Mysore in 1953 and 1956 respectively is fully substantiated by Section 154 of the Mysore Act 27 of 1966. It is stated there in unambiguous language that the Act as in force in the Bellary district and as in force in the "Madras Area" was being repealed. If "Madras Area" also included the Bellary district as is the view of the High Court there was no question of Section 154 being worded as it is, making it quite clear, that the Act as applicable in Bellary district, was not the same as in force in the "Madras Area". (4) The bye-laws of the Bellary Market Committee which were framed in exercise of the powers conferred by Section 19 of the Act read with the Madras Commercial Crops Market Rules 1948 give an indication that the Amending Act of 1958 was not applicable to the Bellary district. These bye-laws were approved in May,1960. Under bye-law 19 the Market Committee could levy fee or cess on the notified crops or commodities at the rates specified in the schedule. The schedule included cotton bales, loose cotton, kapas, groundnut seeds, groundnut pods and various other commodities. The Amending Act of 1958 specified the rates of only two commodities Arecanut and Coconut. These are not to be found in the schedule of the bye-laws of the Bellary Market Committee. In the bye-laws of the South Kanara Market Committee which came into force on July 1, 1955 these two commodities namely, Arecanut and Coconut are the principal if not the only, commodities which figure. The suggestion which has been made at the bar and which does not seem to be without substance is that in the South Kanara district these are the only or the principal commodities which constitute commercial crops; whereas in the Bellary district there are other commodities mentioned in the bye-laws which do not include these two that constitute commercial crops. Certain notifications have also been produced which show that rice, paddy etc., were declared to be commercial crops for the purpose of the Act even in the "Madras Area". But the bye-laws as also the Amending Act of 1958 seem to show that Arecanut and Coconut are the main or the principal commodities in the "Madras Area" and these commodities, according to the bye-laws, are confined to South Kanara district and are not included as commercial crops in the Bellary district at all. 10. Once, it is held that the Mysore Amending Act of 1958 did not apply to the Bellary district only fee could be levied under Section 11 (1) of the Act as it originally stood. Under bye-law 19 the rate specified for groundnut seeds was 9 paise per kilogram. The notice sent by the Market Committee making the demand from the respondents employed the word "cess" but that cannot stand in the way of it being held that the demand related to a fee which alone could be levied under Section 11 (1) of the Act. The, finding of the High Court was that the cess demanded was a sales tax since it was levied under Section 11 (1) of the Act as amended by the Amending Act of 1958. It was observed that if it was not a cess the question that remained to be considered was whether the cess demanded was a fee and if so whether the levy of the fee was open to criticism that it was not correlated to the services rendered. 11. As it has been determined by us that the demand by the Market Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee and a tax is well known and there are a series of decisions of this Court on what is a fee and what are the tests which distinguish it from a tax. See Delhi Cloth and General Mills Co. Ltd. v. Chief Commr., Delhi, (1970) 2 SCR 348 = (AIR 1971 SC 344 ). The High Court will no doubt afford the parties an opportunity of filing supplementary affidavits and document, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions will have to be disposed of in accordance with law. | 1[ds]8. It may be observed at this stage that the attention of the High Court does not appear to have been drawn to several matters including Section 154 of the Mysore Act 27 of 1966. Indeed before us also these matters escaped the notice of the counsel until more information was obtained under our directions which necessitated a rehearing of the case9. We have no manner of doubt that the Bellary district which became a part of the State of Mysore as a result of the Central Act 30 of 1953 was governed by Section 11 (1) of the Act as it stood at the time it had become applicable to that area by virtue of Section 53 of the aforesaid Central Act of 1953. The amendment made by the Mysore legislature in 1958 by whichsubsection(1) of Section 11 was substituted by a new section did not apply to the Bellary district and was confined only to the Madras Area which meant the district of South Kanara with the exception of specified areas. We now proceed to give our reasons for coming to the above conclusion. (1) In the statement of objects and reasons relating to the Madras Commercial Crops Markets . (Mysore Amendment and Validation of Levy of Cess) Bill 1958 when it was introduced in the Mysore legislature there was mention only of the Act as amended by the Madras legislature in 1955 being in force in South Kanara district. The entire reading of the statement shows that whatever changes in law and the validation provisions which were being made were confined only to the levy of a cess by way of sales tax by the South Kanara Market Committee. (2) The Amending Act of 1958 was made applicable only to what was called the "Madras Area." This area could have reference only to the South Kanara district with the exception of the specified areas which was a part of the State of Madras immediately before the States Reorganisation Act of 1956. It would be stretching the language too far to include in it the Bellary district which had ceased to be a part of the State of Madras much earlier than 1953. The adaptation made inthe Mysore General Clauses Act, 1899 by virtue of the provisions contained inthe States Reorganisation Act, 1956 defined "Madras Area" to mean the territory specified in Clause (d) ofsubsection(1) of Section 7 of that Act. That would, as stated before, comprise only the territory of South Kanara district with the exception of specified areas. The reasoning of the High Court that the definition given in the General Clauses Act should not be applied to the expression "Madras Area" in the Amending Act of 1958 can by no means be sustained. (3) The distinction between what may be called the "Bellary Area" and the "Madras Area" which came to be incorporated in the State of Mysore in 1953 and 1956 respectively is fully substantiated by Section 154 of the Mysore Act 27 of 1966. It is stated there in unambiguous language that the Act as in force in the Bellary district and as in force in the "Madras Area" was being repealed. If "Madras Area" also included the Bellary district as is the view of the High Court there was no question of Section 154 being worded as it is, making it quite clear, that the Act as applicable in Bellary district, was not the same as in force in the "Madras Area". (4) Thes of the Bellary Market Committee which were framed in exercise of the powers conferred by Section 19 of the Act read with the Madras Commercial Crops Market Rules 1948 give an indication that the Amending Act of 1958 was not applicable to the Bellary district. Theses were approved in May,1960. Underw 19 the Market Committee could levy fee or cess on the notified crops or commodities at the rates specified in the schedule. The schedule included cotton bales, loose cotton, kapas, groundnut seeds, groundnut pods and various other commodities. The Amending Act of 1958 specified the rates of only two commodities Arecanut and Coconut. These are not to be found in the schedule of thes of the Bellary Market Committee. In thes of the South Kanara Market Committee which came into force on July 1, 1955 these two commodities namely, Arecanut and Coconut are the principal if not the only, commodities which figure. The suggestion which has been made at the bar and which does not seem to be without substance is that in the South Kanara district these are the only or the principal commodities which constitute commercial crops; whereas in the Bellary district there are other commodities mentioned in thes which do not include these two that constitute commercial crops. Certain notifications have also been produced which show that rice, paddy etc., were declared to be commercial crops for the purpose of the Act even in the "Madras Area". But thes as also the Amending Act of 1958 seem to show that Arecanut and Coconut are the main or the principal commodities in the "Madras Area" and these commodities, according to the, are confined to South Kanara district and are not included as commercial crops in the Bellary district at all10. Once, it is held that the Mysore Amending Act of 1958 did not apply to the Bellary district only fee could be levied under Section 11 (1) of the Act as it originally stood. Underw 19 the rate specified for groundnut seeds was 9 paise per kilogram. The notice sent by the Market Committee making the demand from the respondents employed the word "cess" but that cannot stand in the way of it being held that the demand related to a fee which alone could be levied under Section 11 (1) of the Act. The, finding of the High Court was that the cess demanded was a sales tax since it was levied under Section 11 (1) of the Act as amended by the Amending Act of 1958. It was observed that if it was not a cess the question that remained to be considered was whether the cess demanded was a fee and if so whether the levy of the fee was open to criticism that it was not correlated to the services rendered11. As it has been determined by us that the demand by the Market Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee and a tax is well known and there are a series of decisions of this Court on what is a fee and what are the tests which distinguish it from a tax. See Delhi Cloth and General Mills Co. Ltd. v. Chief Commr., Delhi, (1970) 2 SCR 348 = (AIR 1971 SC 344 ). The High Court will no doubt afford the parties an opportunity of filing supplementary affidavits and document, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions will have to be disposed of in accordance with law. | 1 | 3,391 | 1,313 | ### 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:
Bill 1958 when it was introduced in the Mysore legislature there was mention only of the Act as amended by the Madras legislature in 1955 being in force in South Kanara district. The entire reading of the statement shows that whatever changes in law and the validation provisions which were being made were confined only to the levy of a cess by way of sales tax by the South Kanara Market Committee. (2) The Amending Act of 1958 was made applicable only to what was called the "Madras Area." This area could have reference only to the South Kanara district with the exception of the specified areas which was a part of the State of Madras immediately before the States Reorganisation Act of 1956. It would be stretching the language too far to include in it the Bellary district which had ceased to be a part of the State of Madras much earlier than 1953. The adaptation made in the Mysore General Clauses Act, 1899 by virtue of the provisions contained in the States Reorganisation Act, 1956 defined "Madras Area" to mean the territory specified in Clause (d) of subsection (1) of Section 7 of that Act. That would, as stated before, comprise only the territory of South Kanara district with the exception of specified areas. The reasoning of the High Court that the definition given in the General Clauses Act should not be applied to the expression "Madras Area" in the Amending Act of 1958 can by no means be sustained. (3) The distinction between what may be called the "Bellary Area" and the "Madras Area" which came to be incorporated in the State of Mysore in 1953 and 1956 respectively is fully substantiated by Section 154 of the Mysore Act 27 of 1966. It is stated there in unambiguous language that the Act as in force in the Bellary district and as in force in the "Madras Area" was being repealed. If "Madras Area" also included the Bellary district as is the view of the High Court there was no question of Section 154 being worded as it is, making it quite clear, that the Act as applicable in Bellary district, was not the same as in force in the "Madras Area". (4) The bye-laws of the Bellary Market Committee which were framed in exercise of the powers conferred by Section 19 of the Act read with the Madras Commercial Crops Market Rules 1948 give an indication that the Amending Act of 1958 was not applicable to the Bellary district. These bye-laws were approved in May,1960. Under bye-law 19 the Market Committee could levy fee or cess on the notified crops or commodities at the rates specified in the schedule. The schedule included cotton bales, loose cotton, kapas, groundnut seeds, groundnut pods and various other commodities. The Amending Act of 1958 specified the rates of only two commodities Arecanut and Coconut. These are not to be found in the schedule of the bye-laws of the Bellary Market Committee. In the bye-laws of the South Kanara Market Committee which came into force on July 1, 1955 these two commodities namely, Arecanut and Coconut are the principal if not the only, commodities which figure. The suggestion which has been made at the bar and which does not seem to be without substance is that in the South Kanara district these are the only or the principal commodities which constitute commercial crops; whereas in the Bellary district there are other commodities mentioned in the bye-laws which do not include these two that constitute commercial crops. Certain notifications have also been produced which show that rice, paddy etc., were declared to be commercial crops for the purpose of the Act even in the "Madras Area". But the bye-laws as also the Amending Act of 1958 seem to show that Arecanut and Coconut are the main or the principal commodities in the "Madras Area" and these commodities, according to the bye-laws, are confined to South Kanara district and are not included as commercial crops in the Bellary district at all. 10. Once, it is held that the Mysore Amending Act of 1958 did not apply to the Bellary district only fee could be levied under Section 11 (1) of the Act as it originally stood. Under bye-law 19 the rate specified for groundnut seeds was 9 paise per kilogram. The notice sent by the Market Committee making the demand from the respondents employed the word "cess" but that cannot stand in the way of it being held that the demand related to a fee which alone could be levied under Section 11 (1) of the Act. The, finding of the High Court was that the cess demanded was a sales tax since it was levied under Section 11 (1) of the Act as amended by the Amending Act of 1958. It was observed that if it was not a cess the question that remained to be considered was whether the cess demanded was a fee and if so whether the levy of the fee was open to criticism that it was not correlated to the services rendered. 11. As it has been determined by us that the demand by the Market Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee and a tax is well known and there are a series of decisions of this Court on what is a fee and what are the tests which distinguish it from a tax. See Delhi Cloth and General Mills Co. Ltd. v. Chief Commr., Delhi, (1970) 2 SCR 348 = (AIR 1971 SC 344 ). The High Court will no doubt afford the parties an opportunity of filing supplementary affidavits and document, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions will have to be disposed of in accordance with law.
### Response:
1
### Explanation:
the Madras Commercial Crops Markets . (Mysore Amendment and Validation of Levy of Cess) Bill 1958 when it was introduced in the Mysore legislature there was mention only of the Act as amended by the Madras legislature in 1955 being in force in South Kanara district. The entire reading of the statement shows that whatever changes in law and the validation provisions which were being made were confined only to the levy of a cess by way of sales tax by the South Kanara Market Committee. (2) The Amending Act of 1958 was made applicable only to what was called the "Madras Area." This area could have reference only to the South Kanara district with the exception of the specified areas which was a part of the State of Madras immediately before the States Reorganisation Act of 1956. It would be stretching the language too far to include in it the Bellary district which had ceased to be a part of the State of Madras much earlier than 1953. The adaptation made inthe Mysore General Clauses Act, 1899 by virtue of the provisions contained inthe States Reorganisation Act, 1956 defined "Madras Area" to mean the territory specified in Clause (d) ofsubsection(1) of Section 7 of that Act. That would, as stated before, comprise only the territory of South Kanara district with the exception of specified areas. The reasoning of the High Court that the definition given in the General Clauses Act should not be applied to the expression "Madras Area" in the Amending Act of 1958 can by no means be sustained. (3) The distinction between what may be called the "Bellary Area" and the "Madras Area" which came to be incorporated in the State of Mysore in 1953 and 1956 respectively is fully substantiated by Section 154 of the Mysore Act 27 of 1966. It is stated there in unambiguous language that the Act as in force in the Bellary district and as in force in the "Madras Area" was being repealed. If "Madras Area" also included the Bellary district as is the view of the High Court there was no question of Section 154 being worded as it is, making it quite clear, that the Act as applicable in Bellary district, was not the same as in force in the "Madras Area". (4) Thes of the Bellary Market Committee which were framed in exercise of the powers conferred by Section 19 of the Act read with the Madras Commercial Crops Market Rules 1948 give an indication that the Amending Act of 1958 was not applicable to the Bellary district. Theses were approved in May,1960. Underw 19 the Market Committee could levy fee or cess on the notified crops or commodities at the rates specified in the schedule. The schedule included cotton bales, loose cotton, kapas, groundnut seeds, groundnut pods and various other commodities. The Amending Act of 1958 specified the rates of only two commodities Arecanut and Coconut. These are not to be found in the schedule of thes of the Bellary Market Committee. In thes of the South Kanara Market Committee which came into force on July 1, 1955 these two commodities namely, Arecanut and Coconut are the principal if not the only, commodities which figure. The suggestion which has been made at the bar and which does not seem to be without substance is that in the South Kanara district these are the only or the principal commodities which constitute commercial crops; whereas in the Bellary district there are other commodities mentioned in thes which do not include these two that constitute commercial crops. Certain notifications have also been produced which show that rice, paddy etc., were declared to be commercial crops for the purpose of the Act even in the "Madras Area". But thes as also the Amending Act of 1958 seem to show that Arecanut and Coconut are the main or the principal commodities in the "Madras Area" and these commodities, according to the, are confined to South Kanara district and are not included as commercial crops in the Bellary district at all10. Once, it is held that the Mysore Amending Act of 1958 did not apply to the Bellary district only fee could be levied under Section 11 (1) of the Act as it originally stood. Underw 19 the rate specified for groundnut seeds was 9 paise per kilogram. The notice sent by the Market Committee making the demand from the respondents employed the word "cess" but that cannot stand in the way of it being held that the demand related to a fee which alone could be levied under Section 11 (1) of the Act. The, finding of the High Court was that the cess demanded was a sales tax since it was levied under Section 11 (1) of the Act as amended by the Amending Act of 1958. It was observed that if it was not a cess the question that remained to be considered was whether the cess demanded was a fee and if so whether the levy of the fee was open to criticism that it was not correlated to the services rendered11. As it has been determined by us that the demand by the Market Committee could be made lawfully only in respect of a fee the validity and legality of that levy will now have to be determined by the High Court. The distinction between a fee and a tax is well known and there are a series of decisions of this Court on what is a fee and what are the tests which distinguish it from a tax. See Delhi Cloth and General Mills Co. Ltd. v. Chief Commr., Delhi, (1970) 2 SCR 348 = (AIR 1971 SC 344 ). The High Court will no doubt afford the parties an opportunity of filing supplementary affidavits and document, if necessary, for determining whether the levy made is a fee. After deciding that matter the writ petitions will have to be disposed of in accordance with law.
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Life Insurance Corporation of India Vs. Nandini J. Shah & Others | 28. XXX XXX XXX 29. Accordingly, we answer the question referred as follows: 29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; 29.2 Jurisdiction Under Article 227 is distinct from jurisdiction Under Article 226. 29.3 Contrary view in Surya Dev Rai is overruled. (emphasis supplied) 52. Similar view has been expressed in Jogendrasinghji (supra). In this decision, it has been held that the order passed by the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the Constitution of India and no intra court appeal is maintainable from the decision of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus: 30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only Under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be Under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction Under Article 226 or Under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction Under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court. In the concluding part of the reported judgment in paragraph 44, the Court observed thus: 44. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction Under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra). 53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable. 54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia (supra) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by the Division Bench to entertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd. 55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld. 56. As we have held that the Division Bench, in the facts of the present case, could not have entertained the Letters Patent Appeal against the judgment of the learned Single Judge, it is not necessary for us to examine the merits of the eviction order passed against the respondents by the Estate Officer and confirmed by the City Civil Court and the Single Judge of the High Court. In any case, that cannot be done in the appeal filed by the owner of the public premises, namely, the appellant. We may, however, to subserve the ends of justice, give liberty to the respondents to challenge the decision of the learned Single Judge by way of appropriate remedy, if so advised. | 0[ds]36. We may reiterate that, in the present case, we are not concerned with the question as to whether the Estate Officer functions as a Court whilst exercising powers under the 1971 Act, an issue which was also considered by the Delhi High Court. It also dealt with the question as to whether the Appellate Officer defined in Section 9 of the 1971 Act, acts as a persona designata and not as a Court. The Delhi High Court opined that the mere fact that the Appellate Officer is a District Judge is not conclusive to hold that he has to act as a Court. It went on to observe that if that had been the intention of the legislature, Section 9 would have empowered either the Court of a District Judge or at any rate, the District Judge as such to hear the appeals. This view expressed by the Delhi High Court, in our opinion, is untenable, keeping in mind the exposition in the case of Thakur Das (supra) and Mukri Gopalan (supra) in particular39. Notably, the expression appellate officer has not been defined in the 1971 Act, unlike the definition of estate officer contained in Section 2(1)(b) of that Act. The appellate officer cannot be considered as a statutory authority, as defined in the dictionary clause in Section 2(1)(fa) of the 1971 Act. In the case of Thakur Das (supra), in paragraph 9, while analyzing the cleavage of opinion of the High Courts, it is noticed that the expression judicial authority would comprehend the Additional Sessions Judge or the Sessions Judge could transfer such appeal pending before him to Additional Sessions Judge which was a pointer to the fact that he was not a persona designata. Even in respect of the appeal under Section 9 of the 1971 Act, the Principal Judge of the City Civil Court or District Judge is competent to hear the appeal himself or designate some other judicial officer within his jurisdiction possessing requisite qualification. It will be useful to advert to Section 7 of the City Civil Courts Act and Sections 3, 5 & 7 of the Maharashtra Civil Courts Act. It is implicit in Section 9 read with the provisions of the Acts constituting the District Judiciary that the head of the district judiciary is the District Judge or Principal Judge of the City Civil Court and Section 9 of the 1971 Act makes it explicit, by investing authority in the District Judge or Principal Judge of the City Civil Court, to designate any other judicial officer within his jurisdiction possessing essential qualifications, to hear such appeals. This is a clear departure from the appointment of a District Judge as a persona designata. The Additional District Judge or judicial officer possessing essential qualification, therefore, is not an inferior appellate officer within the meaning of Section 9 of the 1971 Act. In our opinion, there is enough indication in Section 9 of the 1971 Act to spell out the legislative intent that the remedy of appeal before the appellate officer is not before a persona designata but ag judicial authority in the district concerned41. The fact that there is no express indication in the 1971 Act about the procedure to be adopted or followed by the appellate officer, it would not follow therefrom that the District Judge or designated judicial officer who hears the appeals under Section 9, does so not as a Court but as a persona designata. For the reasons already alluded to we have no hesitation in holding that the remedy of appeal under Section 9 before the Appellate Officer is not as a persona designata but to ag judicial authority. In that case, the procedure for hearing of the appeals will be governed by the provisions under the 1971 Act and Rules framed thereunder and including the enactment under which the judicial authority has been created, such as Maharashtra Civil Courts Act and City Civil Courts Act. [See para 26 of Maharashtra State Financial Corporation (supra), reproduced in earlier part of this judgment in para 26]. Such ag judicial authority, by implication, would be bound to follow the procedure underlying the said enactments and also observe the doctrine of fairness in affording opportunity. Since the edifice on which the conclusions reached by the Delhi High Court, that an appellate officer is persona designata and not a Court, cannot be countenanced in law, the Bombay High Court decisions in Nusli Neville Wadia?s case (supra) and also Prakash Securities Pvt. Ltd. (supra), cannot hold the field to that extent for the same logic46. In the Case of Jinda Ram (supra), the Division Bench of the Madhya Pradesh High Court was called upon to consider the maintainability of revision application under Section 115 of Civil Procedure Code against an order passed by the District Judge as an Appellate Officer under Section 9 of the 1971 Act. After considering the conflicting decisions of the same High Court on the point, the Division Bench held that an order passed by the Appellate Officer under Section 9 is amenable to revisional jurisdiction of the High Court under Section 115 of Civil Procedure Code. The Court relied upon the exposition of this Court in the case of Mukri Gopalan (supra) wherein it has been observed that the appellate authorities constituted under the enactment constitute a class and cannot be considered as a persona designata. Further, the appellate authority functions as a Court. The Court also referred to another decision of this Court in Shyam Sunder Agarwal and Co. Vs. Union of India (1996) 2 SCC 132 )wherein it has been held that appellate order having been passed by a Civil Court, constituted under a special statute subordinate to the High Court though made final under the Act, it is amenable to revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. The Court relied upon other decisions of this Court to buttress the conclusion that the remedy of revision under Section 115 of C.P.C. was available against an order passed by the District Judge on an appeal under Section 9 of the Act. Be that as it may, we are certain that remedy under Article 227 of the Constitution of India is availed against the decision of the Appellate Officer48. Even though the respondents have invited our attention to other decisions of High Courts and also of Supreme Court which have analysed the provisions of other legislations, it is unnecessary to dilate on those decisions as we intend to apply the principles underlying the decisions ofe Bench of this Court in Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra), Maharashtra State Financial Corporation (supra), Ram Chander Aggarwal (supra) and Mukri Gopalan (supra), in particular, to conclude that the Appellate Officer referred to in Section 9 of the 1971 Act, is not a persona designata but acts as a civil court49. In other words, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld56. As we have held that the Division Bench, in the facts of the present case, could not have entertained the Letters Patent Appeal against the judgment of the learned Single Judge, it is not necessary for us to examine the merits of the eviction order passed against the respondents by the Estate Officer and confirmed by the City Civil Court and the Single Judge of the High Court. In any case, that cannot be done in the appeal filed by the owner of the public premises, namely, the appellant. We may, however, to subserve the ends of justice, give liberty to the respondents to challenge the decision of the learned Single Judge by way of appropriate remedy, if so advisedAs the preliminary issue regarding the maintainability of the Letters Patent Appeal has been answered in favour of the appellant, this appeal must succeed. | 0 | 20,623 | 2,224 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
28. XXX XXX XXX 29. Accordingly, we answer the question referred as follows: 29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; 29.2 Jurisdiction Under Article 227 is distinct from jurisdiction Under Article 226. 29.3 Contrary view in Surya Dev Rai is overruled. (emphasis supplied) 52. Similar view has been expressed in Jogendrasinghji (supra). In this decision, it has been held that the order passed by the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the Constitution of India and no intra court appeal is maintainable from the decision of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus: 30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only Under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be Under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction Under Article 226 or Under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction Under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court. In the concluding part of the reported judgment in paragraph 44, the Court observed thus: 44. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction Under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra). 53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable. 54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia (supra) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by the Division Bench to entertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd. 55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld. 56. As we have held that the Division Bench, in the facts of the present case, could not have entertained the Letters Patent Appeal against the judgment of the learned Single Judge, it is not necessary for us to examine the merits of the eviction order passed against the respondents by the Estate Officer and confirmed by the City Civil Court and the Single Judge of the High Court. In any case, that cannot be done in the appeal filed by the owner of the public premises, namely, the appellant. We may, however, to subserve the ends of justice, give liberty to the respondents to challenge the decision of the learned Single Judge by way of appropriate remedy, if so advised.
### Response:
0
### Explanation:
we are certain that remedy under Article 227 of the Constitution of India is availed against the decision of the Appellate Officer48. Even though the respondents have invited our attention to other decisions of High Courts and also of Supreme Court which have analysed the provisions of other legislations, it is unnecessary to dilate on those decisions as we intend to apply the principles underlying the decisions ofe Bench of this Court in Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra), Maharashtra State Financial Corporation (supra), Ram Chander Aggarwal (supra) and Mukri Gopalan (supra), in particular, to conclude that the Appellate Officer referred to in Section 9 of the 1971 Act, is not a persona designata but acts as a civil court49. In other words, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld56. As we have held that the Division Bench, in the facts of the present case, could not have entertained the Letters Patent Appeal against the judgment of the learned Single Judge, it is not necessary for us to examine the merits of the eviction order passed against the respondents by the Estate Officer and confirmed by the City Civil Court and the Single Judge of the High Court. In any case, that cannot be done in the appeal filed by the owner of the public premises, namely, the appellant. We may, however, to subserve the ends of justice, give liberty to the respondents to challenge the decision of the learned Single Judge by way of appropriate remedy, if so advisedAs the preliminary issue regarding the maintainability of the Letters Patent Appeal has been answered in favour of the appellant, this appeal must succeed.
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Manilal Chatterjee alias Sudip Vs. State of W.B | 1. This is a petition under Art. 32 of the Constitution for a writ of habeas corpus. The impugned order of detention was passed in this case on July 19, 1971 by the District Magistrate, 24 Parganas under Sub-section 1 read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. In pursuance of that order the detenu was arrested on July 21, 1971 and the grounds of detention were served on him. It appears from the counter-affidavit filed by the State Government that all the consequential steps required under the Act were duly taken within the prescribed periods. It was, therefore, not possible for Mr. D. Goburdhan, counsel for the petitioner, appearing amicus curiae, to point out any legal infirmity either in the impugned order or the consequential steps taken by the Government thereafter. Mr. Goburdhan, on the contrary, frankly conceded before us that in these circumstances it was not possible for him to attack the validity of the order upon any legal ground. That being so it is obvious that there is no justifiable reason for interfering with that order or the detention of the petitioner hereunder. In any event the period of the petitioners detention will be over on July 20, 1972 and the State Government will then be bound to release him from the detention.2. | 0[ds]It appears from thefiled by the State Government that all the consequential steps required under the Act were duly taken within the prescribed periods. It was, therefore, not possible for Mr. D. Goburdhan, counsel for the petitioner, appearing amicus curiae, to point out any legal infirmity either in the impugned order or the consequential steps taken by the Government thereafter. Mr. Goburdhan, on the contrary, frankly conceded before us that in these circumstances it was not possible for him to attack the validity of the order upon any legal ground. That being so it is obvious that there is no justifiable reason for interfering with that order or the detention of the petitioner hereunder. In any event the period of the petitioners detention will be over on July 20, 1972 and the State Government will then be bound to release him from the detention. | 0 | 251 | 161 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. This is a petition under Art. 32 of the Constitution for a writ of habeas corpus. The impugned order of detention was passed in this case on July 19, 1971 by the District Magistrate, 24 Parganas under Sub-section 1 read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. In pursuance of that order the detenu was arrested on July 21, 1971 and the grounds of detention were served on him. It appears from the counter-affidavit filed by the State Government that all the consequential steps required under the Act were duly taken within the prescribed periods. It was, therefore, not possible for Mr. D. Goburdhan, counsel for the petitioner, appearing amicus curiae, to point out any legal infirmity either in the impugned order or the consequential steps taken by the Government thereafter. Mr. Goburdhan, on the contrary, frankly conceded before us that in these circumstances it was not possible for him to attack the validity of the order upon any legal ground. That being so it is obvious that there is no justifiable reason for interfering with that order or the detention of the petitioner hereunder. In any event the period of the petitioners detention will be over on July 20, 1972 and the State Government will then be bound to release him from the detention.2.
### Response:
0
### Explanation:
It appears from thefiled by the State Government that all the consequential steps required under the Act were duly taken within the prescribed periods. It was, therefore, not possible for Mr. D. Goburdhan, counsel for the petitioner, appearing amicus curiae, to point out any legal infirmity either in the impugned order or the consequential steps taken by the Government thereafter. Mr. Goburdhan, on the contrary, frankly conceded before us that in these circumstances it was not possible for him to attack the validity of the order upon any legal ground. That being so it is obvious that there is no justifiable reason for interfering with that order or the detention of the petitioner hereunder. In any event the period of the petitioners detention will be over on July 20, 1972 and the State Government will then be bound to release him from the detention.
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Balbir Singh Bedi Vs. State of Punjab & Others | work performance during the previous years, or by a combination of either of the above, or of all the aforesaid methods. There cannot be any hard and fast rule with respect to how minimum merit should be ascertained. For the purpose of assessing the merit of employees, the employer may proceed with reference to four criteria (Period of service, educational qualifications, performance during last three years and interview) allocating separate maximum marks as regards each of the aforesaid counts. 14. In Haryana State Warehousing Corporation & Ors. v. Jagat Ram & Anr., (2011) 3 SCC 422 , this Court considered a similar issue and reiterated a similar view. The Court also observed that, for the purpose of according promotion on the principle of “seniority-cum-merit”, a comparative assessment of all eligible candidates is not permissible. Once a person has secured minimum marks with respect to merit, his seniority would play a significant role. Thus, in the event that an employee is found to possess minimum requisite merit, he is entitled to be considered for promotion on the basis of his seniority. 15. In view of the above, the law as regards this point can be summarised to the effect that, where a promotion is to be given on the principle of “seniority-cum-merit”, such promotion will not automatically be granted on the basis of seniority alone. Efficiency of administration cannot be compromised with at any cost. Thus, in order to meet said requirements, all eligible candidates in the feeder cadre must be subject to a process of assessment to determine whether or not an individual in fact possesses the specified minimum necessary merit, and in the event that he does possess the same, his case must be considered giving due weightage to his seniority. Furthermore, the statutory authority must adopt a bonafide and reasonable method to determine the minimum necessary merit, as is required to be possessed by the eligible candidate. It must also take into account his period of service, educational qualifications, his performance during his past service for a particular period, his written test, interview, etc. The authority must further be competent to allocate separate maximum marks on each of the aforesaid counts. Fixing such criteria, or providing for minimum necessary merit, falls within the exclusive domain of policy making. Thus, it cannot be interfered with by courts in the exercise of their judicial powers, unless the same is found to be off the mark, unreasonable, or malafide.16. The relevant portions of the executive instructions dated 29.12.2000 read as under: “(iii) In the case of promotion to posts with pay scales less than Rs.12000-16350, the benchmark will be ‘Good’. This benchmark will determine the fitness of the officer and person graded ‘Very Good’ or ‘Outstanding’ will not supersede persons graded ‘Good’.iv) Henceforth each Annual Confidential Report will be evaluated as under:-Outstanding : +A ……………..4 MarksVery Good : A ………………3 MarksGood : +B ……………….2 MarksAverage : B ……………….1 MarkACRsfor 5 years are taken into consideration for promotion. Out of a total of 20 marks, officers earning 0 to 14 marks will be graded overall ‘Good’ and those earning 15 to 17 marks will be graded overall ‘Very Good’. Those earning 18 to 20 marks will be graded as ‘Outstanding’. Departmental which are ‘Outstanding’ must have been out of the ordinary and reasons for giving grading must be cogent and well spelt out, to be accepted and outstanding. If the ACR does not fulfill the above criteria, the entry of the ‘Outstanding’ should be read as ‘Very Good’ only. An officer will not be fit for promotion if he is rated ‘below average’ in any of the 5 years.” 17. Similarly, the executive instructions dated 6.9.2001 so far as applicable in the instant case, read as under: “3. In the case of promotion to posts falling in Group ‘B’ the minimum benchmark will be ‘Good’ and there would be no supercession i.e. promotions would be made strictly on seniority- cum-merit.4. For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration.” 18. If, the instant case is examined in light of the aforesaid settled legal propositions, it becomes evident that even in the absence of the executive instructions, the State/employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle of “seniority-cum- merit”. The aforesaid executive instructions are nothing but codification of directions issued by this Court in the cases referred to hereinabove. Therefore, a challenge made to the executive instructions on the ground that they were issued at a date subsequent to the date on which the vacancy arose, is meaningless. The present case is not the one where, Respondent No. 5 was found to be more meritorious, in fact, the same is admittedly a case, where the appellant was unable to achieve the benchmark set, as it is evident from the record that his ACRs were average, and the benchmark fixed by the State was `Good’. 19. It is evident from the material on record i.e. from the counter- affidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement.Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective. | 0[ds]15. In view of the above, the law as regards this point can be summarised to the effect that, where a promotion is to be given on the principle ofsuch promotion will not automatically be granted on the basis of seniority alone. Efficiency of administration cannot be compromised with at any cost. Thus, in order to meet said requirements, all eligible candidates in the feeder cadre must be subject to a process of assessment to determine whether or not an individual in fact possesses the specified minimum necessary merit, and in the event that he does possess the same, his case must be considered giving due weightage to his seniority. Furthermore, the statutory authority must adopt a bonafide and reasonable method to determine the minimum necessary merit, as is required to be possessed by the eligible candidate. It must also take into account his period of service, educational qualifications, his performance during his past service for a particular period, his written test, interview, etc. The authority must further be competent to allocate separate maximum marks on each of the aforesaid counts. Fixing such criteria, or providing for minimum necessary merit, falls within the exclusive domain of policy making. Thus, it cannot be interfered with by courts in the exercise of their judicial powers, unless the same is found to be off the mark, unreasonable, or malafide.16. The relevant portions of the executive instructions dated 29.12.2000 read asIn the case of promotion to posts with pay scales less than Rs.12000-16350, the benchmark will beThis benchmark will determine the fitness of the officer and person graded ‘Verywill not supersede persons gradedHenceforth each Annual Confidential Report will be evaluated as under:-Outstanding : +A ……………..4 MarksVery Good : A ………………3 MarksGood : +B ……………….2 MarksAverage : B ……………….1 MarkACRsfor 5 years are taken into consideration for promotion. Out of a total of 20 marks, officers earning 0 to 14 marks will be graded overalland those earning 15 to 17 marks will be graded overall ‘VeryThose earning 18 to 20 marks will be graded asDepartmental which aremust have been out of the ordinary and reasons for giving grading must be cogent and well spelt out, to be accepted and outstanding. If the ACR does not fulfill the above criteria, the entry of theshould be read as ‘Veryonly. An officer will not be fit for promotion if he is rated ‘belowin any of the 5 years.Similarly, the executive instructions dated 6.9.2001 so far as applicable in the instant case, read asIn the case of promotion to posts falling in Groupthe minimum benchmark will beand there would be no supercession i.e. promotions would be made strictly on seniority- cum-merit.4. For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration.If, the instant case is examined in light of the aforesaid settled legal propositions, it becomes evident that even in the absence of the executive instructions, the State/employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle ofIt is evident from the material on record i.e. from the counter- affidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement.Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective. | 0 | 3,225 | 750 | ### 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:
work performance during the previous years, or by a combination of either of the above, or of all the aforesaid methods. There cannot be any hard and fast rule with respect to how minimum merit should be ascertained. For the purpose of assessing the merit of employees, the employer may proceed with reference to four criteria (Period of service, educational qualifications, performance during last three years and interview) allocating separate maximum marks as regards each of the aforesaid counts. 14. In Haryana State Warehousing Corporation & Ors. v. Jagat Ram & Anr., (2011) 3 SCC 422 , this Court considered a similar issue and reiterated a similar view. The Court also observed that, for the purpose of according promotion on the principle of “seniority-cum-merit”, a comparative assessment of all eligible candidates is not permissible. Once a person has secured minimum marks with respect to merit, his seniority would play a significant role. Thus, in the event that an employee is found to possess minimum requisite merit, he is entitled to be considered for promotion on the basis of his seniority. 15. In view of the above, the law as regards this point can be summarised to the effect that, where a promotion is to be given on the principle of “seniority-cum-merit”, such promotion will not automatically be granted on the basis of seniority alone. Efficiency of administration cannot be compromised with at any cost. Thus, in order to meet said requirements, all eligible candidates in the feeder cadre must be subject to a process of assessment to determine whether or not an individual in fact possesses the specified minimum necessary merit, and in the event that he does possess the same, his case must be considered giving due weightage to his seniority. Furthermore, the statutory authority must adopt a bonafide and reasonable method to determine the minimum necessary merit, as is required to be possessed by the eligible candidate. It must also take into account his period of service, educational qualifications, his performance during his past service for a particular period, his written test, interview, etc. The authority must further be competent to allocate separate maximum marks on each of the aforesaid counts. Fixing such criteria, or providing for minimum necessary merit, falls within the exclusive domain of policy making. Thus, it cannot be interfered with by courts in the exercise of their judicial powers, unless the same is found to be off the mark, unreasonable, or malafide.16. The relevant portions of the executive instructions dated 29.12.2000 read as under: “(iii) In the case of promotion to posts with pay scales less than Rs.12000-16350, the benchmark will be ‘Good’. This benchmark will determine the fitness of the officer and person graded ‘Very Good’ or ‘Outstanding’ will not supersede persons graded ‘Good’.iv) Henceforth each Annual Confidential Report will be evaluated as under:-Outstanding : +A ……………..4 MarksVery Good : A ………………3 MarksGood : +B ……………….2 MarksAverage : B ……………….1 MarkACRsfor 5 years are taken into consideration for promotion. Out of a total of 20 marks, officers earning 0 to 14 marks will be graded overall ‘Good’ and those earning 15 to 17 marks will be graded overall ‘Very Good’. Those earning 18 to 20 marks will be graded as ‘Outstanding’. Departmental which are ‘Outstanding’ must have been out of the ordinary and reasons for giving grading must be cogent and well spelt out, to be accepted and outstanding. If the ACR does not fulfill the above criteria, the entry of the ‘Outstanding’ should be read as ‘Very Good’ only. An officer will not be fit for promotion if he is rated ‘below average’ in any of the 5 years.” 17. Similarly, the executive instructions dated 6.9.2001 so far as applicable in the instant case, read as under: “3. In the case of promotion to posts falling in Group ‘B’ the minimum benchmark will be ‘Good’ and there would be no supercession i.e. promotions would be made strictly on seniority- cum-merit.4. For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration.” 18. If, the instant case is examined in light of the aforesaid settled legal propositions, it becomes evident that even in the absence of the executive instructions, the State/employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle of “seniority-cum- merit”. The aforesaid executive instructions are nothing but codification of directions issued by this Court in the cases referred to hereinabove. Therefore, a challenge made to the executive instructions on the ground that they were issued at a date subsequent to the date on which the vacancy arose, is meaningless. The present case is not the one where, Respondent No. 5 was found to be more meritorious, in fact, the same is admittedly a case, where the appellant was unable to achieve the benchmark set, as it is evident from the record that his ACRs were average, and the benchmark fixed by the State was `Good’. 19. It is evident from the material on record i.e. from the counter- affidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement.Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective.
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15. In view of the above, the law as regards this point can be summarised to the effect that, where a promotion is to be given on the principle ofsuch promotion will not automatically be granted on the basis of seniority alone. Efficiency of administration cannot be compromised with at any cost. Thus, in order to meet said requirements, all eligible candidates in the feeder cadre must be subject to a process of assessment to determine whether or not an individual in fact possesses the specified minimum necessary merit, and in the event that he does possess the same, his case must be considered giving due weightage to his seniority. Furthermore, the statutory authority must adopt a bonafide and reasonable method to determine the minimum necessary merit, as is required to be possessed by the eligible candidate. It must also take into account his period of service, educational qualifications, his performance during his past service for a particular period, his written test, interview, etc. The authority must further be competent to allocate separate maximum marks on each of the aforesaid counts. Fixing such criteria, or providing for minimum necessary merit, falls within the exclusive domain of policy making. Thus, it cannot be interfered with by courts in the exercise of their judicial powers, unless the same is found to be off the mark, unreasonable, or malafide.16. The relevant portions of the executive instructions dated 29.12.2000 read asIn the case of promotion to posts with pay scales less than Rs.12000-16350, the benchmark will beThis benchmark will determine the fitness of the officer and person graded ‘Verywill not supersede persons gradedHenceforth each Annual Confidential Report will be evaluated as under:-Outstanding : +A ……………..4 MarksVery Good : A ………………3 MarksGood : +B ……………….2 MarksAverage : B ……………….1 MarkACRsfor 5 years are taken into consideration for promotion. Out of a total of 20 marks, officers earning 0 to 14 marks will be graded overalland those earning 15 to 17 marks will be graded overall ‘VeryThose earning 18 to 20 marks will be graded asDepartmental which aremust have been out of the ordinary and reasons for giving grading must be cogent and well spelt out, to be accepted and outstanding. If the ACR does not fulfill the above criteria, the entry of theshould be read as ‘Veryonly. An officer will not be fit for promotion if he is rated ‘belowin any of the 5 years.Similarly, the executive instructions dated 6.9.2001 so far as applicable in the instant case, read asIn the case of promotion to posts falling in Groupthe minimum benchmark will beand there would be no supercession i.e. promotions would be made strictly on seniority- cum-merit.4. For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration.If, the instant case is examined in light of the aforesaid settled legal propositions, it becomes evident that even in the absence of the executive instructions, the State/employer has the right to adopt any reasonable and bonafide criteria to assess the merit, for the purpose of promotion on the principle ofIt is evident from the material on record i.e. from the counter- affidavit filed by the State that appellant faced criminal prosecution as FIR No. 25 dated 12.4.1996 had been lodged against him under Sections 7 & 13(ii) of the PC Act, 1988 and Sections 467/468/471/120-B IPC, at Police Station: Vigilance Bureau, Patiala, wherein the appellant faced trial though, acquitted as is evident from the judgment and order dated 2.5.2006 passed in Sessions Case No. 5 of 10.5.2001. His acquittal took place after five years to his retirement.Be that as it may, for the reason best known to the appellant, this fact was not disclosed by him either before the High Court or before this Court. It is another matter as what could have been the effect of pendency of the said criminal case so far as this case is concerned. Thus, we are of the view that the appellant did not approach the court with clean hands, clean mind and clean objective.
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Anoop Sharma Vs. Executive Engineer Public Health Division No-1 , Panipat | paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressees services were terminated with effect from 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25-F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25-F, we need not consider the other points raised by the learned counsel." 15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F(b). 16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words: "The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one months time available at his disposal to search for alternate employment, and so, either he should be given one months notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one months notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment." 17. If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of Clauses (a) and (b) of Section 25-F of the Act. 18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/- was offered to the appellant along with letter Ext. M-1, but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondents assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellants refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellants residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue of non-compliance of Section 25-F of the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement. 19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Courts approach in dealing with the appellants challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and employers obligation to comply with the conditions enumerated in that section. 20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement. | 1[ds]18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/was offered to the appellant along with letter Ext., but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondents assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellants refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellants residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue ofe of Section25Fof the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Courts approach in dealing with the appellants challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section25Fof the Act and employers obligation to comply with the conditions enumerated in that section20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement. | 1 | 5,255 | 543 | ### 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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paid in lieu of such notice, wages for the period of the notice. The notice in this case bears the date November 15, 1958. It is to the effect that the addressees services were terminated with effect from 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. Manifestly, Section 25-F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25-F, we need not consider the other points raised by the learned counsel." 15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F(b). 16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words: "The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one months time available at his disposal to search for alternate employment, and so, either he should be given one months notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one months notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment." 17. If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of Clauses (a) and (b) of Section 25-F of the Act. 18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/- was offered to the appellant along with letter Ext. M-1, but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondents assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellants refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellants residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue of non-compliance of Section 25-F of the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement. 19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Courts approach in dealing with the appellants challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and employers obligation to comply with the conditions enumerated in that section. 20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement.
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18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/was offered to the appellant along with letter Ext., but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondents assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellants refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellants residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue ofe of Section25Fof the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Courts approach in dealing with the appellants challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section25Fof the Act and employers obligation to comply with the conditions enumerated in that section20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement.
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Rekha Jain Vs. Natioanl Insurance Co.Ltd. | earn for himself.? 41. In this regard, in Baker?s case supra, it has been stated by Lord Reid that a man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. Therefore, the functional disability is a forceful alteration of career option of the appellant who has already undergone physical and mental injuries because of the accident. It would amount to adding distress to injury if one is forced to work with difficulty to earn his/her livelihood so as to reduce the burden of the wrongdoer in terms of compensation. 42. In view of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film ?Maa Pari Kiye Haba? and Rs.75,000/- for Malayalam film ‘Paith Digem Alam?. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the ?Ponds Women of Tomorrow? Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009 (6) SCC 121 ], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head. 43. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-. 44. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer. 45. The Tribunal awarded Rs.17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by the Tribunal. 46. Thus, the total compensation amounting to Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case. 47. Before parting with the judgment, it would be just and necessary for this Court to make observation that the Motor Accidents Claims Tribunals and the Appellate Courts should keep in view the rights of the claimants under the provisions of the M.V. Act to determine the compensation claims of the claimants by considering the facts of each case and the legal position laid down by this Court on relevant aspects. | 1[ds]The High Court has gravely erred both on facts and in law in interfering with the impugned judgment and award of the Tribunal in reducing the pecuniary damages awarded towards medical expenses incurred by the appellant herein from Rs.17,51,726/- to Rs.7,77,000/- solely on the ground that there is no documentary evidence in relation to the amount spent towards medical expenses which is awarded by the Tribunal. This assumption by the learned Judge of High Court is factually not correct. As could be seen from the record, there are large number of medical bills and vouchers produced by the appellant for having spent the money towards the surgeries conducted upon her and payment made to the various Hospitals and Nursing Homes namely, V.S.S. Medical Hospital, Burla, Kalinga Hospital, Bhubaneshwar, Nursing Home, Cuttack along with purchase of medicines for the aforesaid period which run to Rs.17,51,726/-. The above said factual aspects are stated in unequivocal terms in her statement of evidence, and she has also referred to the documents such as bills, receipts and vouchers obtained by her from various medical stores on the basis of the prescriptions of the doctors who have treated her. Some of the documents were marked in the evidence of PW-3 - the appellant herein and she had spoken about the expenses incurred towards her treatment and purchase of medicines. In relation to some other documents, the learned counsel for the Insurance Company has objected for making them exhibits without raising tenable objections. The learned member of the Tribunal neither upheld nor rejected the objection raised by the counsel on behalf of the respondent Insurance Company at the time of marking documents through the appellant in her evidence. Nonetheless, the learned member of the Tribunal has taken those documents into consideration and has awarded compensation under pecuniary damages having regard to the clinching evidence on record that the surgeries were conducted and treatment was taken by her in various hospitals and Nursing Homes for a period of four years. The correctness of the said claim is examined by us with reference to the documents in Ann. P-7 produced in this case, in which date-wise particulars with regard to the name of the Institutions and Medical Stores, the expenses incurred and bill numbers, payment made for the purpose of conducting blood tests, purchase of medicines, purchase of blood from the blood bank and cost of surgeries spent by the appellant are given. The Tribunal, in the absence of rebuttal evidence and the nature of cross examination of the appellant-PW3 made by the learned counsel on behalf of the Insurance Company and the evidence adduced by the appellant herein and the claim made by her under the pecuniary damages towards the medical expenses, tests, surgeries etc. and other incidental purposes, has accepted and has rightly awarded a sum of Rs. 17,51,726/- under the heading of medical expenses. The same has been arbitrarily and unreasonably, without assigning any cogent and valid reason, interfered with by the High Court and it has erroneously modified the judgment by reducing the amount from Rs. 17,51,726/- to Rs. 7,77,000/-. This has been very lightly interfered with by the learned Judge of the High Court without application of mind and consideration of legal evidence on record particularly in the absence of rebuttal evidence and further, the Insurance Company was unable to show that the documents referred to supra produced by the appellant in her evidence are fabricated documents, which have been produced with deliberate intention to prefer a false claim in this regard as contended by the learned counsel on behalf of the Insurance Company. We have carefully examined the evidence on record and the findings of the Tribunal to examine as to whether the findings recorded by the High Court in the impugned judgment for reduction of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/- is correct. On careful perusal of the evidence and documents produced by the appellant we have to hold that the finding and reason recorded by the High Court is wholly erroneous in law as the same is contrary to the facts pleaded and proved by producing evidence on record. Therefore, the same requires to be interfered with by this Court in these appeals. Accordingly, point Nos. (i) and (ii) are answered in the affirmative in favour of the appellant. The finding and reason recorded by the High Court in not awarding just and reasonable compensation under the various heads of non pecuniary damages for which she is legally entitled to on the basis of proven facts, legal evidence on record and law laid down by this Court, is not only erroneous but also suffers from error in law. On this aspect, separate reasons are assigned while answering point Nos. (iii) & (iv).14. Point No.(iii) is also required to be answered in favour of the appellant. We are of the view that the appellant is substantially entitled to enhancement of compensation under various heads of non-pecuniary damages having regard to the concurrent findings recorded on this aspect of the matter by the High Court. Both the Tribunal and the High Court have accepted the nature of injuries sustained by her and the percentage of permanent partial disablement suffered by her due to the Motor Vehicle Accident as per the Disability Certificate No.943 dated 24.2.2006 issued by the Chief Medical Officer of the District Medical Board of Sambalpur. This aspect of the matter is very relevant for the purpose of examining the claim of the appellant and also to find out as to whether the Tribunal and the High Court were justified in not awarding just and reasonable compensation in favour of the appellant under the various heads of non-pecuniary damages. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one?s own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr. [ILR 2004 Karnataka 2471 ], wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads asThe Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of ones own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity ofview of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film ?Maa Pari Kiye Haba? and Rs.75,000/- for Malayalam film ‘Paith Digem Alam?. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the ?Ponds Women of Tomorrow? Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009 (6) SCC 121 ], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head. | 1 | 11,641 | 2,133 | ### Instruction:
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earn for himself.? 41. In this regard, in Baker?s case supra, it has been stated by Lord Reid that a man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. Therefore, the functional disability is a forceful alteration of career option of the appellant who has already undergone physical and mental injuries because of the accident. It would amount to adding distress to injury if one is forced to work with difficulty to earn his/her livelihood so as to reduce the burden of the wrongdoer in terms of compensation. 42. In view of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film ?Maa Pari Kiye Haba? and Rs.75,000/- for Malayalam film ‘Paith Digem Alam?. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the ?Ponds Women of Tomorrow? Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009 (6) SCC 121 ], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head. 43. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-. 44. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer. 45. The Tribunal awarded Rs.17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by the Tribunal. 46. Thus, the total compensation amounting to Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case. 47. Before parting with the judgment, it would be just and necessary for this Court to make observation that the Motor Accidents Claims Tribunals and the Appellate Courts should keep in view the rights of the claimants under the provisions of the M.V. Act to determine the compensation claims of the claimants by considering the facts of each case and the legal position laid down by this Court on relevant aspects.
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be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one?s own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr. [ILR 2004 Karnataka 2471 ], wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads asThe Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of ones own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity ofview of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film ?Maa Pari Kiye Haba? and Rs.75,000/- for Malayalam film ‘Paith Digem Alam?. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the ?Ponds Women of Tomorrow? Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009 (6) SCC 121 ], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head.
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NARESH KUMAR Vs. GOVT.OF NCT OF DELHI | Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the Award which is provided for under Section 13A of the Act, which was inserted with effect from 24.09.1984. The relevant Section 13A of the Act reads as under:13A. Correction of clerical errors, etc. – (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue. (emphasis supplied)A bare reading of the said Section 13A would make it clear that the same is not a provision for Review of the Award but only for correction of clerical or arithmetical mistakes in the Award. It is further provided in the sub-Section (1) of Section 13A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the Award dated 01.10.2003 by its Review Award no.16/03-04 dated 14.07.2004, which was also clearly passed beyond such period of six months. 9. In our considered view, the Review Award could not have been passed under Section 13A of the Act, which is meant only for correction of any clerical or arithmetical mistake. There is no other provision in the Act under which the said order dated 14.07.2004 could have been passed. 10. In the present case, the compensation for the structure on the land has been deducted from the Award dated 01.10.2003 by the Review Award dated 14.07.2004 on the ground of the same being illegal structure, which actually amounts to Review of the Award and cannot be said to be a correction of any clerical or arithmetical mistake. The question whether the structure on the land of the appellants was legal or illegal could only be decided after the parties were given opportunity to adduce evidence, which correction cannot be termed as correction of any clerical or arithmetical mistake. There being no provision under the Land Acquisition Act, 1894 for review of the Award, the passing of the order dated 14.07.2004 in Review Award no.16/03-04 cannot be justified in law. 11. Section 12 of the Act clearly provides that the Award of the Collector shall become final on the same being filed in the Collector?s office, of which the Collector shall give immediate notice to the persons interested. From the facts of this case, it is clear that the Award dated 01.10.2003, of which due notice had been given to the appellants and part compensation had also been paid to the appellants in pursuance thereto, had become final and the same could not have been reviewed, and that too beyond a period of six months, within which period only clerical or arithmetical mistakes could have been corrected. 12. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania (2010) 9 SCC 437 , has held as under:?…………… 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457 ] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641 ] .) 13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273 ] , Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321] , Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491 : AIR 1987 SC 2186 ] , State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification /modification/ correction is not permissible.? | 1[ds]A bare reading of the said Section 13A would make it clear that the same is not a provision for Review of the Award but only for correction of clerical or arithmetical mistakes in the Award. It is further provided in the sub-Section (1) of Section 13A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the Award dated 01.10.2003 by its Review Award no.16/03-04 dated 14.07.2004, which was also clearly passed beyond such period of six months.In our considered view, the Review Award could not have been passed under Section 13A of the Act, which is meant only for correction of any clerical or arithmetical mistake. There is no other provision in the Act under which the said order dated 14.07.2004 could have been passed.In the present case, the compensation for the structure on the land has been deducted from the Award dated 01.10.2003 by the Review Award dated 14.07.2004 on the ground of the same being illegal structure, which actually amounts to Review of the Award and cannot be said to be a correction of any clerical or arithmetical mistake. The question whether the structure on the land of the appellants was legal or illegal could only be decided after the parties were given opportunity to adduce evidence, which correction cannot be termed as correction of any clerical or arithmetical mistake. There being no provision under the Land Acquisition Act, 1894 for review of the Award, the passing of the order dated 14.07.2004 in Review Award no.16/03-04 cannot be justified in law.Section 12 of the Act clearly provides that the Award of the Collector shall become final on the same being filed in the Collector?s office, of which the Collector shall give immediate notice to the persons interested. From the facts of this case, it is clear that the Award dated 01.10.2003, of which due notice had been given to the appellants and part compensation had also been paid to the appellants in pursuance thereto, had become final and the same could not have been reviewed, and that too beyond a period of six months, within which period only clerical or arithmetical mistakes could have been corrected.It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. | 1 | 1,932 | 474 | ### Instruction:
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Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the Award which is provided for under Section 13A of the Act, which was inserted with effect from 24.09.1984. The relevant Section 13A of the Act reads as under:13A. Correction of clerical errors, etc. – (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue. (emphasis supplied)A bare reading of the said Section 13A would make it clear that the same is not a provision for Review of the Award but only for correction of clerical or arithmetical mistakes in the Award. It is further provided in the sub-Section (1) of Section 13A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the Award dated 01.10.2003 by its Review Award no.16/03-04 dated 14.07.2004, which was also clearly passed beyond such period of six months. 9. In our considered view, the Review Award could not have been passed under Section 13A of the Act, which is meant only for correction of any clerical or arithmetical mistake. There is no other provision in the Act under which the said order dated 14.07.2004 could have been passed. 10. In the present case, the compensation for the structure on the land has been deducted from the Award dated 01.10.2003 by the Review Award dated 14.07.2004 on the ground of the same being illegal structure, which actually amounts to Review of the Award and cannot be said to be a correction of any clerical or arithmetical mistake. The question whether the structure on the land of the appellants was legal or illegal could only be decided after the parties were given opportunity to adduce evidence, which correction cannot be termed as correction of any clerical or arithmetical mistake. There being no provision under the Land Acquisition Act, 1894 for review of the Award, the passing of the order dated 14.07.2004 in Review Award no.16/03-04 cannot be justified in law. 11. Section 12 of the Act clearly provides that the Award of the Collector shall become final on the same being filed in the Collector?s office, of which the Collector shall give immediate notice to the persons interested. From the facts of this case, it is clear that the Award dated 01.10.2003, of which due notice had been given to the appellants and part compensation had also been paid to the appellants in pursuance thereto, had become final and the same could not have been reviewed, and that too beyond a period of six months, within which period only clerical or arithmetical mistakes could have been corrected. 12. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania (2010) 9 SCC 437 , has held as under:?…………… 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457 ] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641 ] .) 13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273 ] , Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321] , Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491 : AIR 1987 SC 2186 ] , State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification /modification/ correction is not permissible.?
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1
### Explanation:
A bare reading of the said Section 13A would make it clear that the same is not a provision for Review of the Award but only for correction of clerical or arithmetical mistakes in the Award. It is further provided in the sub-Section (1) of Section 13A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the Award dated 01.10.2003 by its Review Award no.16/03-04 dated 14.07.2004, which was also clearly passed beyond such period of six months.In our considered view, the Review Award could not have been passed under Section 13A of the Act, which is meant only for correction of any clerical or arithmetical mistake. There is no other provision in the Act under which the said order dated 14.07.2004 could have been passed.In the present case, the compensation for the structure on the land has been deducted from the Award dated 01.10.2003 by the Review Award dated 14.07.2004 on the ground of the same being illegal structure, which actually amounts to Review of the Award and cannot be said to be a correction of any clerical or arithmetical mistake. The question whether the structure on the land of the appellants was legal or illegal could only be decided after the parties were given opportunity to adduce evidence, which correction cannot be termed as correction of any clerical or arithmetical mistake. There being no provision under the Land Acquisition Act, 1894 for review of the Award, the passing of the order dated 14.07.2004 in Review Award no.16/03-04 cannot be justified in law.Section 12 of the Act clearly provides that the Award of the Collector shall become final on the same being filed in the Collector?s office, of which the Collector shall give immediate notice to the persons interested. From the facts of this case, it is clear that the Award dated 01.10.2003, of which due notice had been given to the appellants and part compensation had also been paid to the appellants in pursuance thereto, had become final and the same could not have been reviewed, and that too beyond a period of six months, within which period only clerical or arithmetical mistakes could have been corrected.It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned.
|
Manipal University Vs. Union Of India | admissions are made to NRI seats in excess of the 15 per cent of the intake, the quota reserved for other categories will be reduced adversely affecting the merit based selection. He also submitted that the 1997 Regulations empower the second Respondent to issue suitable directions to ensure merit based selections. Therefore, the second Respondent was competent to issue directions to restrict admissions to NRI seats for the years 2005 to 2008. He relied upon a judgment of this Court in Mridul Dhar v. Union of India (2008) 17 SCC 435 , wherein it was held that excess admission made by an institution in the management quota can be offset by reduction of seats in the succeeding years. He further submitted that there was no need for the second Respondent to challenge the findings of the High Court that Section 10-A of the Medical Council Act does not confer power on the second Respondent to regulate or supervise the admissions to sub categories.8. The issues before us are:-I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years?II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005?III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges?9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the total intake. The principal question that arises for our consideration is regarding the correctness of the directions issued by the second Respondent to the Appellant not to fill up 103 seats in the category of NRI/foreign students during the years 2005 to 2008.10. Determination of a quota for NRI seats is beyond the domain of the second Respondent. The direction given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication. It is relevant to refer to a judgment of the House of Lords in Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362:"But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to me to be the principle recognised by this House in Ashbury Company v. Riche (Law Rep. 7 H.L. 653) and in Attorney-General v. Great Eastern Railway Company (5 App. Cas. 473)".11. There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter. | 1[ds]9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the totaldirection given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication.There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter. | 1 | 2,178 | 605 | ### 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:
admissions are made to NRI seats in excess of the 15 per cent of the intake, the quota reserved for other categories will be reduced adversely affecting the merit based selection. He also submitted that the 1997 Regulations empower the second Respondent to issue suitable directions to ensure merit based selections. Therefore, the second Respondent was competent to issue directions to restrict admissions to NRI seats for the years 2005 to 2008. He relied upon a judgment of this Court in Mridul Dhar v. Union of India (2008) 17 SCC 435 , wherein it was held that excess admission made by an institution in the management quota can be offset by reduction of seats in the succeeding years. He further submitted that there was no need for the second Respondent to challenge the findings of the High Court that Section 10-A of the Medical Council Act does not confer power on the second Respondent to regulate or supervise the admissions to sub categories.8. The issues before us are:-I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years?II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005?III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges?9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the total intake. The principal question that arises for our consideration is regarding the correctness of the directions issued by the second Respondent to the Appellant not to fill up 103 seats in the category of NRI/foreign students during the years 2005 to 2008.10. Determination of a quota for NRI seats is beyond the domain of the second Respondent. The direction given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication. It is relevant to refer to a judgment of the House of Lords in Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362:"But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to me to be the principle recognised by this House in Ashbury Company v. Riche (Law Rep. 7 H.L. 653) and in Attorney-General v. Great Eastern Railway Company (5 App. Cas. 473)".11. There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter.
### Response:
1
### Explanation:
9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the totaldirection given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication.There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter.
|
The Keshav Mills Company Ltd. & Anr Vs. Union Of India And Ors | provide that the Board was not to dismiss any appeal without having first made a public local enquiry. The Local Government Board had made such rules and in conformity with these rules held an enquiry in the appeal preferred against the closing order. The house-owner attended the enquiry with his solicitor and also adduced evidence. After considering the facts and the evidence given at the enquiry as well as the report of the inspector who inspected the house the Local Government Board refused to interfere with the decision of the Borough Council not to determine the closing order. The house-owner thereupon obtained an order nisi for a writ of certiorari for the purpose of quashing of the closing order. One of the principal grounds urged by the house-owner was that he was entitled to see the report of the appellants inspector but the report had not been shown to him. A Divisional Court discharged the order nisi but the Court of Appeal reversed the decision and ordered the writ of certiorari to issue. The matter then went up to the House of Lords who allowed the appeal and upheld the closing order. Viscount Haldane L. C. in his judgment held that though the decision of the Board must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice it does not follow that the procedure of every such tribunal must be the same. In the absence of a declaration to the contrary, the Board was intended by Parliament to follow the procedure which is its own and is necessary if the administration is to be capable of doing its work efficiently. All that was necessary for the Board was to act in good faith and to listenfairly to both sides (Emphasis is ours). As to the contention that the report of the inspector should have been disclosed, his Lordship observed:"It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so, any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to."18. Lord Moulton in his judgment observed that since the appeal provided by the legislature is an appeal to an administrative department of a State and not to a judicial body it was enough if the Local Government Board preserved a judicial temper and performed its duties consciously with a proper feeling of responsibility. On the question whether it was necessary to disclose the report, his Lordship observed :"Like every administrative body, the Local Government Board must derive its knowledge from its agents and I am unable to see any reason why the reports which they make to the department should be made public. It would, in my opinion, cripple the usefulness of these enquiries..................... I dissociate myself from the remarks which have been made in this case in favour of a department making reports of this kind public. Such a practice would in my opinion, be decidedly mischievous."19. In a later case namely Danby and Sons Ltd. v. Minister of Health (1936) 1 KB 337 the law stated in (1915) AC 120 was reaffirmed. Indeed the law in England still stands unchanged.20. The law relating to observance of the rules of the natural justice has, however, made considerable strides since the case of (1915) AC 120. In particular, since the decision in (1964) AC 40 a copious case-law on the subject of natural justice has produced what has been described by some authorities as a detailed law of "administrative due process". In India also the decisions of this Court have extended the horizons of the rules of natural justice and their application. See for instance the judgment of this Court in Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150 ). The problem has also received considerable attention from various tribunals and committees set up in England to investigate the working of administrative tribunals and, in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a Minister. In fact a parliamentary committee known as the Franks Committee was set up in 1955 to examine this question. This Committee specifically dealt with the question of what is described as "Inspectors Reports". The Committee mentions that the evidence that the Committee received other than the evidence from Government departments was overwhelmingly in favour of "some degree of publication" of such reports. After summarising various arguments given in favour of as well as against the publication of the reports, the Committee recommended that "the right course is to publish the inspectors reports." The Committee also recommended that the parties concerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. It may be mentioned however, that these recommendations of the Committee were not accepted by the British Government.21. In our opinion it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report. The answer to this question also must always depend on the facts and circumstances of the case. It is not at all unlikely that there may be certain cases where unless the report is given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report. Whether the report should be furnished or not must therefore depend in every individual case on the merits of that case. We have no doubt that in the instant case non-disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants.22 | 0[ds]11. In the instant case, the Government of India came to hold the opinion that there was a substantial fall in the volume of production in respect of the Companys production of cotton textiles for which Government apparently found no justification having regard to the prevailing economic conditions. The Government was perfectly within its rights to appoint, under the terms of Sec. 15, an investigating body for the purpose of making full and complete investigation into the circumstances of the case. This is what the Government did and the appellants do not, as indeed they cannot, find fault with this action of the Government. It is the admitted case that for three years prior to 1969 the Company had been running into continual difficulties as a result of which the Company suffered losses which amounted upto Rs. 56.76 lakhs. In fact the mill had to be closed by the end of 1968. It was only on 31 May 1969 that Government of India appointed the Investigating Committee to investigate into the affairs of the Companys mill. The appellants do not make any grievance against the Investigating Committee regarding the manner in which they carried out the investigation. It is admitted that the Committee gave to the Company a full opportunity of being heard and also an opportunity of adducing evidence. There can therefore, be no complaint that upto this stage there was any failure to observe the rules of natural justice.justice.15. We must however deal with the specific point raised by the appellants that they should have been given further hearing by the Government before they took the final decision of taking over their undertaking under Section 18-A of the Act and that, in any event, they should have been supplied with a copy of the report of the Investigating Committee.16. In our opinion, since the appellants have received a fair treatment and also all reasonable opportunities to make out their own case before Government they cannot be allowed to make any grievance of the fact that they were not given a formal notice calling upon them to show cause why their undertaking should not be taken over or that they had not been furnished with a copy of the report.They had made all the representations that they could possibly have made against the proposed take over. By no stretch of imagination can it be said that the order for take-over took them by surprise.In fact Government gave them ample opportunity to reopen and run the mill on their own if they wanted to avoid the take-over. The blunt fact is that the appellant just did not have the necessary resources to do so. Insistence on a formal hearing in such circumstances is nothing but insistence on an empty formality.The law relating to observance of the rules of the natural justice has, however, made considerable strides since the case of (1915) AC 120. In particular, since the decision in (1964) AC 40 a copious case-law on the subject of natural justice has produced what has been described by some authorities as a detailed law of "administrative due process". In India also the decisions of this Court have extended the horizons of the rules of natural justice and their application. See for instance the judgment of this Court in Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150 ). The problem has also received considerable attention from various tribunals and committees set up in England to investigate the working of administrative tribunals and, in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a Minister. In fact a parliamentary committee known as the Franks Committee was set up in 1955 to examine this question. This Committee specifically dealt with the question of what is described as "Inspectors Reports". The Committee mentions that the evidence that the Committee received other than the evidence from Government departments was overwhelmingly in favour of "some degree of publication" of such reports. After summarising various arguments given in favour of as well as against the publication of the reports, the Committee recommended that "the right course is to publish the inspectors reports." The Committee also recommended that the parties concerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. It may be mentioned however, that these recommendations of the Committee were not accepted by the British Government.21. In our opinion it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report. The answer to this question also must always depend on the facts and circumstances of the case. It is not at all unlikely that there may be certain cases where unless the report is given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report. Whether the report should be furnished or not must therefore depend in every individual case on the merits of that case. We have no doubt that in the instant case non-disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants. | 0 | 6,877 | 974 | ### 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:
provide that the Board was not to dismiss any appeal without having first made a public local enquiry. The Local Government Board had made such rules and in conformity with these rules held an enquiry in the appeal preferred against the closing order. The house-owner attended the enquiry with his solicitor and also adduced evidence. After considering the facts and the evidence given at the enquiry as well as the report of the inspector who inspected the house the Local Government Board refused to interfere with the decision of the Borough Council not to determine the closing order. The house-owner thereupon obtained an order nisi for a writ of certiorari for the purpose of quashing of the closing order. One of the principal grounds urged by the house-owner was that he was entitled to see the report of the appellants inspector but the report had not been shown to him. A Divisional Court discharged the order nisi but the Court of Appeal reversed the decision and ordered the writ of certiorari to issue. The matter then went up to the House of Lords who allowed the appeal and upheld the closing order. Viscount Haldane L. C. in his judgment held that though the decision of the Board must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice it does not follow that the procedure of every such tribunal must be the same. In the absence of a declaration to the contrary, the Board was intended by Parliament to follow the procedure which is its own and is necessary if the administration is to be capable of doing its work efficiently. All that was necessary for the Board was to act in good faith and to listenfairly to both sides (Emphasis is ours). As to the contention that the report of the inspector should have been disclosed, his Lordship observed:"It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so, any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to."18. Lord Moulton in his judgment observed that since the appeal provided by the legislature is an appeal to an administrative department of a State and not to a judicial body it was enough if the Local Government Board preserved a judicial temper and performed its duties consciously with a proper feeling of responsibility. On the question whether it was necessary to disclose the report, his Lordship observed :"Like every administrative body, the Local Government Board must derive its knowledge from its agents and I am unable to see any reason why the reports which they make to the department should be made public. It would, in my opinion, cripple the usefulness of these enquiries..................... I dissociate myself from the remarks which have been made in this case in favour of a department making reports of this kind public. Such a practice would in my opinion, be decidedly mischievous."19. In a later case namely Danby and Sons Ltd. v. Minister of Health (1936) 1 KB 337 the law stated in (1915) AC 120 was reaffirmed. Indeed the law in England still stands unchanged.20. The law relating to observance of the rules of the natural justice has, however, made considerable strides since the case of (1915) AC 120. In particular, since the decision in (1964) AC 40 a copious case-law on the subject of natural justice has produced what has been described by some authorities as a detailed law of "administrative due process". In India also the decisions of this Court have extended the horizons of the rules of natural justice and their application. See for instance the judgment of this Court in Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150 ). The problem has also received considerable attention from various tribunals and committees set up in England to investigate the working of administrative tribunals and, in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a Minister. In fact a parliamentary committee known as the Franks Committee was set up in 1955 to examine this question. This Committee specifically dealt with the question of what is described as "Inspectors Reports". The Committee mentions that the evidence that the Committee received other than the evidence from Government departments was overwhelmingly in favour of "some degree of publication" of such reports. After summarising various arguments given in favour of as well as against the publication of the reports, the Committee recommended that "the right course is to publish the inspectors reports." The Committee also recommended that the parties concerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. It may be mentioned however, that these recommendations of the Committee were not accepted by the British Government.21. In our opinion it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report. The answer to this question also must always depend on the facts and circumstances of the case. It is not at all unlikely that there may be certain cases where unless the report is given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report. Whether the report should be furnished or not must therefore depend in every individual case on the merits of that case. We have no doubt that in the instant case non-disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants.22
### Response:
0
### Explanation:
11. In the instant case, the Government of India came to hold the opinion that there was a substantial fall in the volume of production in respect of the Companys production of cotton textiles for which Government apparently found no justification having regard to the prevailing economic conditions. The Government was perfectly within its rights to appoint, under the terms of Sec. 15, an investigating body for the purpose of making full and complete investigation into the circumstances of the case. This is what the Government did and the appellants do not, as indeed they cannot, find fault with this action of the Government. It is the admitted case that for three years prior to 1969 the Company had been running into continual difficulties as a result of which the Company suffered losses which amounted upto Rs. 56.76 lakhs. In fact the mill had to be closed by the end of 1968. It was only on 31 May 1969 that Government of India appointed the Investigating Committee to investigate into the affairs of the Companys mill. The appellants do not make any grievance against the Investigating Committee regarding the manner in which they carried out the investigation. It is admitted that the Committee gave to the Company a full opportunity of being heard and also an opportunity of adducing evidence. There can therefore, be no complaint that upto this stage there was any failure to observe the rules of natural justice.justice.15. We must however deal with the specific point raised by the appellants that they should have been given further hearing by the Government before they took the final decision of taking over their undertaking under Section 18-A of the Act and that, in any event, they should have been supplied with a copy of the report of the Investigating Committee.16. In our opinion, since the appellants have received a fair treatment and also all reasonable opportunities to make out their own case before Government they cannot be allowed to make any grievance of the fact that they were not given a formal notice calling upon them to show cause why their undertaking should not be taken over or that they had not been furnished with a copy of the report.They had made all the representations that they could possibly have made against the proposed take over. By no stretch of imagination can it be said that the order for take-over took them by surprise.In fact Government gave them ample opportunity to reopen and run the mill on their own if they wanted to avoid the take-over. The blunt fact is that the appellant just did not have the necessary resources to do so. Insistence on a formal hearing in such circumstances is nothing but insistence on an empty formality.The law relating to observance of the rules of the natural justice has, however, made considerable strides since the case of (1915) AC 120. In particular, since the decision in (1964) AC 40 a copious case-law on the subject of natural justice has produced what has been described by some authorities as a detailed law of "administrative due process". In India also the decisions of this Court have extended the horizons of the rules of natural justice and their application. See for instance the judgment of this Court in Kraipak v. Union of India, (1970) 1 SCR 457 = (AIR 1970 SC 150 ). The problem has also received considerable attention from various tribunals and committees set up in England to investigate the working of administrative tribunals and, in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a Minister. In fact a parliamentary committee known as the Franks Committee was set up in 1955 to examine this question. This Committee specifically dealt with the question of what is described as "Inspectors Reports". The Committee mentions that the evidence that the Committee received other than the evidence from Government departments was overwhelmingly in favour of "some degree of publication" of such reports. After summarising various arguments given in favour of as well as against the publication of the reports, the Committee recommended that "the right course is to publish the inspectors reports." The Committee also recommended that the parties concerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. It may be mentioned however, that these recommendations of the Committee were not accepted by the British Government.21. In our opinion it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report. The answer to this question also must always depend on the facts and circumstances of the case. It is not at all unlikely that there may be certain cases where unless the report is given the party concerned cannot make any effective representation about the action that Government takes or proposes to take on the basis of that report. Whether the report should be furnished or not must therefore depend in every individual case on the merits of that case. We have no doubt that in the instant case non-disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants.
|
center For Public Interest Litigation & Anr Vs. Union of India & Ors | then Superintendent of Police, CBI, Mumbai. 26. According to the appellants, the said file is in continuation of Part I file which was meant to be sent to the headquarters. In the writ petition, it was specifically alleged that this Part II file was opened in the Anti Corruption Branch-II CBI, Mumbai sometime in March, 1996 itself and the same was segregated from the original file and withheld by some officers of the CBI with ulterior motives. In reply to the said allegation, the CBI filed a counter affidavit before the High Court verified by one Shri K. Surenderan Nair, Deputy Superintendent of Police, CBI Special Task Force, New Delhi, wherein in paragraph 4 of the said affidavit it is stated thus : "So far as Part-II of File No. 1/636/D/95/AC/BOM in which Shri Y.P. Singh, the then Superintendent of Police-II, ACB, Mumbai Branch allegedly recommended that a FIR be registered and a Regular Case started, it was got checked up with Dy. Inspector General of Police, ACB Mumbai who has intimated that no such file is in existence in ACB Mumbai Branch." (emphasis supplied). 27. It is based on the use of the words "no such file is in existence" which made the appellants contend before the High Court that a deliberate incorrect statement was made by the CBI in its affidavit filed before the High Court with a view to deny the allegation made by the writ petitioners as to the motive of the superior officers of the CBI to suppress the contents of Part-II file opened by said Mr. Y.P. Singh, Superintendent of Police. The writ petitioners before the High Court in their rejoinder affidavit reproduced certain portions of the said Part-II file which contained the nothings of the senior officers of the CBI including the one dated 11.4.1996 of Mr. Raghuvanshi who instructed Mr. Nair to swear to the first affidavit of the CBI. Still when the CBI filed the first affidavit before the High Court on 19.8.1997, Mr. Raghuvanshi instructed the deponent of the said affidavit to state before the Court that "no such file is not in existence in ACB Mumbai Branch". When the rejoinder affidavit was filed, it seems the CBI was caught on the wrong foot and it tried to wriggle out of the situation by filing another affidavit - this time sworn to by Mr. Raghuvanshi himself wherein an ingenuous stand was taken that the intention of the CBI in informing the Court in the first affidavit by using the words "no such file is in existence in ACB Mumbai Branch" was to intimate the Court that no such file was available at the time of filing of the first affidavit. While examining this belated explanation of the CBI we have to bear in mind that the first affidavit of the CBI was, among other facts, in reply to the specific allegations of the writ petitioners as to the opening of and the contents of Part II file which, according to the writ petitioners, was being suppressed by the CBI from the Court. As a matter of fact, in para 18 of the writ petition, it was stated thus :- "Part-II file containing recommendation of registering a regular case in the matter was withheld by the then Joint Director, CBI Shri Mahendra Kumawat and was not sent to the head quarters." 28. While the CBI had to explain this averment made in para 18 of the writ petition, if really it wanted to convey to the Court as to the non-availability of Part-II file to comment on the above allegation, one would have expected the CBI to come forward with a simple explanation that it is unable to respond to the above allegation in view of the fact that the said file was not traceable instead of averring in the affidavit that no such file is in existence. The use of the words "no such file" clearly indicates that what the CBI intended to convey to the Court in the first affidavit was to tell the Court that such file never existed and it is only when the reply to the said affidavit was filed by the writ petitioners with a view to get over the earlier statement, the second affidavit was filed by Mr. Raghuvanshi interpreting the word "existence" to mean "not traceable". In the circumstances mentioned hereinabove, we are unable to accept this explanation of the CBI and are constrained to observe that the statement made in the first affidavit as to the existence of Part-II file can aptly be described as suggestion falsi and suppressio veri. That apart, the explanation given in the second affidavit of the CBI also discloses a sad state of affairs prevailing in the Organisation. In that affidavit, the CBI has stated before the Court that Part-II file with which the Court was concerned, was destroyed unauthorisedly with an ulterior motive by none other than an official of the CBI in cullousion with a senior officer of the same Organisation which fact, if true, reflects very poorly on the integrity of the CBI. We note herein with concern that Courts including this Court have very often relied on this Organisation for assistance by conducting special investigations. This reliance of the Courts on the CBI is based on the confidence that the Courts have reposed in it and the instances like the one with which we are now confronted with, are likely to shake our confidence in this Organisation. Therefore, we feel it is high time that this Organisation puts its house in order before it is too late. 29. Leaving apart the above observations of ours in regard to the CBI, having considered all the materials placed before us and the arguments addressed, we are satisfied that on the facts and the circumstances of this case, the prayer of the appellants to direct a criminal investigation into the deal in question by an appropriate agency, as prayed for in the appeal, cannot be granted. | 0[ds]25. This leaves us to consider the argument of the appellants in regard to the conduct of the CBI before the High Court as respondent No. 2 in the writ petition. Though the appellants have made many allegations against the investigation conducted by the CBI in this case, we do not think it is necessary for us to go into all these allegations except confining our consideration to the stand taken by the CBI before the High Court as to the existence ofFile No.1/636/D/95/AC/BOM said to have been opened by the then Superintendent of Police, CBI, Mumbai.According to the appellants, the said file is in continuation of Part I file which was meant to be sent to the headquarters. In the writ petition, it was specifically alleged that this Part II file was opened in the Anti CorruptionCBI, Mumbai sometime in March, 1996 itself and the same was segregated from the original file and withheld by some officers of the CBI with ulterior motives. In reply to the said allegation, the CBI filed a counter affidavit before the High Court verified by one Shri K. Surenderan Nair, Deputy Superintendent of Police, CBI Special Task Force, New Delhi, wherein in paragraph 4 of the said affidavit it is stated thusof File No. 1/636/D/95/AC/BOM in which Shri Y.P. Singh, the then Superintendent ofACB, Mumbai Branch allegedly recommended that a FIR be registered and a Regular Case started, it was got checked up with Dy. Inspector General of Police, ACB Mumbai who has intimated that no such file is in existence in ACB Mumbai Branch." (emphasis supplied).It is based on the use of the words "no such file is in existence" which made the appellants contend before the High Court that a deliberate incorrect statement was made by the CBI in its affidavit filed before the High Court with a view to deny the allegation made by the writ petitioners as to the motive of the superior officers of the CBI to suppress the contents offile opened by said Mr. Y.P. Singh, Superintendent of Police. The writ petitioners before the High Court in their rejoinder affidavit reproduced certain portions of the saidfile which contained the nothings of the senior officers of the CBI including the one dated 11.4.1996 of Mr. Raghuvanshi who instructed Mr. Nair to swear to the first affidavit of the CBI. Still when the CBI filed the first affidavit before the High Court on 19.8.1997, Mr. Raghuvanshi instructed the deponent of the said affidavit to state before the Court that "no such file is not in existence in ACB Mumbai Branch". When the rejoinder affidavit was filed, it seems the CBI was caught on the wrong foot and it tried to wriggle out of the situation by filing another affidavitthis time sworn to by Mr. Raghuvanshi himself wherein an ingenuous stand was taken that the intention of the CBI in informing the Court in the first affidavit by using the words "no such file is in existence in ACB Mumbai Branch" was to intimate the Court that no such file was available at the time of filing of the first affidavit. While examining this belated explanation of the CBI we have to bear in mind that the first affidavit of the CBI was, among other facts, in reply to the specific allegations of the writ petitioners as to the opening of and the contents of Part II file which, according to the writ petitioners, was being suppressed by the CBI from the Court. As a matter of fact, in para 18 of the writ petition, it was stated thusfile containing recommendation of registering a regular case in the matter was withheld by the then Joint Director, CBI Shri Mahendra Kumawat and was not sent to the head quarters.While the CBI had to explain this averment made in para 18 of the writ petition, if really it wanted to convey to the Court as to theII file to comment on the above allegation, one would have expected the CBI to come forward with a simple explanation that it is unable to respond to the above allegation in view of the fact that the said file was not traceable instead of averring in the affidavit that no such file is in existence. The use of the words "no such file" clearly indicates that what the CBI intended to convey to the Court in the first affidavit was to tell the Court that such file never existed and it is only when the reply to the said affidavit was filed by the writ petitioners with a view to get over the earlier statement, the second affidavit was filed by Mr. Raghuvanshi interpreting the word "existence" to mean "not traceable". In the circumstances mentioned hereinabove, we are unable to accept this explanation of the CBI and are constrained to observe that the statement made in the first affidavit as to the existence offile can aptly be described as suggestion falsi and suppressio veri. That apart, the explanation given in the second affidavit of the CBI also discloses a sad state of affairs prevailing in the Organisation. In that affidavit, the CBI has stated before the Court thatfile with which the Court was concerned, was destroyed unauthorisedly with an ulterior motive by none other than an official of the CBI in cullousion with a senior officer of the same Organisation which fact, if true, reflects very poorly on the integrity of the CBI. We note herein with concern that Courts including this Court have very often relied on this Organisation for assistance by conducting special investigations. This reliance of the Courts on the CBI is based on the confidence that the Courts have reposed in it and the instances like the one with which we are now confronted with, are likely to shake our confidence in this Organisation. Therefore, we feel it is high time that this Organisation puts its house in order before it is too late.Leaving apart the above observations of ours in regard to the CBI, having considered all the materials placed before us and the arguments addressed, we are satisfied that on the facts and the circumstances of this case, the prayer of the appellants to direct a criminal investigation into the deal in question by an appropriate agency, as prayed for in the appeal, cannot be granted. | 0 | 10,842 | 1,143 | ### 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:
then Superintendent of Police, CBI, Mumbai. 26. According to the appellants, the said file is in continuation of Part I file which was meant to be sent to the headquarters. In the writ petition, it was specifically alleged that this Part II file was opened in the Anti Corruption Branch-II CBI, Mumbai sometime in March, 1996 itself and the same was segregated from the original file and withheld by some officers of the CBI with ulterior motives. In reply to the said allegation, the CBI filed a counter affidavit before the High Court verified by one Shri K. Surenderan Nair, Deputy Superintendent of Police, CBI Special Task Force, New Delhi, wherein in paragraph 4 of the said affidavit it is stated thus : "So far as Part-II of File No. 1/636/D/95/AC/BOM in which Shri Y.P. Singh, the then Superintendent of Police-II, ACB, Mumbai Branch allegedly recommended that a FIR be registered and a Regular Case started, it was got checked up with Dy. Inspector General of Police, ACB Mumbai who has intimated that no such file is in existence in ACB Mumbai Branch." (emphasis supplied). 27. It is based on the use of the words "no such file is in existence" which made the appellants contend before the High Court that a deliberate incorrect statement was made by the CBI in its affidavit filed before the High Court with a view to deny the allegation made by the writ petitioners as to the motive of the superior officers of the CBI to suppress the contents of Part-II file opened by said Mr. Y.P. Singh, Superintendent of Police. The writ petitioners before the High Court in their rejoinder affidavit reproduced certain portions of the said Part-II file which contained the nothings of the senior officers of the CBI including the one dated 11.4.1996 of Mr. Raghuvanshi who instructed Mr. Nair to swear to the first affidavit of the CBI. Still when the CBI filed the first affidavit before the High Court on 19.8.1997, Mr. Raghuvanshi instructed the deponent of the said affidavit to state before the Court that "no such file is not in existence in ACB Mumbai Branch". When the rejoinder affidavit was filed, it seems the CBI was caught on the wrong foot and it tried to wriggle out of the situation by filing another affidavit - this time sworn to by Mr. Raghuvanshi himself wherein an ingenuous stand was taken that the intention of the CBI in informing the Court in the first affidavit by using the words "no such file is in existence in ACB Mumbai Branch" was to intimate the Court that no such file was available at the time of filing of the first affidavit. While examining this belated explanation of the CBI we have to bear in mind that the first affidavit of the CBI was, among other facts, in reply to the specific allegations of the writ petitioners as to the opening of and the contents of Part II file which, according to the writ petitioners, was being suppressed by the CBI from the Court. As a matter of fact, in para 18 of the writ petition, it was stated thus :- "Part-II file containing recommendation of registering a regular case in the matter was withheld by the then Joint Director, CBI Shri Mahendra Kumawat and was not sent to the head quarters." 28. While the CBI had to explain this averment made in para 18 of the writ petition, if really it wanted to convey to the Court as to the non-availability of Part-II file to comment on the above allegation, one would have expected the CBI to come forward with a simple explanation that it is unable to respond to the above allegation in view of the fact that the said file was not traceable instead of averring in the affidavit that no such file is in existence. The use of the words "no such file" clearly indicates that what the CBI intended to convey to the Court in the first affidavit was to tell the Court that such file never existed and it is only when the reply to the said affidavit was filed by the writ petitioners with a view to get over the earlier statement, the second affidavit was filed by Mr. Raghuvanshi interpreting the word "existence" to mean "not traceable". In the circumstances mentioned hereinabove, we are unable to accept this explanation of the CBI and are constrained to observe that the statement made in the first affidavit as to the existence of Part-II file can aptly be described as suggestion falsi and suppressio veri. That apart, the explanation given in the second affidavit of the CBI also discloses a sad state of affairs prevailing in the Organisation. In that affidavit, the CBI has stated before the Court that Part-II file with which the Court was concerned, was destroyed unauthorisedly with an ulterior motive by none other than an official of the CBI in cullousion with a senior officer of the same Organisation which fact, if true, reflects very poorly on the integrity of the CBI. We note herein with concern that Courts including this Court have very often relied on this Organisation for assistance by conducting special investigations. This reliance of the Courts on the CBI is based on the confidence that the Courts have reposed in it and the instances like the one with which we are now confronted with, are likely to shake our confidence in this Organisation. Therefore, we feel it is high time that this Organisation puts its house in order before it is too late. 29. Leaving apart the above observations of ours in regard to the CBI, having considered all the materials placed before us and the arguments addressed, we are satisfied that on the facts and the circumstances of this case, the prayer of the appellants to direct a criminal investigation into the deal in question by an appropriate agency, as prayed for in the appeal, cannot be granted.
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0
### Explanation:
to go into all these allegations except confining our consideration to the stand taken by the CBI before the High Court as to the existence ofFile No.1/636/D/95/AC/BOM said to have been opened by the then Superintendent of Police, CBI, Mumbai.According to the appellants, the said file is in continuation of Part I file which was meant to be sent to the headquarters. In the writ petition, it was specifically alleged that this Part II file was opened in the Anti CorruptionCBI, Mumbai sometime in March, 1996 itself and the same was segregated from the original file and withheld by some officers of the CBI with ulterior motives. In reply to the said allegation, the CBI filed a counter affidavit before the High Court verified by one Shri K. Surenderan Nair, Deputy Superintendent of Police, CBI Special Task Force, New Delhi, wherein in paragraph 4 of the said affidavit it is stated thusof File No. 1/636/D/95/AC/BOM in which Shri Y.P. Singh, the then Superintendent ofACB, Mumbai Branch allegedly recommended that a FIR be registered and a Regular Case started, it was got checked up with Dy. Inspector General of Police, ACB Mumbai who has intimated that no such file is in existence in ACB Mumbai Branch." (emphasis supplied).It is based on the use of the words "no such file is in existence" which made the appellants contend before the High Court that a deliberate incorrect statement was made by the CBI in its affidavit filed before the High Court with a view to deny the allegation made by the writ petitioners as to the motive of the superior officers of the CBI to suppress the contents offile opened by said Mr. Y.P. Singh, Superintendent of Police. The writ petitioners before the High Court in their rejoinder affidavit reproduced certain portions of the saidfile which contained the nothings of the senior officers of the CBI including the one dated 11.4.1996 of Mr. Raghuvanshi who instructed Mr. Nair to swear to the first affidavit of the CBI. Still when the CBI filed the first affidavit before the High Court on 19.8.1997, Mr. Raghuvanshi instructed the deponent of the said affidavit to state before the Court that "no such file is not in existence in ACB Mumbai Branch". When the rejoinder affidavit was filed, it seems the CBI was caught on the wrong foot and it tried to wriggle out of the situation by filing another affidavitthis time sworn to by Mr. Raghuvanshi himself wherein an ingenuous stand was taken that the intention of the CBI in informing the Court in the first affidavit by using the words "no such file is in existence in ACB Mumbai Branch" was to intimate the Court that no such file was available at the time of filing of the first affidavit. While examining this belated explanation of the CBI we have to bear in mind that the first affidavit of the CBI was, among other facts, in reply to the specific allegations of the writ petitioners as to the opening of and the contents of Part II file which, according to the writ petitioners, was being suppressed by the CBI from the Court. As a matter of fact, in para 18 of the writ petition, it was stated thusfile containing recommendation of registering a regular case in the matter was withheld by the then Joint Director, CBI Shri Mahendra Kumawat and was not sent to the head quarters.While the CBI had to explain this averment made in para 18 of the writ petition, if really it wanted to convey to the Court as to theII file to comment on the above allegation, one would have expected the CBI to come forward with a simple explanation that it is unable to respond to the above allegation in view of the fact that the said file was not traceable instead of averring in the affidavit that no such file is in existence. The use of the words "no such file" clearly indicates that what the CBI intended to convey to the Court in the first affidavit was to tell the Court that such file never existed and it is only when the reply to the said affidavit was filed by the writ petitioners with a view to get over the earlier statement, the second affidavit was filed by Mr. Raghuvanshi interpreting the word "existence" to mean "not traceable". In the circumstances mentioned hereinabove, we are unable to accept this explanation of the CBI and are constrained to observe that the statement made in the first affidavit as to the existence offile can aptly be described as suggestion falsi and suppressio veri. That apart, the explanation given in the second affidavit of the CBI also discloses a sad state of affairs prevailing in the Organisation. In that affidavit, the CBI has stated before the Court thatfile with which the Court was concerned, was destroyed unauthorisedly with an ulterior motive by none other than an official of the CBI in cullousion with a senior officer of the same Organisation which fact, if true, reflects very poorly on the integrity of the CBI. We note herein with concern that Courts including this Court have very often relied on this Organisation for assistance by conducting special investigations. This reliance of the Courts on the CBI is based on the confidence that the Courts have reposed in it and the instances like the one with which we are now confronted with, are likely to shake our confidence in this Organisation. Therefore, we feel it is high time that this Organisation puts its house in order before it is too late.Leaving apart the above observations of ours in regard to the CBI, having considered all the materials placed before us and the arguments addressed, we are satisfied that on the facts and the circumstances of this case, the prayer of the appellants to direct a criminal investigation into the deal in question by an appropriate agency, as prayed for in the appeal, cannot be granted.
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Indian Bank Limited, Madras Vs. Indian Bank Employees' Union & Others | Gajendragadkar, J.1. These two appeals are directed against the decision of the Labour Appellate Tribunal delivered on April 20, 1954 in the industrial dispute between the several Banks and their employees. It appears that this dispute was referred to the adjudication of the Sastri Tribunal by the Central Government on January 1, 1952. The Sastri Tribunal made its award covering a large number of points raised before it. The said award was challenged both by the Banks and their employees before the Labour Appellate Tribunal which gave its decision on April 20, 1954. The decision, like the award, dealt with several points of dispute between the parties. Against a part of this decision the present appeal has been filed by the Indian Bank Ltd., (hereinafter called the appellant) by special leave; and only two points are raised before us on its behalf by Mr. Sastri.2. The first point has reference to the direction given by the Sastri Tribunal in regard to the stoppage of annual increments for any particular year at the discretion of the Bank. The Sastri Tribunal directed that such annual increments may be stopped if the ratio of the Banks gross profits to the working fund during the previous year is less than 75 per cent of the average of similar ratios for the four years immediately preceding that previous year subject to the two provisos mentioned in paragraph 86 of the award. The propriety of this direction was questioned by the respondents before the Labour Appellate Tribunal; and to some extent the respondents plea succeeded. The appellate tribunal agreed that there should be a provision of the kind made by the award for suspension of increments but it thought that it would be better to alter the said direction in one particular, viz., that the general stoppage may only be allowed if the ratio of the gross profits to the working fund of the previous year is less than 50 per cent of the average of similar ratios in the four immediately preceding years (paragraph 183). Now the contention which the appellant seeks to raise before us is that the appellate tribunal erred in reducing the ratio from 75 per cent to 50 per cent.We do not see how we can entertain this contention in the present appeal under Art. 136. It is obvious that in fixing the relevant ratio which would justify the stoppage or suspension of increments no principle or rule could be relied upon and no objective date could be supplied. The conclusion in that behalf had necessarily to be based on empirical consideration of justice and fairplay and if the appellate tribunal though that 50 per cent would in the context be more appropriate and reasonable we cannot interfere with the said decision. Therefore the first contention raised by the appellant fails.3. The second contention raised is that the tribunal had no jurisdiction to entertain the respondents claim for a gratuity scheme having regard to the fact that under S. 25F of the Industrial Disputes Act the respondents are now entitled to claim retrenchment compensation. We have already considered this question and answered it in favour of the employees in the case of the Indian Hume Pipe Co., Ltd. v. Their Workmen, Civil Appeal No. 169 of 1958, D/- 16-10-1959; (AIR 1960 SC 12 ). Therefore the second question raised by the appellant must also be answered against it.4. Before passing final orders in these appeals it is necessary to refer to another point which these appeals have raised and which has been considered by this Court in the cases of State Bank of India v. Their Employees and Punjab National Bank. v. Its Employees, Civil Appeals Nos. 56 to 61 of 1957 and Civil Appeal No. 62 of 1957: (AIR 1960 SC 12 ). The said appeals as well as the two present appeals raised a common question about bonus and all of them were heard together by the Constitution Bench of this Court. The point about bonus raised by the banks has been allowed by the judgment of this Court delivered on May 12, 1959 in the cases of State Bank of India and Punjab National Bank (supra), Civil Appeals Nos. 56 to 61 of 1957 and Civil Appeal No. 62 of 1957: (AIR 1960 SC 12 ). Though the two present appeals were heard along with the said appeals no order was passed on them because two subsidiary questions still remained to be considered; and they were left to be decided by a Division Bench. That is how these appeals came before us for final disposal. | 0[ds]We do not see how we can entertain this contention in the present appeal under Art. 136. It is obvious that in fixing the relevant ratio which would justify the stoppage or suspension of increments no principle or rule could be relied upon and no objective date could be supplied. The conclusion in that behalf had necessarily to be based on empirical consideration of justice and fairplay and if the appellate tribunal though that 50 per cent would in the context be more appropriate and reasonable we cannot interfere with the said decision. Therefore the first contention raised by the appellanthave already considered this question and answered it in favour of the employees in the case of the Indian Hume Pipe Co., Ltd. v. Their Workmen, Civil Appeal No. 169 of 1958, D/(AIR 1960 SC 12 ). Therefore the second question raised by the appellant must also be answered against it. | 0 | 828 | 168 | ### 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:
Gajendragadkar, J.1. These two appeals are directed against the decision of the Labour Appellate Tribunal delivered on April 20, 1954 in the industrial dispute between the several Banks and their employees. It appears that this dispute was referred to the adjudication of the Sastri Tribunal by the Central Government on January 1, 1952. The Sastri Tribunal made its award covering a large number of points raised before it. The said award was challenged both by the Banks and their employees before the Labour Appellate Tribunal which gave its decision on April 20, 1954. The decision, like the award, dealt with several points of dispute between the parties. Against a part of this decision the present appeal has been filed by the Indian Bank Ltd., (hereinafter called the appellant) by special leave; and only two points are raised before us on its behalf by Mr. Sastri.2. The first point has reference to the direction given by the Sastri Tribunal in regard to the stoppage of annual increments for any particular year at the discretion of the Bank. The Sastri Tribunal directed that such annual increments may be stopped if the ratio of the Banks gross profits to the working fund during the previous year is less than 75 per cent of the average of similar ratios for the four years immediately preceding that previous year subject to the two provisos mentioned in paragraph 86 of the award. The propriety of this direction was questioned by the respondents before the Labour Appellate Tribunal; and to some extent the respondents plea succeeded. The appellate tribunal agreed that there should be a provision of the kind made by the award for suspension of increments but it thought that it would be better to alter the said direction in one particular, viz., that the general stoppage may only be allowed if the ratio of the gross profits to the working fund of the previous year is less than 50 per cent of the average of similar ratios in the four immediately preceding years (paragraph 183). Now the contention which the appellant seeks to raise before us is that the appellate tribunal erred in reducing the ratio from 75 per cent to 50 per cent.We do not see how we can entertain this contention in the present appeal under Art. 136. It is obvious that in fixing the relevant ratio which would justify the stoppage or suspension of increments no principle or rule could be relied upon and no objective date could be supplied. The conclusion in that behalf had necessarily to be based on empirical consideration of justice and fairplay and if the appellate tribunal though that 50 per cent would in the context be more appropriate and reasonable we cannot interfere with the said decision. Therefore the first contention raised by the appellant fails.3. The second contention raised is that the tribunal had no jurisdiction to entertain the respondents claim for a gratuity scheme having regard to the fact that under S. 25F of the Industrial Disputes Act the respondents are now entitled to claim retrenchment compensation. We have already considered this question and answered it in favour of the employees in the case of the Indian Hume Pipe Co., Ltd. v. Their Workmen, Civil Appeal No. 169 of 1958, D/- 16-10-1959; (AIR 1960 SC 12 ). Therefore the second question raised by the appellant must also be answered against it.4. Before passing final orders in these appeals it is necessary to refer to another point which these appeals have raised and which has been considered by this Court in the cases of State Bank of India v. Their Employees and Punjab National Bank. v. Its Employees, Civil Appeals Nos. 56 to 61 of 1957 and Civil Appeal No. 62 of 1957: (AIR 1960 SC 12 ). The said appeals as well as the two present appeals raised a common question about bonus and all of them were heard together by the Constitution Bench of this Court. The point about bonus raised by the banks has been allowed by the judgment of this Court delivered on May 12, 1959 in the cases of State Bank of India and Punjab National Bank (supra), Civil Appeals Nos. 56 to 61 of 1957 and Civil Appeal No. 62 of 1957: (AIR 1960 SC 12 ). Though the two present appeals were heard along with the said appeals no order was passed on them because two subsidiary questions still remained to be considered; and they were left to be decided by a Division Bench. That is how these appeals came before us for final disposal.
### Response:
0
### Explanation:
We do not see how we can entertain this contention in the present appeal under Art. 136. It is obvious that in fixing the relevant ratio which would justify the stoppage or suspension of increments no principle or rule could be relied upon and no objective date could be supplied. The conclusion in that behalf had necessarily to be based on empirical consideration of justice and fairplay and if the appellate tribunal though that 50 per cent would in the context be more appropriate and reasonable we cannot interfere with the said decision. Therefore the first contention raised by the appellanthave already considered this question and answered it in favour of the employees in the case of the Indian Hume Pipe Co., Ltd. v. Their Workmen, Civil Appeal No. 169 of 1958, D/(AIR 1960 SC 12 ). Therefore the second question raised by the appellant must also be answered against it.
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State Of U.P. Vs. Vam Organic Chemicals Ltd. | the regulation, and if we find that there is a broad co-relation between the expenditure and the fees charged, we should sustain the same." 41. The Court noticed the facts stated in the counter affidavits particularly setting up of a Headquarters laboratory and deployment of a good number of officers and employees who were engaged in manning the laboratory besides the staff which is posted at the distilleries. There was, according to the High Court, a broad co-relationship between the amount of fee charged and the expenses incurred for implementing and over seeing the regulation. The challenge to the levy of licence fee under Rule 2 was accordingly dismissed. As we have noted the appeal of Vam Organic was dismissed by this Court affirming this reasoning of the High Court because it found no reason to differ with it. 42. "Considering the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics I, to be outside the seisin of the State Legislature. Assuming that the denatured spirit may by whatever process be renatured, (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it. Even according to the demarcation of the fields of legislative competence as envisaged in Bihar Distillery, industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured spirit, of course, is wholly and exclusively industrial alcohol". 43. Besides, the fee is required to be justified with reference to the cost of such regulation. The industry is already paying a fee under Rule 2 for such regulation. Indeed the justification for levying the fee under Rule 3(a) is the identical justification given by the State for levying the fee under Rule 2. Presumably, a full complement of Excise Officers and staff are appointed by the State in the Excise Department to carry out their duties under the Act to oversee, control and keep duty on the various kinds of intoxicants under the Act. Having regard to the decision in Vam Organics I, we must also assume that apart from the normal strength, additional officers and staff were appointed to regulate the denaturation of the industrial alcohol. There is nothing to show that there has been any deployment of any additional staff to over-see the possibility of renaturation of the denatured spirit. 44. The question is (to borrow the language in Synthetics) whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, a fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as a regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures." The State has not produced any material to show that it was incurring any additional cost for any further regulation of denatured spirit. Any trace of a lingering doubt as to the propriety of the levy under Rule 3(a) must be taken to have been noted off effectively with the order passed by three Judges of this Court in the Writ Petition filed by Synthetics challenging the same levy as we have noted earlier. That order has resulted in granting Synthetics & Chemicals Ltd. relief from payment under Rule 3(a). The only distinction between the present respondents cases and Synthetics was that the respondents chose to challenge the levy before the High Court. That could be no rational basis for denying the respondents who are otherwise identically situated, the same relief. [See: Anil Kumar Neotia vs. Union of India (1998) 2 SCC 587]. In the absence of any such correlation the fee under Rule 3 is not a fee at all levied for the purpose of additional regulation or for any service rendered but is really a tax in the garb of a fee.45. The appeals must therefore be and are hereby dismissed. It appears from the records that since 1982 the High Court had passed interim orders in the series of writ petitions filed by the respondents challenging the validity of the imposition of the licence fee, staying the impugned levy. Separate writ petitions were filed in respect of the assessment years and interim orders obtained in respect of each year. For the excise year 1994-95 initially an order was passed staying the levy of the impugned licence fee subject to the respondents furnishing adequate security. This order was clarified on 2.9.1984 by allowing the respondents to furnish bank guarantee in respect of the licence fee for the excise year in question subject to which the levy was stayed. For the subsequent years the same interim order was passed. The respondent had therefore made no payment to the appellant of the licence fee but had furnished several bank guarantees which were kept renewed until the disposal of all the writ petitions by the High Court. After allowing the writ petition the High Court directed the discharge of the bank guarantees. Although this order was stayed when the appeal was admitted by this Court on 25.9.2000, there has been no collection of the disputed levy by the appellants. There is as such no question of any refund being directed of any amount by the appellant to the respondents. Where the levy itself has been held to be invalid, the State-appellant cannot be permitted to realize the amount recovered by the bank guarantees (See: Somaiya Organics vs. State of U.P. (2001) 5 SCC 519 para 35). | 0[ds]g the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics I, to be outside the seisin of the State Legislature. Assuming that the denatured spirit may by whatever process be renatured, (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it. Even according to the demarcation of the fields of legislative competence as envisaged in Bihar Distillery, industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured spirit, of course, is wholly and exclusively industrial alcohol".Besides, the fee is required to be justified with reference to the cost of such regulation. The industry is already paying a fee under Rule 2 for such regulation. Indeed the justification for levying the fee under Rule 3(a) is the identical justification given by the State for levying the fee under Rule 2. Presumably, a full complement of Excise Officers and staff are appointed by the State in the Excise Department to carry out their duties under the Act to oversee, control and keep duty on the various kinds of intoxicants under the Act. Having regard to the decision in Vam Organics I, we must also assume that apart from the normal strength, additional officers and staff were appointed to regulate the denaturation of the industrial alcohol. There is nothing to show that there has been any deployment of any additional staff tothe possibility of renaturation of the denatured spirit.The question is (to borrow the language in Synthetics) whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, a fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as a regulatory measure.Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures." The State has not produced any material to show that it was incurring any additional cost for any further regulation of denatured spirit. Any trace of a lingering doubt as to the propriety of the levy under Rule 3(a) must be taken to have been noted off effectively with the order passed by three Judges of this Court in the Writ Petition filed by Synthetics challenging the same levy as we have noted earlier. That order has resulted in granting Synthetics & Chemicals Ltd. relief from payment under Rule 3(a). The only distinction between the present respondents cases and Synthetics was that the respondents chose to challenge the levy before the High Court. That could be no rational basis for denying the respondents who are otherwise identically situated, the same relief. [See: Anil Kumar Neotia vs. Union of India (1998) 2 SCC 587]. In the absence of any such correlation the fee under Rule 3 is not a fee at all levied for the purpose of additional regulation or for any service rendered but is really a tax in the garb of a fee.45. The appeals must therefore be and are hereby dismissed. It appears from the records that since 1982 the High Court had passed interim orders in the series of writ petitions filed by the respondents challenging the validity of the imposition of the licence fee, staying the impugned levy. Separate writ petitions were filed in respect of the assessment years and interim orders obtained in respect of each year. For the excise yearinitially an order was passed staying the levy of the impugned licence fee subject to the respondents furnishing adequate security. This order was clarified on 2.9.1984 by allowing the respondents to furnish bank guarantee in respect of the licence fee for the excise year in question subject to which the levy was stayed. For the subsequent years the same interim order was passed. The respondent had therefore made no payment to the appellant of the licence fee but had furnished several bank guarantees which were kept renewed until the disposal of all the writ petitions by the High Court. After allowing the writ petition the High Court directed the discharge of the bank guarantees. Although this order was stayed when the appeal was admitted by this Court on 25.9.2000, there has been no collection of the disputed levy by the appellants. There is as such no question of any refund being directed of any amount by the appellant to the respondents. Where the levy itself has been held to be invalid, thecannot be permitted to realize the amount recovered by the bank guarantees (See: Somaiya Organics vs. State of U.P. (2001) 5 SCC 519 para 35). | 0 | 7,604 | 929 | ### 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:
the regulation, and if we find that there is a broad co-relation between the expenditure and the fees charged, we should sustain the same." 41. The Court noticed the facts stated in the counter affidavits particularly setting up of a Headquarters laboratory and deployment of a good number of officers and employees who were engaged in manning the laboratory besides the staff which is posted at the distilleries. There was, according to the High Court, a broad co-relationship between the amount of fee charged and the expenses incurred for implementing and over seeing the regulation. The challenge to the levy of licence fee under Rule 2 was accordingly dismissed. As we have noted the appeal of Vam Organic was dismissed by this Court affirming this reasoning of the High Court because it found no reason to differ with it. 42. "Considering the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics I, to be outside the seisin of the State Legislature. Assuming that the denatured spirit may by whatever process be renatured, (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it. Even according to the demarcation of the fields of legislative competence as envisaged in Bihar Distillery, industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured spirit, of course, is wholly and exclusively industrial alcohol". 43. Besides, the fee is required to be justified with reference to the cost of such regulation. The industry is already paying a fee under Rule 2 for such regulation. Indeed the justification for levying the fee under Rule 3(a) is the identical justification given by the State for levying the fee under Rule 2. Presumably, a full complement of Excise Officers and staff are appointed by the State in the Excise Department to carry out their duties under the Act to oversee, control and keep duty on the various kinds of intoxicants under the Act. Having regard to the decision in Vam Organics I, we must also assume that apart from the normal strength, additional officers and staff were appointed to regulate the denaturation of the industrial alcohol. There is nothing to show that there has been any deployment of any additional staff to over-see the possibility of renaturation of the denatured spirit. 44. The question is (to borrow the language in Synthetics) whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, a fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as a regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures." The State has not produced any material to show that it was incurring any additional cost for any further regulation of denatured spirit. Any trace of a lingering doubt as to the propriety of the levy under Rule 3(a) must be taken to have been noted off effectively with the order passed by three Judges of this Court in the Writ Petition filed by Synthetics challenging the same levy as we have noted earlier. That order has resulted in granting Synthetics & Chemicals Ltd. relief from payment under Rule 3(a). The only distinction between the present respondents cases and Synthetics was that the respondents chose to challenge the levy before the High Court. That could be no rational basis for denying the respondents who are otherwise identically situated, the same relief. [See: Anil Kumar Neotia vs. Union of India (1998) 2 SCC 587]. In the absence of any such correlation the fee under Rule 3 is not a fee at all levied for the purpose of additional regulation or for any service rendered but is really a tax in the garb of a fee.45. The appeals must therefore be and are hereby dismissed. It appears from the records that since 1982 the High Court had passed interim orders in the series of writ petitions filed by the respondents challenging the validity of the imposition of the licence fee, staying the impugned levy. Separate writ petitions were filed in respect of the assessment years and interim orders obtained in respect of each year. For the excise year 1994-95 initially an order was passed staying the levy of the impugned licence fee subject to the respondents furnishing adequate security. This order was clarified on 2.9.1984 by allowing the respondents to furnish bank guarantee in respect of the licence fee for the excise year in question subject to which the levy was stayed. For the subsequent years the same interim order was passed. The respondent had therefore made no payment to the appellant of the licence fee but had furnished several bank guarantees which were kept renewed until the disposal of all the writ petitions by the High Court. After allowing the writ petition the High Court directed the discharge of the bank guarantees. Although this order was stayed when the appeal was admitted by this Court on 25.9.2000, there has been no collection of the disputed levy by the appellants. There is as such no question of any refund being directed of any amount by the appellant to the respondents. Where the levy itself has been held to be invalid, the State-appellant cannot be permitted to realize the amount recovered by the bank guarantees (See: Somaiya Organics vs. State of U.P. (2001) 5 SCC 519 para 35).
### Response:
0
### Explanation:
g the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics I, to be outside the seisin of the State Legislature. Assuming that the denatured spirit may by whatever process be renatured, (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it. Even according to the demarcation of the fields of legislative competence as envisaged in Bihar Distillery, industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured spirit, of course, is wholly and exclusively industrial alcohol".Besides, the fee is required to be justified with reference to the cost of such regulation. The industry is already paying a fee under Rule 2 for such regulation. Indeed the justification for levying the fee under Rule 3(a) is the identical justification given by the State for levying the fee under Rule 2. Presumably, a full complement of Excise Officers and staff are appointed by the State in the Excise Department to carry out their duties under the Act to oversee, control and keep duty on the various kinds of intoxicants under the Act. Having regard to the decision in Vam Organics I, we must also assume that apart from the normal strength, additional officers and staff were appointed to regulate the denaturation of the industrial alcohol. There is nothing to show that there has been any deployment of any additional staff tothe possibility of renaturation of the denatured spirit.The question is (to borrow the language in Synthetics) whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, a fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as a regulatory measure.Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures." The State has not produced any material to show that it was incurring any additional cost for any further regulation of denatured spirit. Any trace of a lingering doubt as to the propriety of the levy under Rule 3(a) must be taken to have been noted off effectively with the order passed by three Judges of this Court in the Writ Petition filed by Synthetics challenging the same levy as we have noted earlier. That order has resulted in granting Synthetics & Chemicals Ltd. relief from payment under Rule 3(a). The only distinction between the present respondents cases and Synthetics was that the respondents chose to challenge the levy before the High Court. That could be no rational basis for denying the respondents who are otherwise identically situated, the same relief. [See: Anil Kumar Neotia vs. Union of India (1998) 2 SCC 587]. In the absence of any such correlation the fee under Rule 3 is not a fee at all levied for the purpose of additional regulation or for any service rendered but is really a tax in the garb of a fee.45. The appeals must therefore be and are hereby dismissed. It appears from the records that since 1982 the High Court had passed interim orders in the series of writ petitions filed by the respondents challenging the validity of the imposition of the licence fee, staying the impugned levy. Separate writ petitions were filed in respect of the assessment years and interim orders obtained in respect of each year. For the excise yearinitially an order was passed staying the levy of the impugned licence fee subject to the respondents furnishing adequate security. This order was clarified on 2.9.1984 by allowing the respondents to furnish bank guarantee in respect of the licence fee for the excise year in question subject to which the levy was stayed. For the subsequent years the same interim order was passed. The respondent had therefore made no payment to the appellant of the licence fee but had furnished several bank guarantees which were kept renewed until the disposal of all the writ petitions by the High Court. After allowing the writ petition the High Court directed the discharge of the bank guarantees. Although this order was stayed when the appeal was admitted by this Court on 25.9.2000, there has been no collection of the disputed levy by the appellants. There is as such no question of any refund being directed of any amount by the appellant to the respondents. Where the levy itself has been held to be invalid, thecannot be permitted to realize the amount recovered by the bank guarantees (See: Somaiya Organics vs. State of U.P. (2001) 5 SCC 519 para 35).
|
P. Chitharanja Menon & Ors Vs. A. Balakrishnan & Ors | G. O. the Director of Panchayats approved a final gradation list of Executive Officers of Panchayats as on 6th January, 1962. The appellants are ranked as 58, 59, 60, 61, 62 etc. The respondents made representations against Ex. P12 but these representations were not accepted and a list Ex. P8 was drawn up. The respondents again objected to the list and subsequently Ex. P12 was prepared. Objections(P14) were raised to Ex. P12 but they were rejected by order Ex. P15 and final list Ex. P17 was published in accordance with the suggestions made in Ex. P12.6. The contention on behalf of the respondents is that the order under Ex. P1 2 is against the position taken by the Government in Ex. P10) and Pl0(a) and the Director had no authority to prepare a list in contravention of Exs. P10 and Pl0(a). Ex. P12 was challenged on the ground that it is not in accordance with Ex. P-16 which settled the principles to govern the integration. It was therefore submitted that Ex. P12 and P17 must be quashed. Strong reliance was placed on the order of the Government dated 15th May, 1 961, which while it provided that Panchayat Officers Executive Officers who continue to hold their appointments at the time when the Act comes into force will be absorbed as Panchayat Executive Officers in the new Panchayats, secured the right of the staff of the District Board by providing that the staff of the Malabar District Board shall be absorbed as Panchayat Executive Officers in suitable Grades according to their qualifications, grades and suitability. On the basis of the principle of integration above cited it was submitted that if the vacancies in which the appellants and other Panchayat Executive Officers were absorbed arose after 1st January, 1962, the respondents would be entitled to be integrated along with the Panchayat Executive Officers and as they were drawing the same pay they ought to have been given an equal ranking. We have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim. The appointments of the appellants and other Panchayat Executive Officers were made before 31st December, 1961, and as the integration was to take effect from 1st January, 1962, they cannot have any grievance. Further, it will be seen from 6.0. MS.97/67/A &RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U.D. Clerks will be equated to the posts of Panchayat Executive Officers, 2nd Grade, 21 Lower Division Clerks and 8 Revenue Inspectors and 4 clerical attenders will be equated to the posts of the Panchayat Executive Officers 3rd grade. It is stated that respondents 1 to 4 come under this category and are only 3rd Grade Executive Officers. It will thus be seen that the respondents were not equated with the appellants and other Panchayat Executive Officers when they were integrated from the District Board service.The persons similarly situated as the respondents herein who were integrated from the District Board services filed writ petitions before the High Court impleading the present appellants challenging the gradation and failed in their attempt. The earliest petition is in O.P. No. 1431 of 1970. Justice Isaac who heard the petition observed that the petitioners came in the integrated service as 3rd Grade Executive -Officers and were promoted to 2nd Grade with effect from 6th February, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February , 1962, as 1st grade officers. The learned Judge further observed, "Even ignoring this, respondents 3 to 10 were I Grade Executive Officers from 16-2-1962, while the Petitioner has become even II Grade Executive Officer only with effect from 6-2-1966." As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, 1972.. Another writ petition No. O.P. No. 6423 filed by one of the persons integrated from the District Board Services, against the present appellants and others was also dismissed by Justice Isaac on 27th June, 1973. A writ appeal filed against the order of Justice Isaac in O.P. No- 1431 of 1970 was summarily dismissed by the Bench of the Kerala High Court.7. While the earlier judgments were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view. The decision under appeal proceeds on the basis that a regrettable mistake crept into the judgment in O.P. No. 1431 of 1970 and the earlier decision proceeded on the basis that there was a III Grade mentioned in G.O. 814 dated 17th November, 1962. The High Court was of the view that there was a III Grade under the G.O. above referred to the earlier decision missed the fact that these Grades were not applicable on 1st January, 1962. Though G.O. 814 of 1962 was , not placed before us we are not sure whether there was any mistake in the earlier judgment for the G.O. MS 97/67 dated 18th March, 1967, refers to persons being transferred from the Malabar District Board as Panchayat Executive Officers III Grade. Be that as it may we are satisfied that the respondents are not entitled to the reliefs prayed for by them in the writ petitions. As the appellants were promoted to a higher post before the respondents were integrated into the Government service on 1st January, 1962. Further throughout the appellants have been treated as occupying a higher post and respondents much lower post. Though the promotion of the appellants was before 1st January, 1962, and was confirmed by various orders of the Government the respondents herein did not choose to challenge the orders till the year, 1974. | 1[ds]We have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim. The appointments of the appellants and other Panchayat Executive Officers were made before 31st December, 1961, and as the integration was to take effect from 1st January, 1962, they cannot have any grievance. Further, it will be seen from 6.0. MS.97/67/A &RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U.D. Clerks will be equated to the posts of Panchayat Executive Officers, 2nd Grade, 21 Lower Division Clerks and 8 Revenue Inspectors and 4 clerical attenders will be equated to the posts of the Panchayat Executive Officers 3rd grade. It is stated that respondents 1 to 4 come under this category and are only 3rd Grade Executive Officers. It will thus be seen that the respondents were not equated with the appellants and other Panchayat Executive Officers when they were integrated from the District Board service.The persons similarly situated as the respondents herein who were integrated from the District Board services filed writ petitions before the High Court impleading the present appellants challenging the gradation and failed in their attempt. The earliest petition is in O.P. No. 1431 of 1970. Justice Isaac who heard the petition observed that the petitioners came in the integrated service as 3rd Grade Executive -Officers and were promoted to 2nd Grade with effect from 6th February, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February , 1962, as 1st grade officers. The learned Judge further observed, "Even ignoring this, respondents 3 to 10 were I Grade Executive Officers from 16-2-1962, while the Petitioner has become even II Grade Executive Officer only with effect from 6-2-1966." As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, 1972.. Another writ petition No. O.P. No. 6423 filed by one of the persons integrated from the District Board Services, against the present appellants and others was also dismissed by Justice Isaac on 27th June, 1973. A writ appeal filed against the order of Justice Isaac in O.P. No- 1431 of 1970 was summarily dismissed by the Bench of the Kerala Highthe earlier judgments were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view. The decision under appeal proceeds on the basis that a regrettable mistake crept into the judgment in O.P. No. 1431 of 1970 and the earlier decision proceeded on the basis that there was a III Grade mentioned in G.O. 814 dated 17th November, 1962. The High Court was of the view that there was a III Grade under the G.O. above referred to the earlier decision missed the fact that these Grades were not applicable on 1st January, 1962. Though G.O. 814 of 1962 was , not placed before us we are not sure whether there was any mistake in the earlier judgment for the G.O. MS 97/67 dated 18th March, 1967, refers to persons being transferred from the Malabar District Board as Panchayat Executive Officers III Grade. Be that as it may we are satisfied that the respondents are not entitled to the reliefs prayed for by them in the writ petitions. As the appellants were promoted to a higher post before the respondents were integrated into the Government service on 1st January, 1962. Further throughout the appellants have been treated as occupying a higher post and respondents much lower post. Though the promotion of the appellants was before 1st January, 1962, and was confirmed by various orders of the Government the respondents herein did not choose to challenge the orders till the year, 1974. | 1 | 2,308 | 745 | ### 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:
G. O. the Director of Panchayats approved a final gradation list of Executive Officers of Panchayats as on 6th January, 1962. The appellants are ranked as 58, 59, 60, 61, 62 etc. The respondents made representations against Ex. P12 but these representations were not accepted and a list Ex. P8 was drawn up. The respondents again objected to the list and subsequently Ex. P12 was prepared. Objections(P14) were raised to Ex. P12 but they were rejected by order Ex. P15 and final list Ex. P17 was published in accordance with the suggestions made in Ex. P12.6. The contention on behalf of the respondents is that the order under Ex. P1 2 is against the position taken by the Government in Ex. P10) and Pl0(a) and the Director had no authority to prepare a list in contravention of Exs. P10 and Pl0(a). Ex. P12 was challenged on the ground that it is not in accordance with Ex. P-16 which settled the principles to govern the integration. It was therefore submitted that Ex. P12 and P17 must be quashed. Strong reliance was placed on the order of the Government dated 15th May, 1 961, which while it provided that Panchayat Officers Executive Officers who continue to hold their appointments at the time when the Act comes into force will be absorbed as Panchayat Executive Officers in the new Panchayats, secured the right of the staff of the District Board by providing that the staff of the Malabar District Board shall be absorbed as Panchayat Executive Officers in suitable Grades according to their qualifications, grades and suitability. On the basis of the principle of integration above cited it was submitted that if the vacancies in which the appellants and other Panchayat Executive Officers were absorbed arose after 1st January, 1962, the respondents would be entitled to be integrated along with the Panchayat Executive Officers and as they were drawing the same pay they ought to have been given an equal ranking. We have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim. The appointments of the appellants and other Panchayat Executive Officers were made before 31st December, 1961, and as the integration was to take effect from 1st January, 1962, they cannot have any grievance. Further, it will be seen from 6.0. MS.97/67/A &RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U.D. Clerks will be equated to the posts of Panchayat Executive Officers, 2nd Grade, 21 Lower Division Clerks and 8 Revenue Inspectors and 4 clerical attenders will be equated to the posts of the Panchayat Executive Officers 3rd grade. It is stated that respondents 1 to 4 come under this category and are only 3rd Grade Executive Officers. It will thus be seen that the respondents were not equated with the appellants and other Panchayat Executive Officers when they were integrated from the District Board service.The persons similarly situated as the respondents herein who were integrated from the District Board services filed writ petitions before the High Court impleading the present appellants challenging the gradation and failed in their attempt. The earliest petition is in O.P. No. 1431 of 1970. Justice Isaac who heard the petition observed that the petitioners came in the integrated service as 3rd Grade Executive -Officers and were promoted to 2nd Grade with effect from 6th February, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February , 1962, as 1st grade officers. The learned Judge further observed, "Even ignoring this, respondents 3 to 10 were I Grade Executive Officers from 16-2-1962, while the Petitioner has become even II Grade Executive Officer only with effect from 6-2-1966." As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, 1972.. Another writ petition No. O.P. No. 6423 filed by one of the persons integrated from the District Board Services, against the present appellants and others was also dismissed by Justice Isaac on 27th June, 1973. A writ appeal filed against the order of Justice Isaac in O.P. No- 1431 of 1970 was summarily dismissed by the Bench of the Kerala High Court.7. While the earlier judgments were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view. The decision under appeal proceeds on the basis that a regrettable mistake crept into the judgment in O.P. No. 1431 of 1970 and the earlier decision proceeded on the basis that there was a III Grade mentioned in G.O. 814 dated 17th November, 1962. The High Court was of the view that there was a III Grade under the G.O. above referred to the earlier decision missed the fact that these Grades were not applicable on 1st January, 1962. Though G.O. 814 of 1962 was , not placed before us we are not sure whether there was any mistake in the earlier judgment for the G.O. MS 97/67 dated 18th March, 1967, refers to persons being transferred from the Malabar District Board as Panchayat Executive Officers III Grade. Be that as it may we are satisfied that the respondents are not entitled to the reliefs prayed for by them in the writ petitions. As the appellants were promoted to a higher post before the respondents were integrated into the Government service on 1st January, 1962. Further throughout the appellants have been treated as occupying a higher post and respondents much lower post. Though the promotion of the appellants was before 1st January, 1962, and was confirmed by various orders of the Government the respondents herein did not choose to challenge the orders till the year, 1974.
### Response:
1
### Explanation:
We have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim. The appointments of the appellants and other Panchayat Executive Officers were made before 31st December, 1961, and as the integration was to take effect from 1st January, 1962, they cannot have any grievance. Further, it will be seen from 6.0. MS.97/67/A &RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U.D. Clerks will be equated to the posts of Panchayat Executive Officers, 2nd Grade, 21 Lower Division Clerks and 8 Revenue Inspectors and 4 clerical attenders will be equated to the posts of the Panchayat Executive Officers 3rd grade. It is stated that respondents 1 to 4 come under this category and are only 3rd Grade Executive Officers. It will thus be seen that the respondents were not equated with the appellants and other Panchayat Executive Officers when they were integrated from the District Board service.The persons similarly situated as the respondents herein who were integrated from the District Board services filed writ petitions before the High Court impleading the present appellants challenging the gradation and failed in their attempt. The earliest petition is in O.P. No. 1431 of 1970. Justice Isaac who heard the petition observed that the petitioners came in the integrated service as 3rd Grade Executive -Officers and were promoted to 2nd Grade with effect from 6th February, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February , 1962, as 1st grade officers. The learned Judge further observed, "Even ignoring this, respondents 3 to 10 were I Grade Executive Officers from 16-2-1962, while the Petitioner has become even II Grade Executive Officer only with effect from 6-2-1966." As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, 1972.. Another writ petition No. O.P. No. 6423 filed by one of the persons integrated from the District Board Services, against the present appellants and others was also dismissed by Justice Isaac on 27th June, 1973. A writ appeal filed against the order of Justice Isaac in O.P. No- 1431 of 1970 was summarily dismissed by the Bench of the Kerala Highthe earlier judgments were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view. The decision under appeal proceeds on the basis that a regrettable mistake crept into the judgment in O.P. No. 1431 of 1970 and the earlier decision proceeded on the basis that there was a III Grade mentioned in G.O. 814 dated 17th November, 1962. The High Court was of the view that there was a III Grade under the G.O. above referred to the earlier decision missed the fact that these Grades were not applicable on 1st January, 1962. Though G.O. 814 of 1962 was , not placed before us we are not sure whether there was any mistake in the earlier judgment for the G.O. MS 97/67 dated 18th March, 1967, refers to persons being transferred from the Malabar District Board as Panchayat Executive Officers III Grade. Be that as it may we are satisfied that the respondents are not entitled to the reliefs prayed for by them in the writ petitions. As the appellants were promoted to a higher post before the respondents were integrated into the Government service on 1st January, 1962. Further throughout the appellants have been treated as occupying a higher post and respondents much lower post. Though the promotion of the appellants was before 1st January, 1962, and was confirmed by various orders of the Government the respondents herein did not choose to challenge the orders till the year, 1974.
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Surinder Kumar Vs. State of Haryana | verification of both the documents show different doctors have certified and made such a statement. Dr. Vipul Sood, PW-9, PGI Chandigarh in his evidence has stated Kamlesh Rani was admitted in the Emergency ward of PGI Hospital on 26.06.1991 at about 4.30 a.m. with 95% burns. He also deposed that when Ex. C/1 was submitted by P.K. Sharma, PW-2 on which he gave his opinion that the patient is fit to make a statement on 26.06.1991 at about 7.25 a.m. It is clear that at the time when PW-2 recorded the statement of the deceased Dr. Vipul Sood (PW-9) was not present and subsequently on the request of the police officer, he offered his opinion to the effect that the patient was fit to make a statement. The procedure adopted by PW-2 while recording the statement of dying declaration is not acceptable. 12) As per the prosecution, the incident took place at 2 a.m. on 26.06.1991 and as per her statement, the occurrence of burning was in the evening of 25.06.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor. As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant. 13) It is settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers.14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co- tenants in the same premises, their statements were not recorded which means that nobody supported the version of the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.15) It is the consistent stand of the defence from the beginning that the appellant had been falsely implicated, more particularly, at the instance of I.O. Hira Lal (PW-11) who had a previous enmity with him for asking some bribe for running his business of ghee. As rightly pointed out, other witnesses who accompanied the injured Kamlesh Rani did not make any statement involving the appellant in the burning of Kamlesh Rani till 29.06.1991.16) We are satisfied that the dying declaration was totally in conflict with the version of the prosecution as to the time of her burning, relation of the appellant with the deceased, except for the implication part, which was clarified in favour of the appellant by PW-10 Surinder Singh in his cross- examination. In such circumstances, the dying declaration was totally unacceptable, could not be believed as trustworthy, which was rightly not believed so by the trial Court.17) Inasmuch as the acquittal by the trial Court and conviction by the High Court is solely based on the dying declaration, in view of our above discussion, there is no need to traverse the evidence and other factual details. In view of the infirmities pointed above, and contradictions as to the occurrence, failure on the part of the Executive Magistrate in obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not attested by any doctor and also his statement which is contradictory to that of the deceased Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness, as rightly observed by the trial Court, we hold that the dying declaration Ex.PD does not inspire confidence in the mind of the Court. Inasmuch as the dying declaration is the only piece of evidence put forward against the accused in the light of our discussion and reasoning, the accused - Surinder Kumar is entitled to the benefit of doubt. 18) Consequently, | 1[ds]The trial Court based on the dying declaration Ex. PD alleged to have been made by the deceased-Kamlesh Rani before Shri P.K. Sharma (PW-2), Executive Magistrate, Chandigarh and after finding that it does not inspire confidence in the mind of the Court and being the only evidence appearing against the accused, after giving the benefit of doubt in his favour, acquitted from the charges levelled against him. On the other hand, the High Court relying on the dying declaration holding that it is extremely difficult to reject the dying declaration altogether and finding that in the said dying declaration the deceased had positively stated that she had been immolated by the accused/appellant, set aside the order of acquittal passed by the trial Court and found him guilty under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. In view of the same, the only question for consideration in this appeal is whether the dying declaration Ex. PD of Kamlesh Rani is reliable, acceptable and based on which conviction isis settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers.14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co- tenants in the same premises, their statements were not recorded which means that nobody supported the version of the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.15) It is the consistent stand of the defence from the beginning that the appellant had been falsely implicated, more particularly, at the instance of I.O. Hira Lal (PW-11) who had a previous enmity with him for asking some bribe for running his business of ghee. As rightly pointed out, other witnesses who accompanied the injured Kamlesh Rani did not make any statement involving the appellant in the burning of Kamlesh Rani till 29.06.1991.16) We are satisfied that the dying declaration was totally in conflict with the version of the prosecution as to the time of her burning, relation of the appellant with the deceased, except for the implication part, which was clarified in favour of the appellant by PW-10 Surinder Singh in his cross- examination. In such circumstances, the dying declaration was totally unacceptable, could not be believed as trustworthy, which was rightly not believed so by the trial Court.17) Inasmuch as the acquittal by the trial Court and conviction by the High Court is solely based on the dying declaration, in view of our above discussion, there is no need to traverse the evidence and other factual details. In view of the infirmities pointed above, and contradictions as to the occurrence, failure on the part of the Executive Magistrate in obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not attested by any doctor and also his statement which is contradictory to that of the deceased Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness, as rightly observed by the trial Court, we hold that the dying declaration Ex.PD does not inspire confidence in the mind of the Court. Inasmuch as the dying declaration is the only piece of evidence put forward against the accused in the light of our discussion and reasoning, the accused - Surinder Kumar is entitled to the benefit of doubt. | 1 | 5,134 | 939 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
verification of both the documents show different doctors have certified and made such a statement. Dr. Vipul Sood, PW-9, PGI Chandigarh in his evidence has stated Kamlesh Rani was admitted in the Emergency ward of PGI Hospital on 26.06.1991 at about 4.30 a.m. with 95% burns. He also deposed that when Ex. C/1 was submitted by P.K. Sharma, PW-2 on which he gave his opinion that the patient is fit to make a statement on 26.06.1991 at about 7.25 a.m. It is clear that at the time when PW-2 recorded the statement of the deceased Dr. Vipul Sood (PW-9) was not present and subsequently on the request of the police officer, he offered his opinion to the effect that the patient was fit to make a statement. The procedure adopted by PW-2 while recording the statement of dying declaration is not acceptable. 12) As per the prosecution, the incident took place at 2 a.m. on 26.06.1991 and as per her statement, the occurrence of burning was in the evening of 25.06.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor. As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant. 13) It is settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers.14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co- tenants in the same premises, their statements were not recorded which means that nobody supported the version of the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.15) It is the consistent stand of the defence from the beginning that the appellant had been falsely implicated, more particularly, at the instance of I.O. Hira Lal (PW-11) who had a previous enmity with him for asking some bribe for running his business of ghee. As rightly pointed out, other witnesses who accompanied the injured Kamlesh Rani did not make any statement involving the appellant in the burning of Kamlesh Rani till 29.06.1991.16) We are satisfied that the dying declaration was totally in conflict with the version of the prosecution as to the time of her burning, relation of the appellant with the deceased, except for the implication part, which was clarified in favour of the appellant by PW-10 Surinder Singh in his cross- examination. In such circumstances, the dying declaration was totally unacceptable, could not be believed as trustworthy, which was rightly not believed so by the trial Court.17) Inasmuch as the acquittal by the trial Court and conviction by the High Court is solely based on the dying declaration, in view of our above discussion, there is no need to traverse the evidence and other factual details. In view of the infirmities pointed above, and contradictions as to the occurrence, failure on the part of the Executive Magistrate in obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not attested by any doctor and also his statement which is contradictory to that of the deceased Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness, as rightly observed by the trial Court, we hold that the dying declaration Ex.PD does not inspire confidence in the mind of the Court. Inasmuch as the dying declaration is the only piece of evidence put forward against the accused in the light of our discussion and reasoning, the accused - Surinder Kumar is entitled to the benefit of doubt. 18) Consequently,
### Response:
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### Explanation:
The trial Court based on the dying declaration Ex. PD alleged to have been made by the deceased-Kamlesh Rani before Shri P.K. Sharma (PW-2), Executive Magistrate, Chandigarh and after finding that it does not inspire confidence in the mind of the Court and being the only evidence appearing against the accused, after giving the benefit of doubt in his favour, acquitted from the charges levelled against him. On the other hand, the High Court relying on the dying declaration holding that it is extremely difficult to reject the dying declaration altogether and finding that in the said dying declaration the deceased had positively stated that she had been immolated by the accused/appellant, set aside the order of acquittal passed by the trial Court and found him guilty under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. In view of the same, the only question for consideration in this appeal is whether the dying declaration Ex. PD of Kamlesh Rani is reliable, acceptable and based on which conviction isis settled that a valid and well reasoned judgment of the trial Court is seldom set aside unless there was some perversity or not based on correct law. From the materials available, absolutely there was no case to presume that the death of the deceased occurred at the hands of the appellant especially, when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers.14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co- tenants in the same premises, their statements were not recorded which means that nobody supported the version of the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal.15) It is the consistent stand of the defence from the beginning that the appellant had been falsely implicated, more particularly, at the instance of I.O. Hira Lal (PW-11) who had a previous enmity with him for asking some bribe for running his business of ghee. As rightly pointed out, other witnesses who accompanied the injured Kamlesh Rani did not make any statement involving the appellant in the burning of Kamlesh Rani till 29.06.1991.16) We are satisfied that the dying declaration was totally in conflict with the version of the prosecution as to the time of her burning, relation of the appellant with the deceased, except for the implication part, which was clarified in favour of the appellant by PW-10 Surinder Singh in his cross- examination. In such circumstances, the dying declaration was totally unacceptable, could not be believed as trustworthy, which was rightly not believed so by the trial Court.17) Inasmuch as the acquittal by the trial Court and conviction by the High Court is solely based on the dying declaration, in view of our above discussion, there is no need to traverse the evidence and other factual details. In view of the infirmities pointed above, and contradictions as to the occurrence, failure on the part of the Executive Magistrate in obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not attested by any doctor and also his statement which is contradictory to that of the deceased Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness, as rightly observed by the trial Court, we hold that the dying declaration Ex.PD does not inspire confidence in the mind of the Court. Inasmuch as the dying declaration is the only piece of evidence put forward against the accused in the light of our discussion and reasoning, the accused - Surinder Kumar is entitled to the benefit of doubt.
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Khujji @ Surendra Tiwari Vs. The State Of Madhya Pradesh | case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reached its own Conclusion in regard to the proof of various facts and circumstances relied on by the prosecution. We are, therefore, in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases cited oh behalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded by it. 15. Does the decision in Krishna Govind Patil (supra) take a different view? It is true that the attention of the Bench which disposed of Brathis case was not invited to this decision. But, in our opinion, this decision does not take a view inconsistent with the ratio laid down in Brathis case. The facts reveal that Krishna Govind Patil and three others were put up for trial for the murder of one Vishwanath. They were charged under Section 302/34, IPC and were also separately charged under Section 302, IPC. Accused Nos. 1, 3 and 4 pleaded an alibi while accused No. 2 raised the plea of private defence. The Trial Court acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version of accused No. 2 was a probable one. The State appealed against the order of acquittal under Section 302/34, but not against the acquittal under Section 302, IPC. The High Court confirmed the acquittal of accused Nos. 1, 3 and 4 on the ground that the evidence regarding their participation in the commission of the crime was doubtful but convicted accused No. 2 on the ground that one or more of them might have participated in the commission of the offence. Accused No. 2, therefore, preferred an appeal to this Court and contended that when three of the four named persons were acquitted the High Court was not justified in convicting him on the basis of constructive liability. This Court held that before a Court can convict a person under Section 302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of Section 34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case. 16. Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under Section 302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Inherent of this submission is the assumption that the fatal blow was given by someone else. That establishes the fact that more that one person participated in the commission of the crime. We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. The failure on the part of the prosecution witnesses PWs 3 and 4 to identify the others does not alter the situation. We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co-accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but as rightly pointed in Brathis case this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence. In that view of the matter we think that the conviction of the appellant can be sustained with the aid of Section 34 or 149, IPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of Section 34, IPC. We, therefore, cannot agree with the submission of the learned Counsel for the appellant that at best the conviction can be recorded under Section 324, IPC. We confirm the conviction of the appellant under Section 302, IPC, with the aid of Section 34 and maintain the sentence awarded to him. | 0[ds]We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural norhis statement that he had come to purchase vegetablesdo not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed that the trial court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of theis, therefore, clear from the decision of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions, PW5s evidence could not be discarded since nothing had surfaced in cross-examination to shake his evidence. We are, therefore, satisfied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of theappellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr.are of the opinion, for reasons which we will immediately state, that the contention urged bycounsel for theappellant is notall the aforesaid cases are clearly distinguishable from the facts of Brathis case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reachedn in regard to the proof of various facts and circumstances relied on by the prosecution. We are,in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases citedbehalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded byCourt held that before a Court can convict a person under302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case.Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Inherent of this submission is the assumption that the fatal blow was given by someone else. That establishes the fact that more that one person participated in the commission of the crime. We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. The failure on the part of the prosecution witnesses PWs 3 and 4 to identify the others does not alter the situation. We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co-accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but aspointed in Brathis case this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence. In that view of the matter we think that the conviction of the appellant can be sustained with the aid ofIPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of34, IPC. We, therefore, cannot agree with the submission of the learnedcounsel for theappellant that at best the conviction can be recorded under324, IPC. We confirm the conviction of the appellant under302, IPC, with the aid of34 and maintain the sentence awarded to him. | 0 | 9,564 | 1,338 | ### 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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case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reached its own Conclusion in regard to the proof of various facts and circumstances relied on by the prosecution. We are, therefore, in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases cited oh behalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded by it. 15. Does the decision in Krishna Govind Patil (supra) take a different view? It is true that the attention of the Bench which disposed of Brathis case was not invited to this decision. But, in our opinion, this decision does not take a view inconsistent with the ratio laid down in Brathis case. The facts reveal that Krishna Govind Patil and three others were put up for trial for the murder of one Vishwanath. They were charged under Section 302/34, IPC and were also separately charged under Section 302, IPC. Accused Nos. 1, 3 and 4 pleaded an alibi while accused No. 2 raised the plea of private defence. The Trial Court acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version of accused No. 2 was a probable one. The State appealed against the order of acquittal under Section 302/34, but not against the acquittal under Section 302, IPC. The High Court confirmed the acquittal of accused Nos. 1, 3 and 4 on the ground that the evidence regarding their participation in the commission of the crime was doubtful but convicted accused No. 2 on the ground that one or more of them might have participated in the commission of the offence. Accused No. 2, therefore, preferred an appeal to this Court and contended that when three of the four named persons were acquitted the High Court was not justified in convicting him on the basis of constructive liability. This Court held that before a Court can convict a person under Section 302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of Section 34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case. 16. Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under Section 302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Inherent of this submission is the assumption that the fatal blow was given by someone else. That establishes the fact that more that one person participated in the commission of the crime. We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. The failure on the part of the prosecution witnesses PWs 3 and 4 to identify the others does not alter the situation. We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co-accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but as rightly pointed in Brathis case this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence. In that view of the matter we think that the conviction of the appellant can be sustained with the aid of Section 34 or 149, IPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of Section 34, IPC. We, therefore, cannot agree with the submission of the learned Counsel for the appellant that at best the conviction can be recorded under Section 324, IPC. We confirm the conviction of the appellant under Section 302, IPC, with the aid of Section 34 and maintain the sentence awarded to him.
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to shake his evidence. We are, therefore, satisfied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of theappellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr.are of the opinion, for reasons which we will immediately state, that the contention urged bycounsel for theappellant is notall the aforesaid cases are clearly distinguishable from the facts of Brathis case where the High Court had clearly departed from the appreciation of the evidence by the Trial Court and had reachedn in regard to the proof of various facts and circumstances relied on by the prosecution. We are,in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases citedbehalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded byCourt held that before a Court can convict a person under302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or unnamed, for committing the offence. When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not participate in the offence. It was further held that the effect of the acquittal of the three co-accused is that they did not co-jointly and with the appellant commit the murder. These observations have to be read in the context of the facts stated above. The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of34. This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion different from the conclusion recorded by the Trial Court in regard to the participation of the other co-accused. This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathis case. We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathis case per incuriam. We are, therefore, in respectful agreement with the law explained in Brathis case.Coming now to the facts of this case the Trial Court acquitted the co-accused but convicted the appellant under302, IPC. The High Court has confirmed that conviction. Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Inherent of this submission is the assumption that the fatal blow was given by someone else. That establishes the fact that more that one person participated in the commission of the crime. We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. The failure on the part of the prosecution witnesses PWs 3 and 4 to identify the others does not alter the situation. We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co-accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but aspointed in Brathis case this Court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a review of the evidence. In that view of the matter we think that the conviction of the appellant can be sustained with the aid ofIPC, as the case may be. In the present case we feel it safe to confirm the conviction of the appellant with the aid of34, IPC. We, therefore, cannot agree with the submission of the learnedcounsel for theappellant that at best the conviction can be recorded under324, IPC. We confirm the conviction of the appellant under302, IPC, with the aid of34 and maintain the sentence awarded to him.
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City & Industrial Development Corporation (Cidco) Vs. Percival Joseph Pareira & Others | country planning, an officer to be called the Town Planning Officer and Chief Executive Officer. The Chairman and the Vice-Chairman and all other members shall be appointed by the State Government.""113. (3A) Having regard to the complexity and magnitude of the work involved in developing any area as a site for the new town, the time required for setting up new machinery for undertaking and completing such work of development, and the comparative speed with which such work can be undertaken and completed in the public interest, if the work is done through the agency of a corporation including a company owned or controlled by the State as a new town, the State Government may, notwithstanding anything contained in sub-section (2), require the work of developing and disposing of land in the area of a new town to be done by any such corporation, company or subsidiary company aforesaid, as an agent of the State Government; and thereupon, such corporation or company shall, in relation to such area, be declared by the State Government, by notification in the Official Gazette, to be the New Town Development Authority for that area.)""116. Acquisition of land by Development Authority constituted under section 113(2):- A Development Authority (constituted under sub-section (2) of section 113) shall have all the powers of a Planning Authority under this Act as provided in Chapter VII for the purpose of acquisition either by agreement or under the Land Acquisition Act, 1894 (I of 1894) of-(a) any land within the area designated under this Act as the site of the new town;(b) any land adjacent to that area which is required for purposes connected with the development of the new town; and(c) any land whether adjacent to that area or not which is required for provision of services of amenities for the purposes of the new town." (emphasis supplied)"50. Acquisition of land at cost of a local authority or Company. -(1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or company.(2) In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation.Provided that no such local authority or company shall be entitled to demand a reference under section 18."17. From bare reading of Section 113(3-A) of the Maharashtra Regional And Town Planning Act, 1966 it is crystal clear that the New Town Development Authority is declared as an Agent of the State Government. This statutory status bestowed on the Appellant cannot be whittled down nor can be elevated to any other position by an administrative decision. Notably, the State Government by Government Resolution, dated 12th February, 2008 specifically stated that the entire costs of compensation for acquisition of land for CIDCO will be borne by the State Government. Not only that the State Government by Government Resolution dated 12th August, 2010 has merely authorized the CIDCO to appear on behalf of the State Government, to protect the interest of the State in the References under section 18 and/or 28-A of the Land Acquisition Act, 1894. This itself shows that the acquiring body is the State Government and it has appointed CIDCO as its Agent. Even bare reading of section 50 of the Land Acquisition Act, 1894 shows that the Authority which bears the expenses of acquisition is entitled to appear and defend in Reference Application.In the present case, admittedly, the State Government is bearing the entire expenses of acquisition of the land. CIDCO is getting only Rs.5,00,000/- per year towards administrative expenses. Further, the Appellant - CIDCO on its own pleaded before the Income Tax Appellate Authority that it was acting as an Agent of the State Government and nothing more. On accepting that contention, it has been held that CIDCO was not liable to pay income tax on the income derived from the development activities. Thus, it is not open to the Appellant to now contend to the contrary, or for that matter, approbate and reprobate. In any way, considering the provisions of Section 113 (3-A) of the Maharashtra Regional And Town Planning Act, 1966 it is not possible to hold that the Appellant - CIDCO is the acquiring body. It is specifically stated in this section that such Company/Corporation or subsidiary company acts as an Agent of the State Government.18. It is to be noted that Government Resolution dated 12th February, 2008 does not support the case of CIDCO and in fact goes contrary to the CIDCOs case. The said Government Resolution makes it clear that payment to be made by CIDCO as compensation/enhancement of compensation will be on account of Government. Thus, the payment so made by CIDCO will be in the capacity of agent of the State Government. This position is consistent with the provisions of section 113(3A) and section 113-A of the Maharashtra Regional And Town Planning Act, 1966. In similar way, the Government Resolution dated 12th August, 2010 also supports the contention of Respondent no.1 - original claimant. This Resolution shows that the Government has accepted the judgment of the learned Single Judge and has authorised CIDCO to represent the Government in the References under section 18 and 28-A of the Land Acquisition Act, 1894. Therefore, the view taken by the Single Judge is correct.19. The authorities cited by the Appellant CIDCO and the Respondents, except the judgment of the Income Tax Appellate Authority, have been considered by the learned Single judge and found the same not applicable to the facts of the present case. As we respectfully concur with the reasoning of the learned Single Judge, it is not necessary for us to dilate on the same. Consequently, we find that the judgment of the learned Single Judge needs no interference. | 0[ds]In the present case, admittedly, the State Government is bearing the entire expenses of acquisition of the land. CIDCO is getting only Rs.5,00,000/per year towards administrative expenses. Further, the AppellantCIDCO on its own pleaded before the Income Tax Appellate Authority that it was acting as an Agent of the State Government and nothing more. On accepting that contention, it has been held that CIDCO was not liable to pay income tax on the income derived from the development activities. Thus, it is not open to the Appellant to now contend to the contrary, or for that matter, approbate and reprobate. In any way, considering the provisions of Section 113of the Maharashtra Regional And Town Planning Act, 1966 it is not possible to hold that the AppellantCIDCO is the acquiring body. It is specifically stated in this section that such Company/Corporation or subsidiary company acts as an Agent of the State Government.18. It is to be noted that Government Resolution dated 12th February, 2008 does not support the case of CIDCO and in fact goes contrary to the CIDCOs case. The said Government Resolution makes it clear that payment to be made by CIDCO as compensation/enhancement of compensation will be on account of Government. Thus, the payment so made by CIDCO will be in the capacity of agent of the State Government. This position is consistent with the provisions of section 113(3A) and sectionof the Maharashtra Regional And Town Planning Act, 1966. In similar way, the Government Resolution dated 12th August, 2010 also supports the contention of Respondent no.1original claimant. This Resolution shows that the Government has accepted the judgment of the learned Single Judge and has authorised CIDCO to represent the Government in the References under section 18 and28A of the Land Acquisition Act, 1894.Therefore, the view taken by the Single Judge is correct.19. The authorities cited by the Appellant CIDCO and the Respondents, except the judgment of the Income Tax Appellate Authority, have been considered by the learned Single judge and found the same not applicable to the facts of the present case. As we respectfully concur with the reasoning of the learned Single Judge, it is not necessary for us to dilate on the same. Consequently, we find that the judgment of the learned Single Judge needs no interference. | 0 | 4,649 | 424 | ### 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:
country planning, an officer to be called the Town Planning Officer and Chief Executive Officer. The Chairman and the Vice-Chairman and all other members shall be appointed by the State Government.""113. (3A) Having regard to the complexity and magnitude of the work involved in developing any area as a site for the new town, the time required for setting up new machinery for undertaking and completing such work of development, and the comparative speed with which such work can be undertaken and completed in the public interest, if the work is done through the agency of a corporation including a company owned or controlled by the State as a new town, the State Government may, notwithstanding anything contained in sub-section (2), require the work of developing and disposing of land in the area of a new town to be done by any such corporation, company or subsidiary company aforesaid, as an agent of the State Government; and thereupon, such corporation or company shall, in relation to such area, be declared by the State Government, by notification in the Official Gazette, to be the New Town Development Authority for that area.)""116. Acquisition of land by Development Authority constituted under section 113(2):- A Development Authority (constituted under sub-section (2) of section 113) shall have all the powers of a Planning Authority under this Act as provided in Chapter VII for the purpose of acquisition either by agreement or under the Land Acquisition Act, 1894 (I of 1894) of-(a) any land within the area designated under this Act as the site of the new town;(b) any land adjacent to that area which is required for purposes connected with the development of the new town; and(c) any land whether adjacent to that area or not which is required for provision of services of amenities for the purposes of the new town." (emphasis supplied)"50. Acquisition of land at cost of a local authority or Company. -(1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or company.(2) In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation.Provided that no such local authority or company shall be entitled to demand a reference under section 18."17. From bare reading of Section 113(3-A) of the Maharashtra Regional And Town Planning Act, 1966 it is crystal clear that the New Town Development Authority is declared as an Agent of the State Government. This statutory status bestowed on the Appellant cannot be whittled down nor can be elevated to any other position by an administrative decision. Notably, the State Government by Government Resolution, dated 12th February, 2008 specifically stated that the entire costs of compensation for acquisition of land for CIDCO will be borne by the State Government. Not only that the State Government by Government Resolution dated 12th August, 2010 has merely authorized the CIDCO to appear on behalf of the State Government, to protect the interest of the State in the References under section 18 and/or 28-A of the Land Acquisition Act, 1894. This itself shows that the acquiring body is the State Government and it has appointed CIDCO as its Agent. Even bare reading of section 50 of the Land Acquisition Act, 1894 shows that the Authority which bears the expenses of acquisition is entitled to appear and defend in Reference Application.In the present case, admittedly, the State Government is bearing the entire expenses of acquisition of the land. CIDCO is getting only Rs.5,00,000/- per year towards administrative expenses. Further, the Appellant - CIDCO on its own pleaded before the Income Tax Appellate Authority that it was acting as an Agent of the State Government and nothing more. On accepting that contention, it has been held that CIDCO was not liable to pay income tax on the income derived from the development activities. Thus, it is not open to the Appellant to now contend to the contrary, or for that matter, approbate and reprobate. In any way, considering the provisions of Section 113 (3-A) of the Maharashtra Regional And Town Planning Act, 1966 it is not possible to hold that the Appellant - CIDCO is the acquiring body. It is specifically stated in this section that such Company/Corporation or subsidiary company acts as an Agent of the State Government.18. It is to be noted that Government Resolution dated 12th February, 2008 does not support the case of CIDCO and in fact goes contrary to the CIDCOs case. The said Government Resolution makes it clear that payment to be made by CIDCO as compensation/enhancement of compensation will be on account of Government. Thus, the payment so made by CIDCO will be in the capacity of agent of the State Government. This position is consistent with the provisions of section 113(3A) and section 113-A of the Maharashtra Regional And Town Planning Act, 1966. In similar way, the Government Resolution dated 12th August, 2010 also supports the contention of Respondent no.1 - original claimant. This Resolution shows that the Government has accepted the judgment of the learned Single Judge and has authorised CIDCO to represent the Government in the References under section 18 and 28-A of the Land Acquisition Act, 1894. Therefore, the view taken by the Single Judge is correct.19. The authorities cited by the Appellant CIDCO and the Respondents, except the judgment of the Income Tax Appellate Authority, have been considered by the learned Single judge and found the same not applicable to the facts of the present case. As we respectfully concur with the reasoning of the learned Single Judge, it is not necessary for us to dilate on the same. Consequently, we find that the judgment of the learned Single Judge needs no interference.
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In the present case, admittedly, the State Government is bearing the entire expenses of acquisition of the land. CIDCO is getting only Rs.5,00,000/per year towards administrative expenses. Further, the AppellantCIDCO on its own pleaded before the Income Tax Appellate Authority that it was acting as an Agent of the State Government and nothing more. On accepting that contention, it has been held that CIDCO was not liable to pay income tax on the income derived from the development activities. Thus, it is not open to the Appellant to now contend to the contrary, or for that matter, approbate and reprobate. In any way, considering the provisions of Section 113of the Maharashtra Regional And Town Planning Act, 1966 it is not possible to hold that the AppellantCIDCO is the acquiring body. It is specifically stated in this section that such Company/Corporation or subsidiary company acts as an Agent of the State Government.18. It is to be noted that Government Resolution dated 12th February, 2008 does not support the case of CIDCO and in fact goes contrary to the CIDCOs case. The said Government Resolution makes it clear that payment to be made by CIDCO as compensation/enhancement of compensation will be on account of Government. Thus, the payment so made by CIDCO will be in the capacity of agent of the State Government. This position is consistent with the provisions of section 113(3A) and sectionof the Maharashtra Regional And Town Planning Act, 1966. In similar way, the Government Resolution dated 12th August, 2010 also supports the contention of Respondent no.1original claimant. This Resolution shows that the Government has accepted the judgment of the learned Single Judge and has authorised CIDCO to represent the Government in the References under section 18 and28A of the Land Acquisition Act, 1894.Therefore, the view taken by the Single Judge is correct.19. The authorities cited by the Appellant CIDCO and the Respondents, except the judgment of the Income Tax Appellate Authority, have been considered by the learned Single judge and found the same not applicable to the facts of the present case. As we respectfully concur with the reasoning of the learned Single Judge, it is not necessary for us to dilate on the same. Consequently, we find that the judgment of the learned Single Judge needs no interference.
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Chaju Ram Vs. State Of Jammu & Kashmir | endorsement on the copy of the grounds showing that it had been so read to him in Urdu and that he was explained the contents. Mr. Sachthey, however, brought to our notice the original file in which the copy of the grounds which was served upon the detenu has an endorsement in Urdu that they had been read over and fully explained to him in Urdu. There is a thumb impression and against the thumb impression is noted that it is that of Chaju. The date is April 6, 1969.8. The question is whether in view of this endorsement we must hold that Chaju was properly explained the grounds of detention in Urdu which he understands. In our judgment, we cannot accept these documents at their face value. To begin with, the three endorsements on the copy, that is to say, (a) that the document was read over to him in Urdu, (b) the thumb impression and (c) the note that it is the thumb impression of Chaju, are in two different inks if not three. This raised a suspicion, that these might have been written later around the thumb impression taken from Chaju as was done when the order of detention was served on him. It may be recalled that at that time also there was an endorsement in English that it had been read over to him, but nothing had been written around the thumb impression of Chaju whether in Urdu or otherwise to show that the thumb impression was that of Chaju. We looked carefully at the affidavit filed in this Court which is a cyclostyled document. We find in para 6 a correction in a very significant place. This correction has been made by typing certain words in the place between two lines with an oblique showing that it is an omission. The words beneath those added words have been erased although some of them in part still appear. Now it is significant that the words which have been added are as follows:"understood the same he";and the para now reads as follows:"Referring to para 7 of the petition, I say that the grounds were duly served upon the detenu and in token of having understood the same he affixed his thumb impression thereon. (underlining by us).The underlined words are the words which have been added in the place between the two lines. It appears that what has been erased must be some other words appropriate to what preceded and what followed. In our opinion the paragraph must have read:"Referring to para 7 of the petition I say that the grounds were duly served upon the detenu and in token of having received the same he affixed his thumb impression thereon.”The underlined words were erased and others substituted. There would be no occasion to erase one set of writing and write another if the words were there.9. Of course Mr. Sachthey ingeniously suggests that this may be a case of erroneous typing necessitating the correction; but this correction comes at a significant spot after the detenu has sworn an affidavit that he was not explained the grounds of the detention in the language which he understood, and further the original document which is produced does not seem to bear authenticity because of the changes of ink. In these circumstances and regard being had to the fact that on the previous occasion in the affidavit there was no mention of having read over the grounds to him in the language he understood, we are constrained to hold that we should not go by the affidavit of the Under-Secretary, but in preference accept the affidavit of the detenu. The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.10. Even as to the grounds, we have something: to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of RSpura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chajn must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu. | 1[ds]In our judgment, we cannot accept these documents at their face value. To begin with, the three endorsements on the copy, that is to say, (a) that the document was read over to him in Urdu, (b) the thumb impression and (c) the note that it is the thumb impression of Chaju, are in two different inks if not three. This raised a suspicion, that these might have been written later around the thumb impression taken from Chaju as was done when the order of detention was served on him. It may be recalled that at that time also there was an endorsement in English that it had been read over to him, but nothing had been written around the thumb impression of Chaju whether in Urdu or otherwise to show that the thumb impression was that of Chaju. We looked carefully at the affidavit filed in this Court which is a cyclostyled document. We find in para 6 a correction in a very significant place. This correction has been made by typing certain words in the place between two lines with an oblique showing that it is anare therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.10. Even as to the grounds, we have something: to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of RSpura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chajn must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu. | 1 | 2,267 | 495 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
endorsement on the copy of the grounds showing that it had been so read to him in Urdu and that he was explained the contents. Mr. Sachthey, however, brought to our notice the original file in which the copy of the grounds which was served upon the detenu has an endorsement in Urdu that they had been read over and fully explained to him in Urdu. There is a thumb impression and against the thumb impression is noted that it is that of Chaju. The date is April 6, 1969.8. The question is whether in view of this endorsement we must hold that Chaju was properly explained the grounds of detention in Urdu which he understands. In our judgment, we cannot accept these documents at their face value. To begin with, the three endorsements on the copy, that is to say, (a) that the document was read over to him in Urdu, (b) the thumb impression and (c) the note that it is the thumb impression of Chaju, are in two different inks if not three. This raised a suspicion, that these might have been written later around the thumb impression taken from Chaju as was done when the order of detention was served on him. It may be recalled that at that time also there was an endorsement in English that it had been read over to him, but nothing had been written around the thumb impression of Chaju whether in Urdu or otherwise to show that the thumb impression was that of Chaju. We looked carefully at the affidavit filed in this Court which is a cyclostyled document. We find in para 6 a correction in a very significant place. This correction has been made by typing certain words in the place between two lines with an oblique showing that it is an omission. The words beneath those added words have been erased although some of them in part still appear. Now it is significant that the words which have been added are as follows:"understood the same he";and the para now reads as follows:"Referring to para 7 of the petition, I say that the grounds were duly served upon the detenu and in token of having understood the same he affixed his thumb impression thereon. (underlining by us).The underlined words are the words which have been added in the place between the two lines. It appears that what has been erased must be some other words appropriate to what preceded and what followed. In our opinion the paragraph must have read:"Referring to para 7 of the petition I say that the grounds were duly served upon the detenu and in token of having received the same he affixed his thumb impression thereon.”The underlined words were erased and others substituted. There would be no occasion to erase one set of writing and write another if the words were there.9. Of course Mr. Sachthey ingeniously suggests that this may be a case of erroneous typing necessitating the correction; but this correction comes at a significant spot after the detenu has sworn an affidavit that he was not explained the grounds of the detention in the language which he understood, and further the original document which is produced does not seem to bear authenticity because of the changes of ink. In these circumstances and regard being had to the fact that on the previous occasion in the affidavit there was no mention of having read over the grounds to him in the language he understood, we are constrained to hold that we should not go by the affidavit of the Under-Secretary, but in preference accept the affidavit of the detenu. The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.10. Even as to the grounds, we have something: to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of RSpura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chajn must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu.
### Response:
1
### Explanation:
In our judgment, we cannot accept these documents at their face value. To begin with, the three endorsements on the copy, that is to say, (a) that the document was read over to him in Urdu, (b) the thumb impression and (c) the note that it is the thumb impression of Chaju, are in two different inks if not three. This raised a suspicion, that these might have been written later around the thumb impression taken from Chaju as was done when the order of detention was served on him. It may be recalled that at that time also there was an endorsement in English that it had been read over to him, but nothing had been written around the thumb impression of Chaju whether in Urdu or otherwise to show that the thumb impression was that of Chaju. We looked carefully at the affidavit filed in this Court which is a cyclostyled document. We find in para 6 a correction in a very significant place. This correction has been made by typing certain words in the place between two lines with an oblique showing that it is anare therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.10. Even as to the grounds, we have something: to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of RSpura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chajn must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu.
|
National Organic Chemicals (Rcd) Limited & Another Vs. Pandit Ladaku Patil | may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise of choice. In this very judgment, the court returned the finding The recording apparently discloses that it was not left to the workman to make any choice regarding the language in which the inquiry was to be conducted On facts, the court came to the conclusion that such choice was not given to the workman observing that there is nothing on record to disclose that the workman knew English language. In this case, the court no way felt that the principle of substantial compliance was applicable while in the case of Advani Oerlicon, the learned Judge really did not go into the legal controversy in greater detail but noticed It would not be necessary for me to answer the aforesaid questions in the present case as the workman was represented by a defence representative who was well versed in the English language. Admittedly, he had posed questions during the cross-examination of the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case. 19. Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice of English. The enquiry officer had recorded the following ruling during the pendency of the departmental enquiry: The CSW has also nowhere contended that at any time in the past the Company had made any correspondence in a language other than English. In the present case the CSW knows English. However in my opinion by way of a special case not creating any precedent the Company should provide Marathi translation of the English Charge-sheet on record to the CSW. I have also decided to conduct the enquiry in Marathi as desired by the CSW. However, so far as recordings of the proceedings are concerned, being my notes and also for the sake of convenience, brevity the same will be recorded in English by directly dictating to the Computer operator and the recorded proceedings will be explained to the CSW in Marathi simultaneously and before obtaining his signature. In my opinion no prejudice will be caused to the CSW. The CSW can engage a co-workman or a office bearer of the Union to assist him in the enquiry. In my opinion this will meet the ends of natural justice. 20. In the proceedings dated 21st August, 2006, it was also noticed that all the work being done by the employee in the Company for these long years was in no other language except English. Despite noticing all this, the enquiry officer has directed supply of translated copy of chargesheet and directed conducting of enquiry proceedings in Marathi though their records may be maintained in English. In the present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case. | 1[ds]Primarily, the Court is concerned with the later part of this Standing Order. It imposes an obligation upon the Enquiry Officer and the employer that all proceedings shall be conducted in English, Hindi or Marathi, according to the choice of the workman concerned and the person defending him. In other words, it gives an option to the workmen to opt for recording of proceedings in any one of the languages stated therein. The fact that there is an element of option indicates that there is intent of flexibility which is permissible within the ambit and scope of the Standing Order. Of course, preferential choice has been vested with the employee and he could give choice in any form i.e. in writing, by his conduct or by both. This Standing Order is primarily intended to control the procedure of departmental enquiry and is not so mandatory in its application that its violation would always result in vitiation of the enquiry even if there was no element of prejudice claimed by the employee. Again prejudice is a matter which has to be examined with objectivity, however, is subjective in satisfaction. The learned Single Judge himself noticed that another bench of this Court in the case of Advani Oerlikon Ltd. Vs Shashikant M Sable and others (Writ Petition No.972 of 1997) decided on 30th November 2007 had taken the view, while referring to the same Standing Order 25(4) that where witnesses have spoken in Marathi, it is translated and recorded in English and the employee knows English language, the requirement of the clause would be fully met and it is not absolutely mandatory for the Enquiry Officer to write the proceedings in Marathi. Merely because an Appeal was preferred against this judgment of the learned Single Judge, would not take away the right of the Company to rely upon that view on which hardly any analysis has been offered by the learned Single Judge in the impugnedalready noticed, in some cases,of procedural provisions which are not of statutory or mandatory character would not invite necessity for presuming prejudice as prejudice per se may not be inferred from breach of every instruction, rule or standing order. Departmental enquiry is to be tested on theof justness and fairness and the principles of natural justice. Where there are regulatory or procedural provisions or orders and they have substantially complied with without causing any prejudice to the delinquent, it may not be necessary for the court to set aside the enquiry itself. Prejudice is capable of being inferred only in cases of violation of mandatory statutorythe certified standing orders have statutory force and are strictly to be construed and implemented in accordance with the principles of natural justice as they would attract application of such basic fundamentals.On the analysis of the above judgments, it is clear that the statutory rules or even the standing orders have to be read and construed to achieve the ends of natural justice and not to give them such strict interpretation so as to defeat the very purpose of principle of fairness. As already noticed, the intent behind the standing order 25(4) is to ensure that the workman is able to exercise his choice of language at the initial stage itself but where the workman himself makes a choice by his conduct or otherwise and participates in the enquiry without any demur thereafter on the completion of the enquiry, it will be quite inconsistent for the workman to raise an objection to the validity of the enquiry on the ground of language. To put it more simply to give choice under Standing Order 25(4) to the workman is mandatory and the workman having accepted such a choice if participated in the conduct of the enquiry, the principle of substantial compliance would be attracted. Where no choice is given to the workman, the matter would certainly fall in a different category of cases.already noticed, in Nandini Mehtas case (supra), the Court had specifically noticed that there may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise ofhe had posed questions during theof the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case.Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice ofthe present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case. | 1 | 7,911 | 1,373 | ### 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:
may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise of choice. In this very judgment, the court returned the finding The recording apparently discloses that it was not left to the workman to make any choice regarding the language in which the inquiry was to be conducted On facts, the court came to the conclusion that such choice was not given to the workman observing that there is nothing on record to disclose that the workman knew English language. In this case, the court no way felt that the principle of substantial compliance was applicable while in the case of Advani Oerlicon, the learned Judge really did not go into the legal controversy in greater detail but noticed It would not be necessary for me to answer the aforesaid questions in the present case as the workman was represented by a defence representative who was well versed in the English language. Admittedly, he had posed questions during the cross-examination of the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case. 19. Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice of English. The enquiry officer had recorded the following ruling during the pendency of the departmental enquiry: The CSW has also nowhere contended that at any time in the past the Company had made any correspondence in a language other than English. In the present case the CSW knows English. However in my opinion by way of a special case not creating any precedent the Company should provide Marathi translation of the English Charge-sheet on record to the CSW. I have also decided to conduct the enquiry in Marathi as desired by the CSW. However, so far as recordings of the proceedings are concerned, being my notes and also for the sake of convenience, brevity the same will be recorded in English by directly dictating to the Computer operator and the recorded proceedings will be explained to the CSW in Marathi simultaneously and before obtaining his signature. In my opinion no prejudice will be caused to the CSW. The CSW can engage a co-workman or a office bearer of the Union to assist him in the enquiry. In my opinion this will meet the ends of natural justice. 20. In the proceedings dated 21st August, 2006, it was also noticed that all the work being done by the employee in the Company for these long years was in no other language except English. Despite noticing all this, the enquiry officer has directed supply of translated copy of chargesheet and directed conducting of enquiry proceedings in Marathi though their records may be maintained in English. In the present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case.
### Response:
1
### Explanation:
be fully met and it is not absolutely mandatory for the Enquiry Officer to write the proceedings in Marathi. Merely because an Appeal was preferred against this judgment of the learned Single Judge, would not take away the right of the Company to rely upon that view on which hardly any analysis has been offered by the learned Single Judge in the impugnedalready noticed, in some cases,of procedural provisions which are not of statutory or mandatory character would not invite necessity for presuming prejudice as prejudice per se may not be inferred from breach of every instruction, rule or standing order. Departmental enquiry is to be tested on theof justness and fairness and the principles of natural justice. Where there are regulatory or procedural provisions or orders and they have substantially complied with without causing any prejudice to the delinquent, it may not be necessary for the court to set aside the enquiry itself. Prejudice is capable of being inferred only in cases of violation of mandatory statutorythe certified standing orders have statutory force and are strictly to be construed and implemented in accordance with the principles of natural justice as they would attract application of such basic fundamentals.On the analysis of the above judgments, it is clear that the statutory rules or even the standing orders have to be read and construed to achieve the ends of natural justice and not to give them such strict interpretation so as to defeat the very purpose of principle of fairness. As already noticed, the intent behind the standing order 25(4) is to ensure that the workman is able to exercise his choice of language at the initial stage itself but where the workman himself makes a choice by his conduct or otherwise and participates in the enquiry without any demur thereafter on the completion of the enquiry, it will be quite inconsistent for the workman to raise an objection to the validity of the enquiry on the ground of language. To put it more simply to give choice under Standing Order 25(4) to the workman is mandatory and the workman having accepted such a choice if participated in the conduct of the enquiry, the principle of substantial compliance would be attracted. Where no choice is given to the workman, the matter would certainly fall in a different category of cases.already noticed, in Nandini Mehtas case (supra), the Court had specifically noticed that there may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise ofhe had posed questions during theof the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case.Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice ofthe present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case.
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Haji Abdul Shakoor and Company Vs. Union of India and Others | Leave is granted. 2. This appeal by special leave is directed against the order of the High Court of Judicature at Allahabad passed on March 13, 2001 dismissing Writ Petition No. 1041 of 2001, filed by the appellant challenging the validity of the order passed by the 3rd respondent on December 21, 2000. 3. The appellant was registered as a Class B Contractor for supplying meat group items to headquarter Central Command, respondent No. 2. The contractor carrying capacity of the appellant was then limited to Rs. 1.80 crores. On September 4, 2000 its contract carrying capacity was enhanced to Rs. 7.20 crores by the Central Command, Lucknow by letter dated September 4, 2000. Thus, it became Class A Contractor. On the request of the appellant, to enable it to compete in securing contract in Western Command, respondent No. 3, its contract carrying capacity limited to Rs. 6.50 crores was transferred by respondent No. 2 to respondent No. 3, which was acknowledged by letter dated December 14, 2000. The second respondent by its letter dated December 21, 2000 informed the appellant that its contract carrying capacity for Rs. 6.50 crores was accepted by the third respondent. However, by the impugned order of the third respondent the contract carrying capacity of the appellant was reduced to Rs.3.50 crores and the same was intimated to it on December 21, 2000. The validity of that letter was assailed by the appellant before the High Court at Allahabad in Writ Petition No. 1041 of 2001. On March 13, 2001, the Division Bench of the High Court dismissed the writ petition taking the view that the matter related to non-statutory contract. It is the correctness of that order of the High Court that is under challenge in this appeal. 4. Mrs. Shobha Dixit, the learned senior counsel for the appellant contends that by arbitrarily reducing the contract carrying capacity of the appellant, the third respondent rendered it ineligible to compete for securing contracts as a Class A Contractor and in fact the appellant is eliminated from the competition. The impugned order of the third respondent was passed without any notice to the appellant. The High Court has not correctly appreciated the point raised before it and dismissed the Writ Petition therefore, the order of the High Court deserves to be set aside. 5. Mr. G. Venkatesh, the learned counsel appearing for the respondents on the other hand contends that having regard to the policy contained in letter dated December 21, 2000, the contract carrying capacity of the appellant was correctly determined and he was accordingly intimated. The High Court declined to interfere with the order of the third respondent, therefore, no. interference is called for by this Court. 6. The short point that arises for our consideration is whether the order of the High Court under challenge, declining to interfere with the impugned order issued by the third respondent on December 21, 2000 is sustainable in law. 7. It is not in dispute that the appellant is a Class A Contractor with the second respondent who transferred the contract carrying capacity of the appellant limited to 6.50 crores to the Headquarter, Western Command respondent No. 3. This was accepted by the third respondent as evidenced by letter dated December 14, 2000. This fact was re-affirmed by the letter of the second respondent issued on December 21, 2000. The net result of the exercise is that the appellant became eligible to compete as a Class A Contractor up to the limit of Rs. 6.50 crores. This is a civil right of the appellant which cannot be taken away or even curtailed except in accordance with law. Admittedly before passing the impugned order no. opportunity of being heard was afforded to the appellant by the third respondent as such the impugned order suffers from the view of violation of the principles of natural justice and such an order cannot but be an arbitrary order. This is evident from the impugned order which reads as follows : "REGISTERED BY POST/UPC Tele No. 2761 Mukkhytalaya Paschim Kaman Headquarters Western Command Chandimandir-134 107. 21st December, 2000 M/s. Haji Abdul Shakoor and Co. 485/2 Outside Sainyer Gate, Jhansi (U. P.) TRANSFER OF CONTRACT CARRYING CAPACITY Dear Sir, 1. Reference THIS HQ letter No. 58817/HAS/8/ST-5 dated 14th December, 2000. 2. Contract carrying capacity accepted by this HQ has been amended as under : For : 6.50 crores Read : 3.50 crores 3. You are requested to obtain any further clarification on above change from your parent command. Yours faithfully, Sd/- (V. K. Handu) Col Col ST For Offg MGASC" * 8. From a persual of this letter it is apparent that before reducing the capacity no. notice was issued to the appellant and he was not given an opportunity to represent its case in regard to reduction of contract carrying capacity which indeed converts the status of the appellant as Class B Contractor. Whether the policy which is called in aid to support the impugned order, is valid in law and if so, it applies to the appellant, are factors which need to be determined after giving an opportunity of being heard to the appellant. Further, it is also evident that the impugned order is a non-speaking order. Unfortunately, the High Court missed these germane aspects, therefore, the order of the High Court under challenge, cannot be sustained. | 1[ds]This is a civil right of the appellant which cannot be taken away or even curtailed except in accordance with law. Admittedly before passing the impugned order no. opportunity of being heard was afforded to the appellant by the third respondent as such the impugned order suffers from the view of violation of the principles of natural justice and such an order cannot but be an arbitrary order.From a persual of this letter it is apparent that before reducing the capacity no. notice was issued to the appellant and he was not given an opportunity to represent its case in regard to reduction of contract carrying capacity which indeed converts the status of the appellant as Class B Contractor. Whether the policy which is called in aid to support the impugned order, is valid in law and if so, it applies to the appellant, are factors which need to be determined after giving an opportunity of being heard to the appellant. Further, it is also evident that the impugned order is aorder. Unfortunately, the High Court missed these germane aspects, therefore, the order of the High Court under challenge, cannot be sustained. | 1 | 1,008 | 214 | ### 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:
Leave is granted. 2. This appeal by special leave is directed against the order of the High Court of Judicature at Allahabad passed on March 13, 2001 dismissing Writ Petition No. 1041 of 2001, filed by the appellant challenging the validity of the order passed by the 3rd respondent on December 21, 2000. 3. The appellant was registered as a Class B Contractor for supplying meat group items to headquarter Central Command, respondent No. 2. The contractor carrying capacity of the appellant was then limited to Rs. 1.80 crores. On September 4, 2000 its contract carrying capacity was enhanced to Rs. 7.20 crores by the Central Command, Lucknow by letter dated September 4, 2000. Thus, it became Class A Contractor. On the request of the appellant, to enable it to compete in securing contract in Western Command, respondent No. 3, its contract carrying capacity limited to Rs. 6.50 crores was transferred by respondent No. 2 to respondent No. 3, which was acknowledged by letter dated December 14, 2000. The second respondent by its letter dated December 21, 2000 informed the appellant that its contract carrying capacity for Rs. 6.50 crores was accepted by the third respondent. However, by the impugned order of the third respondent the contract carrying capacity of the appellant was reduced to Rs.3.50 crores and the same was intimated to it on December 21, 2000. The validity of that letter was assailed by the appellant before the High Court at Allahabad in Writ Petition No. 1041 of 2001. On March 13, 2001, the Division Bench of the High Court dismissed the writ petition taking the view that the matter related to non-statutory contract. It is the correctness of that order of the High Court that is under challenge in this appeal. 4. Mrs. Shobha Dixit, the learned senior counsel for the appellant contends that by arbitrarily reducing the contract carrying capacity of the appellant, the third respondent rendered it ineligible to compete for securing contracts as a Class A Contractor and in fact the appellant is eliminated from the competition. The impugned order of the third respondent was passed without any notice to the appellant. The High Court has not correctly appreciated the point raised before it and dismissed the Writ Petition therefore, the order of the High Court deserves to be set aside. 5. Mr. G. Venkatesh, the learned counsel appearing for the respondents on the other hand contends that having regard to the policy contained in letter dated December 21, 2000, the contract carrying capacity of the appellant was correctly determined and he was accordingly intimated. The High Court declined to interfere with the order of the third respondent, therefore, no. interference is called for by this Court. 6. The short point that arises for our consideration is whether the order of the High Court under challenge, declining to interfere with the impugned order issued by the third respondent on December 21, 2000 is sustainable in law. 7. It is not in dispute that the appellant is a Class A Contractor with the second respondent who transferred the contract carrying capacity of the appellant limited to 6.50 crores to the Headquarter, Western Command respondent No. 3. This was accepted by the third respondent as evidenced by letter dated December 14, 2000. This fact was re-affirmed by the letter of the second respondent issued on December 21, 2000. The net result of the exercise is that the appellant became eligible to compete as a Class A Contractor up to the limit of Rs. 6.50 crores. This is a civil right of the appellant which cannot be taken away or even curtailed except in accordance with law. Admittedly before passing the impugned order no. opportunity of being heard was afforded to the appellant by the third respondent as such the impugned order suffers from the view of violation of the principles of natural justice and such an order cannot but be an arbitrary order. This is evident from the impugned order which reads as follows : "REGISTERED BY POST/UPC Tele No. 2761 Mukkhytalaya Paschim Kaman Headquarters Western Command Chandimandir-134 107. 21st December, 2000 M/s. Haji Abdul Shakoor and Co. 485/2 Outside Sainyer Gate, Jhansi (U. P.) TRANSFER OF CONTRACT CARRYING CAPACITY Dear Sir, 1. Reference THIS HQ letter No. 58817/HAS/8/ST-5 dated 14th December, 2000. 2. Contract carrying capacity accepted by this HQ has been amended as under : For : 6.50 crores Read : 3.50 crores 3. You are requested to obtain any further clarification on above change from your parent command. Yours faithfully, Sd/- (V. K. Handu) Col Col ST For Offg MGASC" * 8. From a persual of this letter it is apparent that before reducing the capacity no. notice was issued to the appellant and he was not given an opportunity to represent its case in regard to reduction of contract carrying capacity which indeed converts the status of the appellant as Class B Contractor. Whether the policy which is called in aid to support the impugned order, is valid in law and if so, it applies to the appellant, are factors which need to be determined after giving an opportunity of being heard to the appellant. Further, it is also evident that the impugned order is a non-speaking order. Unfortunately, the High Court missed these germane aspects, therefore, the order of the High Court under challenge, cannot be sustained.
### Response:
1
### Explanation:
This is a civil right of the appellant which cannot be taken away or even curtailed except in accordance with law. Admittedly before passing the impugned order no. opportunity of being heard was afforded to the appellant by the third respondent as such the impugned order suffers from the view of violation of the principles of natural justice and such an order cannot but be an arbitrary order.From a persual of this letter it is apparent that before reducing the capacity no. notice was issued to the appellant and he was not given an opportunity to represent its case in regard to reduction of contract carrying capacity which indeed converts the status of the appellant as Class B Contractor. Whether the policy which is called in aid to support the impugned order, is valid in law and if so, it applies to the appellant, are factors which need to be determined after giving an opportunity of being heard to the appellant. Further, it is also evident that the impugned order is aorder. Unfortunately, the High Court missed these germane aspects, therefore, the order of the High Court under challenge, cannot be sustained.
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Munshi Lal Beni Ram Glass Works Vs. S. R. Singh, Assistant Labour Commissioner Andothers | as it existed prior to April 16, 1957 was intended to be kept alive. Now looking, at the position as it stood on April 16, 1957, it would be seen that s.16 was designed to save the pending proceedings from the operation of U.P. Act No. 1 of 1957 itself. If this Act was held to be inapplicable, then s. 6-A as amended thereby would be excluded and that section as it stood prior to the amendment by U.P. Act No., 1 of 1957 would automatically be attracted. The question arises: where was then the occasion to provide specifically for applying to the pending proceedings s, 6-A as it stood before U.P. Act No. 1 of 1957 ? It may, of course, be contended that it was so done by way of abundant caution. To us, however, it seems that to specifically incorporate s.6-A in s.16 in this situation is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings contemplated by s.16. The enactment under consideration is not an example of ideal draftsmanship and the provisions under consideration may admit of two constructions. Assuming the two constructions to be possible we are not satisfied that the construction placed on this provision by the two Benches of the Allahabad High Court is clearly erroneous justifying reversal of the view taken therein and thereby unsettling the legal position. On the other hand to uphold the view of the learned Single Judge would also render the awards like the present unenforceable, which intention is difficult to impute to the Legislature. And then this point is not likely to arise very frequently in future, the matter being confined only to the cases which were pending when U.P. Act No. 1 of 1957 was enforced. The enactment is also confined in its operation to the State of U.P. alone.The appellants counsel next contended that the proceeding in question pending with the adjudicator could not be considered to be pending with the State Government and the State Government could not give effect to the decision of the adjudicator under s.16. It was argued that it was only the Authority before which the proceeding was actually pending immediately after the commencement of U.P. Act No. 1 of 1957 which was empowered to dispose it of and the proceeding in the present case being pending before an adjudicator, the State Government could not claim any power under this section. It was added that the State Government could also not be treated as the authority constituted under the said Act. In our, opinion the proceeding in question was clearly -pending before the adjudicator as contemplated by s.16. The adjudicator, therefore, could plainly proceed to. adjudicate upon the dispute. On his a judicious the provisions of s.6- A would be attracted and there under the State Government could enforce it. This submission of the appellant is, therefore, repelled. On the view that we have taken it is not necessary to decide whether the State Government is an authority constituted under the Act as envisaged by s.16 and also whether the proceeding in question could be considered to be pending before the State Government.7. The appellants counsel also submitted that without resort to s.17 of U.P. Act No. 1 of 1957 the award could not be enforced. This argument too need not detain us as it does not arise on the view we have taken. We may, however, point out that s. 17 only provides for delegated legislation in certain circumstances and resort to s. 17 is not essential, or a condition precedent for enforcing the awards, as suggested on behalf of the appellant.The appellants learned Advocate as a last resort submitted that the decision of the adjudicator is not an award as defined in s.2(c) of the U.P. Industrial Disputes Act as amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of 1957 is excluded from its application to pending proceeding under s.16 then the word award has to be liberally construed and so construed it would be covered by s. 6-A. The power conferred by ss. 16 and 6A has to be construed as real and not illusory and it has to be interpreted so as to achieve the purpose for which it was conferred.8. We must not be understood to accord our approval to the view of the learned Single Judge that s.6 of the Principal Act having not been repealed simpliciter, but having been replaced by a new section 6 by U.P. Act 1 of 1957, the principle underlying s.6(e) of the General Clauses Act cannot be attracted. In our opinion, this approach is not quite correct. Section 6 would seem to us to apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the new enactment. As observed by this Court in the State of Punjab v. Mohar Singh([1955] 1 S.C.R. 893.) whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out whenever there is a repeal-, of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the proposition of the section. | 0[ds]Now looking, at the position as it stood on April 16, 1957, it would be seen that s.16 was designed to save the pending proceedings from the operation of U.P. Act No. 1 of 1957 itself. If this Act was held to be inapplicable, then s. 6-A as amended thereby would be excluded and that section as it stood prior to the amendment by U.P. Act No., 1 of 1957 would automatically be attracted. The question arises: where was then the occasion to provide specifically for applying to the pending proceedings s, 6-A as it stood before U.P. Act No. 1 of 1957 ? It may, of course, be contended that it was so done by way of abundant caution. To us, however, it seems that to specifically incorporate s.6-A in s.16 in this situation is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings contemplated by s.16. The enactment under consideration is not an example of ideal draftsmanship and the provisions under consideration may admit of two constructions. Assuming the two constructions to be possible we are not satisfied that the construction placed on this provision by the two Benches of the Allahabad High Court is clearly erroneous justifying reversal of the view taken therein and thereby unsettling the legal position. On the other hand to uphold the view of the learned Single Judge would also render the awards like the present unenforceable, which intention is difficult to impute to the Legislature. And then this point is not likely to arise very frequently in future, the matter being confined only to the cases which were pending when U.P. Act No. 1 of 1957 was enforced. The enactment is also confined in its operation to the State of U.P.our, opinion the proceeding in question was clearly -pending before the adjudicator as contemplated by s.16. The adjudicator, therefore, could plainly proceed to. adjudicate upon the dispute. On his a judicious the provisions of s.6- A would be attracted and there under the State Government could enforce it. This submission of the appellant is, therefore, repelled. On the view that we have taken it is not necessary to decide whether the State Government is an authority constituted under the Act as envisaged by s.16 and also whether the proceeding in question could be considered to be pending before the Stateargument too need not detain us as it does not arise on the view we have taken. We may, however, point out that s. 17 only provides for delegated legislation in certain circumstances and resort to s. 17 is not essential, or a condition precedent for enforcing the awards, as suggested on behalf of the appellant.The appellants learned Advocate as a last resort submitted that the decision of the adjudicator is not an award as defined in s.2(c) of the U.P. Industrial Disputes Act as amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of 1957 is excluded from its application to pending proceeding under s.16 then the word award has to be liberally construed and so construed it would be covered by s. 6-A. The power conferred by ss. 16 and 6A has to be construed as real and not illusory and it has to be interpreted so as to achieve the purpose for which it wasmust not be understood to accord our approval to the view of the learned Single Judge that s.6 of the Principal Act having not been repealed simpliciter, but having been replaced by a new section 6 by U.P. Act 1 of 1957, the principle underlying s.6(e) of the General Clauses Act cannot be attracted. In our opinion, this approach is not quite correct. Section 6 would seem to us to apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the newobserved by this Court in the State of Punjab v. Mohar Singh([1955] 1 S.C.R. 893.) whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out whenever there is a repeal-, of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the proposition of the section. | 0 | 2,816 | 922 | ### 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:
as it existed prior to April 16, 1957 was intended to be kept alive. Now looking, at the position as it stood on April 16, 1957, it would be seen that s.16 was designed to save the pending proceedings from the operation of U.P. Act No. 1 of 1957 itself. If this Act was held to be inapplicable, then s. 6-A as amended thereby would be excluded and that section as it stood prior to the amendment by U.P. Act No., 1 of 1957 would automatically be attracted. The question arises: where was then the occasion to provide specifically for applying to the pending proceedings s, 6-A as it stood before U.P. Act No. 1 of 1957 ? It may, of course, be contended that it was so done by way of abundant caution. To us, however, it seems that to specifically incorporate s.6-A in s.16 in this situation is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings contemplated by s.16. The enactment under consideration is not an example of ideal draftsmanship and the provisions under consideration may admit of two constructions. Assuming the two constructions to be possible we are not satisfied that the construction placed on this provision by the two Benches of the Allahabad High Court is clearly erroneous justifying reversal of the view taken therein and thereby unsettling the legal position. On the other hand to uphold the view of the learned Single Judge would also render the awards like the present unenforceable, which intention is difficult to impute to the Legislature. And then this point is not likely to arise very frequently in future, the matter being confined only to the cases which were pending when U.P. Act No. 1 of 1957 was enforced. The enactment is also confined in its operation to the State of U.P. alone.The appellants counsel next contended that the proceeding in question pending with the adjudicator could not be considered to be pending with the State Government and the State Government could not give effect to the decision of the adjudicator under s.16. It was argued that it was only the Authority before which the proceeding was actually pending immediately after the commencement of U.P. Act No. 1 of 1957 which was empowered to dispose it of and the proceeding in the present case being pending before an adjudicator, the State Government could not claim any power under this section. It was added that the State Government could also not be treated as the authority constituted under the said Act. In our, opinion the proceeding in question was clearly -pending before the adjudicator as contemplated by s.16. The adjudicator, therefore, could plainly proceed to. adjudicate upon the dispute. On his a judicious the provisions of s.6- A would be attracted and there under the State Government could enforce it. This submission of the appellant is, therefore, repelled. On the view that we have taken it is not necessary to decide whether the State Government is an authority constituted under the Act as envisaged by s.16 and also whether the proceeding in question could be considered to be pending before the State Government.7. The appellants counsel also submitted that without resort to s.17 of U.P. Act No. 1 of 1957 the award could not be enforced. This argument too need not detain us as it does not arise on the view we have taken. We may, however, point out that s. 17 only provides for delegated legislation in certain circumstances and resort to s. 17 is not essential, or a condition precedent for enforcing the awards, as suggested on behalf of the appellant.The appellants learned Advocate as a last resort submitted that the decision of the adjudicator is not an award as defined in s.2(c) of the U.P. Industrial Disputes Act as amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of 1957 is excluded from its application to pending proceeding under s.16 then the word award has to be liberally construed and so construed it would be covered by s. 6-A. The power conferred by ss. 16 and 6A has to be construed as real and not illusory and it has to be interpreted so as to achieve the purpose for which it was conferred.8. We must not be understood to accord our approval to the view of the learned Single Judge that s.6 of the Principal Act having not been repealed simpliciter, but having been replaced by a new section 6 by U.P. Act 1 of 1957, the principle underlying s.6(e) of the General Clauses Act cannot be attracted. In our opinion, this approach is not quite correct. Section 6 would seem to us to apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the new enactment. As observed by this Court in the State of Punjab v. Mohar Singh([1955] 1 S.C.R. 893.) whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out whenever there is a repeal-, of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the proposition of the section.
### Response:
0
### Explanation:
Now looking, at the position as it stood on April 16, 1957, it would be seen that s.16 was designed to save the pending proceedings from the operation of U.P. Act No. 1 of 1957 itself. If this Act was held to be inapplicable, then s. 6-A as amended thereby would be excluded and that section as it stood prior to the amendment by U.P. Act No., 1 of 1957 would automatically be attracted. The question arises: where was then the occasion to provide specifically for applying to the pending proceedings s, 6-A as it stood before U.P. Act No. 1 of 1957 ? It may, of course, be contended that it was so done by way of abundant caution. To us, however, it seems that to specifically incorporate s.6-A in s.16 in this situation is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings contemplated by s.16. The enactment under consideration is not an example of ideal draftsmanship and the provisions under consideration may admit of two constructions. Assuming the two constructions to be possible we are not satisfied that the construction placed on this provision by the two Benches of the Allahabad High Court is clearly erroneous justifying reversal of the view taken therein and thereby unsettling the legal position. On the other hand to uphold the view of the learned Single Judge would also render the awards like the present unenforceable, which intention is difficult to impute to the Legislature. And then this point is not likely to arise very frequently in future, the matter being confined only to the cases which were pending when U.P. Act No. 1 of 1957 was enforced. The enactment is also confined in its operation to the State of U.P.our, opinion the proceeding in question was clearly -pending before the adjudicator as contemplated by s.16. The adjudicator, therefore, could plainly proceed to. adjudicate upon the dispute. On his a judicious the provisions of s.6- A would be attracted and there under the State Government could enforce it. This submission of the appellant is, therefore, repelled. On the view that we have taken it is not necessary to decide whether the State Government is an authority constituted under the Act as envisaged by s.16 and also whether the proceeding in question could be considered to be pending before the Stateargument too need not detain us as it does not arise on the view we have taken. We may, however, point out that s. 17 only provides for delegated legislation in certain circumstances and resort to s. 17 is not essential, or a condition precedent for enforcing the awards, as suggested on behalf of the appellant.The appellants learned Advocate as a last resort submitted that the decision of the adjudicator is not an award as defined in s.2(c) of the U.P. Industrial Disputes Act as amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of 1957 is excluded from its application to pending proceeding under s.16 then the word award has to be liberally construed and so construed it would be covered by s. 6-A. The power conferred by ss. 16 and 6A has to be construed as real and not illusory and it has to be interpreted so as to achieve the purpose for which it wasmust not be understood to accord our approval to the view of the learned Single Judge that s.6 of the Principal Act having not been repealed simpliciter, but having been replaced by a new section 6 by U.P. Act 1 of 1957, the principle underlying s.6(e) of the General Clauses Act cannot be attracted. In our opinion, this approach is not quite correct. Section 6 would seem to us to apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the newobserved by this Court in the State of Punjab v. Mohar Singh([1955] 1 S.C.R. 893.) whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out whenever there is a repeal-, of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the proposition of the section.
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Messrs Escorts Farms (Ramgarh) Limited Vs. Commissioner of Income Tax, New Delhi | statutory provisions in pari materia with Sections 48 and 55(2) of the Act. In the present case we are confined to the express provisions of Section 55(2) relating to the manner in which the cost of acquisition of a capital asset has to be determined for the purpose of Section 48. Where the capital asset became the property of the assessee before the first day of January, 1954, the assessee has two options. It can decide whether it wishes to take the cost of the acquisition of the asset to it as the cost of acquisition for the purpose of Section 48 or the fair market value of the asset on the first day of January 1954. The word fair appears to have been used to indicate that any artificially inflated value is not to be taken into account. In the present case it is common ground that when the original assessment order was made the fair market value of the shares in question had been duly determined and accepted as correct by the Income Tax Officer. Under no principle or authority can anything more be read into the provisions of Section 55(2)(i) in the manner suggested by the Revenue based on the view expressed in the Dalmia Investment Co. case. The High Court completely overlooked the fact that for the ascertainment of the fair market value of the shares in question on 1-1-1954, any event prior or subsequent to the said date was wholly extraneous and irrelevant and could not be taken into consideration. If the contention of the Revenue were to be accepted the acquisition of bonus shares subsequent to 1-1-1954, will have to be taken into account which on the language of the statute it is not possible to do." * 10. A close analysis of the facts of the above case, and the ultimate conclusion reached by this Court, will go to show that the learned Judges laid stress on the fact that the assessee had opted to take the cost of acquisition as provided by the relevant statute, i.e., statutory cost of acquisition and thus substituting the market value as on 1-1-1954 in the place of actual cost of acquisition, and only in such a case, the subsequent issue of bonus shares cannot affect the issue. It is implicit from the above decision that the principle of averaging by spreading the cost over the old shares and the new bonus shares as enunciated by this Court in Dalmia Investment Co. case and other cases, will apply as a general rule in cases where the assessee claims to deduct the actual cost of acquisition, instead of the statutory cost of acquisition. It also stands to reason since the fair market value as per the "statutory cost of acquisition" will be a notional or fictional figure - mostly inflated - having no connection with the original or actual cost. We should bear in mind that it is after discussing the effect or impact of the issue of the bonus shares, on the value of the original shares generally and also the various possible methods for determining the cost of the bonus shares, this Court in Dalmia Investment Co. case stated that the real cost to the assessee of the bonus shares cannot be taken to be nil or at their face value and they have to be valued by spreading the cost of the old shares over the old shares and the new issue (bonus shares), taken together etc. The principle so laid down is one of the general application. We should also state that the character of the owner of the shares as an investor or as a dealer is of no consequence. 11. There is no dichotomy as to whether the shares are held by an investor or dealer in shares. In both the cases, it is surplus receipt that is brought to tax, either as "capital gains" or "profit or loss", as the case may be, and in accordance with relevant statutory provisions. The decisions reported in Madura Mills Co. Ltd. v. CIT (Mad)], D. M. Dahanukar v. CIT (Bom)], W. H. Brady & Co. Ltd. v. CIT Bom)], Alembic Chemical Works Ltd. (No. 1) v. CIT (Guj)] are in accord with the above view and they represent the correct law. The decisions (in Sutlej Cotton Mills Ltd. v. CIT (Cal)], CIT v. Steel Group Ltd. (Cal)], Protima Roy v. CIT (Cal)]) cited before us, misapplied the rule enunciated in Shekhawati General Traders Ltd. v. ITO and failed to bear in mind the proper principles to be applied in the matter and do not lay down the correct law. 12. In this case, the High Court has found that the original shares sold were admittedly purchased after 1954 and, therefore, the option of taking the fair market value as on 1-1-1954 (the statutory cost) was not available to the assessee. It appears to us that the principles laid down in Shekhawati General Traders Ltd. v. ITO, cannot be applied to a case where the assessee did not and could not exercise the option of the statutory cost of acquisition in the place of the actual cost of acquisition. The said decision is distinguishable. In view of the larger Bench decisions of this Court, it is fairly clear that where bonus shares are issued and some of the original shares are sold subsequently, their actual cost has to be reckoned only on the basis of "average value" (as held in Dalmia Investment and other cases) except in rare cases, where "actual cost" is notionally adopted or determined as it existed on the relevant statutory date, (Shekhawati General Traders Ltd. v. ITO. In the instant case, the High Court was justified in law in holding so and in further holding that the subsequent issue of the bonus shares has the effect of altering the original cost of acquisition of the shares as held by this Court in CIT v. Dalmia Investment Co. Ltd. and other cases. | 0[ds]8. The sheet-anchor of the appellants case before the High Court and still before us was, that the cost of acquisition of the original share, is its actual cost. The fact that the bonus shares were issued subsequently cannot be taken into account and it is not open to the Revenue to alter the cost of acquisition of the original shares.A close analysis of the facts of the above case, and the ultimate conclusion reached by this Court, will go to show that the learned Judges laid stress on the fact that the assessee had opted to take the cost of acquisition as provided by the relevant statute, i.e., statutory cost of acquisition and thus substituting the market value as on 1-1-1954 in the place of actual cost of acquisition, and only in such a case, the subsequent issue of bonus shares cannot affect the issue. It is implicit from the above decision that the principle of averaging by spreading the cost over the old shares and the new bonus shares as enunciated by this Court in Dalmia Investment Co. case and other cases, will apply as a general rule in cases where the assessee claims to deduct the actual cost of acquisition, instead of the statutory cost of acquisition. It also stands to reason since the fair market value as per the "statutory cost of acquisition" will be a notional or fictional figure - mostly inflated - having no connection with the original or actual cost. We should bear in mind that it is after discussing the effect or impact of the issue of the bonus shares, on the value of the original shares generally and also the various possible methods for determining the cost of the bonus shares, this Court in Dalmia Investment Co. case stated that the real cost to the assessee of the bonus shares cannot be taken to be nil or at their face value and they have to be valued by spreading the cost of the old shares over the old shares and the new issue (bonus shares), taken together etc. The principle so laid down is one of the general application. We should also state that the character of the owner of the shares as an investor or as a dealer is of noThere is no dichotomy as to whether the shares are held by an investor or dealer in shares. In both the cases, it is surplus receipt that is brought to tax, either as "capital gains" or "profit or loss", as the case may be, and in accordance with relevant statutorydecisions reported in Madura Mills Co. Ltd. v. CIT (Mad)], D. M. Dahanukar v. CIT (Bom)], W. H. Brady & Co. Ltd. v. CIT Bom)], Alembic Chemical Works Ltd. (No. 1) v. CIT (Guj)] are in accord with the above view and they represent the correct law. The decisions (in Sutlej Cotton Mills Ltd. v. CIT (Cal)], CIT v. Steel Group Ltd. (Cal)], Protima Roy v. CIT (Cal)]) cited before us, misapplied the rule enunciated in Shekhawati General Traders Ltd. v. ITO and failed to bear in mind the proper principles to be applied in the matter and do not lay down the correctIn this case, the High Court has found that the original shares sold were admittedly purchased after 1954 and, therefore, the option of taking the fair market value as on 1-1-1954 (the statutory cost) was not available to the assessee. It appears to us that the principles laid down in Shekhawati General Traders Ltd. v. ITO, cannot be applied to a case where the assessee did not and could not exercise the option of the statutory cost of acquisition in the place of the actual cost of acquisition. The said decision is distinguishable. In view of the larger Bench decisions of this Court, it is fairly clear that where bonus shares are issued and some of the original shares are sold subsequently, their actual cost has to be reckoned only on the basis of "average value" (as held in Dalmia Investment and other cases) except in rare cases, where "actual cost" is notionally adopted or determined as it existed on the relevant statutory date, (Shekhawati General Traders Ltd. v. ITO. In the instant case, the High Court was justified in law in holding so and in further holding that the subsequent issue of the bonus shares has the effect of altering the original cost of acquisition of the shares as held by this Court in CIT v. Dalmia Investment Co. Ltd. and other | 0 | 5,362 | 850 | ### 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:
statutory provisions in pari materia with Sections 48 and 55(2) of the Act. In the present case we are confined to the express provisions of Section 55(2) relating to the manner in which the cost of acquisition of a capital asset has to be determined for the purpose of Section 48. Where the capital asset became the property of the assessee before the first day of January, 1954, the assessee has two options. It can decide whether it wishes to take the cost of the acquisition of the asset to it as the cost of acquisition for the purpose of Section 48 or the fair market value of the asset on the first day of January 1954. The word fair appears to have been used to indicate that any artificially inflated value is not to be taken into account. In the present case it is common ground that when the original assessment order was made the fair market value of the shares in question had been duly determined and accepted as correct by the Income Tax Officer. Under no principle or authority can anything more be read into the provisions of Section 55(2)(i) in the manner suggested by the Revenue based on the view expressed in the Dalmia Investment Co. case. The High Court completely overlooked the fact that for the ascertainment of the fair market value of the shares in question on 1-1-1954, any event prior or subsequent to the said date was wholly extraneous and irrelevant and could not be taken into consideration. If the contention of the Revenue were to be accepted the acquisition of bonus shares subsequent to 1-1-1954, will have to be taken into account which on the language of the statute it is not possible to do." * 10. A close analysis of the facts of the above case, and the ultimate conclusion reached by this Court, will go to show that the learned Judges laid stress on the fact that the assessee had opted to take the cost of acquisition as provided by the relevant statute, i.e., statutory cost of acquisition and thus substituting the market value as on 1-1-1954 in the place of actual cost of acquisition, and only in such a case, the subsequent issue of bonus shares cannot affect the issue. It is implicit from the above decision that the principle of averaging by spreading the cost over the old shares and the new bonus shares as enunciated by this Court in Dalmia Investment Co. case and other cases, will apply as a general rule in cases where the assessee claims to deduct the actual cost of acquisition, instead of the statutory cost of acquisition. It also stands to reason since the fair market value as per the "statutory cost of acquisition" will be a notional or fictional figure - mostly inflated - having no connection with the original or actual cost. We should bear in mind that it is after discussing the effect or impact of the issue of the bonus shares, on the value of the original shares generally and also the various possible methods for determining the cost of the bonus shares, this Court in Dalmia Investment Co. case stated that the real cost to the assessee of the bonus shares cannot be taken to be nil or at their face value and they have to be valued by spreading the cost of the old shares over the old shares and the new issue (bonus shares), taken together etc. The principle so laid down is one of the general application. We should also state that the character of the owner of the shares as an investor or as a dealer is of no consequence. 11. There is no dichotomy as to whether the shares are held by an investor or dealer in shares. In both the cases, it is surplus receipt that is brought to tax, either as "capital gains" or "profit or loss", as the case may be, and in accordance with relevant statutory provisions. The decisions reported in Madura Mills Co. Ltd. v. CIT (Mad)], D. M. Dahanukar v. CIT (Bom)], W. H. Brady & Co. Ltd. v. CIT Bom)], Alembic Chemical Works Ltd. (No. 1) v. CIT (Guj)] are in accord with the above view and they represent the correct law. The decisions (in Sutlej Cotton Mills Ltd. v. CIT (Cal)], CIT v. Steel Group Ltd. (Cal)], Protima Roy v. CIT (Cal)]) cited before us, misapplied the rule enunciated in Shekhawati General Traders Ltd. v. ITO and failed to bear in mind the proper principles to be applied in the matter and do not lay down the correct law. 12. In this case, the High Court has found that the original shares sold were admittedly purchased after 1954 and, therefore, the option of taking the fair market value as on 1-1-1954 (the statutory cost) was not available to the assessee. It appears to us that the principles laid down in Shekhawati General Traders Ltd. v. ITO, cannot be applied to a case where the assessee did not and could not exercise the option of the statutory cost of acquisition in the place of the actual cost of acquisition. The said decision is distinguishable. In view of the larger Bench decisions of this Court, it is fairly clear that where bonus shares are issued and some of the original shares are sold subsequently, their actual cost has to be reckoned only on the basis of "average value" (as held in Dalmia Investment and other cases) except in rare cases, where "actual cost" is notionally adopted or determined as it existed on the relevant statutory date, (Shekhawati General Traders Ltd. v. ITO. In the instant case, the High Court was justified in law in holding so and in further holding that the subsequent issue of the bonus shares has the effect of altering the original cost of acquisition of the shares as held by this Court in CIT v. Dalmia Investment Co. Ltd. and other cases.
### Response:
0
### Explanation:
8. The sheet-anchor of the appellants case before the High Court and still before us was, that the cost of acquisition of the original share, is its actual cost. The fact that the bonus shares were issued subsequently cannot be taken into account and it is not open to the Revenue to alter the cost of acquisition of the original shares.A close analysis of the facts of the above case, and the ultimate conclusion reached by this Court, will go to show that the learned Judges laid stress on the fact that the assessee had opted to take the cost of acquisition as provided by the relevant statute, i.e., statutory cost of acquisition and thus substituting the market value as on 1-1-1954 in the place of actual cost of acquisition, and only in such a case, the subsequent issue of bonus shares cannot affect the issue. It is implicit from the above decision that the principle of averaging by spreading the cost over the old shares and the new bonus shares as enunciated by this Court in Dalmia Investment Co. case and other cases, will apply as a general rule in cases where the assessee claims to deduct the actual cost of acquisition, instead of the statutory cost of acquisition. It also stands to reason since the fair market value as per the "statutory cost of acquisition" will be a notional or fictional figure - mostly inflated - having no connection with the original or actual cost. We should bear in mind that it is after discussing the effect or impact of the issue of the bonus shares, on the value of the original shares generally and also the various possible methods for determining the cost of the bonus shares, this Court in Dalmia Investment Co. case stated that the real cost to the assessee of the bonus shares cannot be taken to be nil or at their face value and they have to be valued by spreading the cost of the old shares over the old shares and the new issue (bonus shares), taken together etc. The principle so laid down is one of the general application. We should also state that the character of the owner of the shares as an investor or as a dealer is of noThere is no dichotomy as to whether the shares are held by an investor or dealer in shares. In both the cases, it is surplus receipt that is brought to tax, either as "capital gains" or "profit or loss", as the case may be, and in accordance with relevant statutorydecisions reported in Madura Mills Co. Ltd. v. CIT (Mad)], D. M. Dahanukar v. CIT (Bom)], W. H. Brady & Co. Ltd. v. CIT Bom)], Alembic Chemical Works Ltd. (No. 1) v. CIT (Guj)] are in accord with the above view and they represent the correct law. The decisions (in Sutlej Cotton Mills Ltd. v. CIT (Cal)], CIT v. Steel Group Ltd. (Cal)], Protima Roy v. CIT (Cal)]) cited before us, misapplied the rule enunciated in Shekhawati General Traders Ltd. v. ITO and failed to bear in mind the proper principles to be applied in the matter and do not lay down the correctIn this case, the High Court has found that the original shares sold were admittedly purchased after 1954 and, therefore, the option of taking the fair market value as on 1-1-1954 (the statutory cost) was not available to the assessee. It appears to us that the principles laid down in Shekhawati General Traders Ltd. v. ITO, cannot be applied to a case where the assessee did not and could not exercise the option of the statutory cost of acquisition in the place of the actual cost of acquisition. The said decision is distinguishable. In view of the larger Bench decisions of this Court, it is fairly clear that where bonus shares are issued and some of the original shares are sold subsequently, their actual cost has to be reckoned only on the basis of "average value" (as held in Dalmia Investment and other cases) except in rare cases, where "actual cost" is notionally adopted or determined as it existed on the relevant statutory date, (Shekhawati General Traders Ltd. v. ITO. In the instant case, the High Court was justified in law in holding so and in further holding that the subsequent issue of the bonus shares has the effect of altering the original cost of acquisition of the shares as held by this Court in CIT v. Dalmia Investment Co. Ltd. and other
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Commissioner Of Income-Tax, West Bengalcalcutta & Anr Vs. Hemchandra Kar & Ors | agreed with the view of the Income-tax Officer. The Tribunal was finally satisfied that the amounts of the High Denomination notes which had been encashed in the name of the five members individually belonged to the Hindu Undivided Family. The following questions of law were referred by the Tribunal for the decision of the High Court:(1) "Whether, on the facts and in the circumstances of the case, the assessment made upon the assessee Hindu Undivided family pursuant to a notice under section 34 of the Indian Income-tax Act issued on the 2nd February, 1955 was in accordance with law.(2) Whether on the facts and in the circumstances of the case, the sum of Rs. 1,10,000 was rightly included in the assessment of the Hindu Undivided family"The High Court held that the second notice issued under S. 34 of the Act on February 2, 1955 could not have been issued by the Income-tax Officer to the Hindu Undivided Family. It was found that when the first reassessment was made the primary facts necessary for reassessment of the family were in the possession of the Income-tax Officer. These facts came into possession not by virtue of disclosure made by the family but were discovered by him otherwise. At the time of the first reopening of the assessment of the Hindu Undivided Family and of the individual members the question of assessment of the entire amount represented by the High Denomination Notes was under direct consideration. It was open to the Income-tax Officer to assess the whole amount of Rs. 19,000/- and Rupees 1,10,000/- in the hands of the Hindu Undivided Family at that stage. The escapement, if any, therefore, took place by reason of the failure of the Income-tax Officer to assess the family with respect to the sum of Rupees 1,10,000 when he was in full possession of all the material facts. The answer to the first question was given by the High Court in the negative. On the second question it was considered that the answer would be merely academic but in spite of this High Court proceeded to express its agreement with the finding of the Tribunal on the point.4. Section 34 of the Act has been amended from time to time. In the present case this section, as amended in 1948, would be applicable by reason of S. 31 of the Income-tax Amendment Act, 1953. We are concerned with S. 34 (1) (a). If the present case could be brought under that provision the second notice which was issued in February 1955 would not be barred by time. But if action could not be taken under it there could be no manner of doubt that the notices which were issued and the reassessment which was made would be beyond the period prescribed. Section 34 (1) (a) is in the following terms:"Income escaping assessment. - (1) If -(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or"What has to be seen is whether the Income-tax Officer could have reason to believe that omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment there had been escapement of income. The High Court rightly relied on the observations in the majority judgment in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ) that in every assessment proceedings the assessing authority will, for the purpose of computing or determining the proper tax, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession whether on disclosure by the assessee or discovered by him on the basis of facts disclosed or otherwise the assessing authority has to draw inferences as regards certain other facts and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences. Therefore, the duty of disclosing all the primary facts lies on the assessee. The primary facts were admittedly within the knowledge of the Income-tax Officer at the time when he completed the first reassessment under S. 34. This is clear from the order of the Appellate Assistant Commissioner to whom the Incometax Officer reported that in the course of reassessment under S. 34 in respect of individual members it became anparent that "they acted as merely name lenders of the Hindu Undivided Family and that the total sum of Rs. 1,10,000 encashed by them actually belonged to the Hindu Undivided Family."When the Income-tax Officer was in possession of all these facts and he proceeded to make the reassessment of the individual members by including the amounts in question in their individual accounts he could not a few days later merely change his opinion and issue the notices under S. 34 to the Hindu Undivided Family. In this situation it could hardly be said that the reuirements of S. 34 (1) (a) were satisfied. The escapement had taken place by reason of the failure of the Income-tax Officer to include the sum of Rs. 1,10,000 in the assessment of the Hindu Undivided Family when he was in full possession of all the necessary and material facts. We have no doubt that the High Court returned the correct answer to the first question. Evidently the second question need not be answered as it becomes purely academic when answer to the first question is in favour of the assessee. | 0[ds]What has to be seen is whether ther could have reason to believe that omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment there had been escapement of income.The High Court rightly relied on the observations in the majority judgment in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ) that in every assessment proceedings the assessing authority will, for the purpose of computing or determining the proper tax, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession whether on disclosure by the assessee or discovered by him on the basis of facts disclosed or otherwise the assessing authority has to draw inferences as regards certain other facts and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences. Therefore, the duty of disclosing all the primary facts lies on the assessee. The primary facts were admittedly within the knowledge of the Income-tax Officer at the time when he completed the first reassessment under S. 34. This is clear from the order of the Appellate Assistant Commissioner to whom the Incometax Officer reported that in the course of reassessment under S. 34 in respect of individual members it became anparent that "they acted as merely name lenders of the Hindu Undivided Family and that the total sum of Rs. 1,10,000 encashed by them actually belonged to the Hindu Undivided Family."When the Income-tax Officer was in possession of all these facts and he proceeded to make the reassessment of the individual members by including the amounts in question in their individual accounts he could not a few days later merely change his opinion and issue the notices under S. 34 to the Hindu Undivided Family. In this situation it could hardly be said that the reuirements of S. 34 (1) (a) were satisfied. The escapement had taken place by reason of the failure of the Income-tax Officer to include the sum of Rs. 1,10,000 in the assessment of the Hindu Undivided Family when he was in full possession of all the necessary and material facts. We have no doubt that the High Court returned the correct answer to the first question. Evidently the second question need not be answered as it becomes purely academic when answer to the first question is in favour of the assessee. | 0 | 1,559 | 454 | ### 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:
agreed with the view of the Income-tax Officer. The Tribunal was finally satisfied that the amounts of the High Denomination notes which had been encashed in the name of the five members individually belonged to the Hindu Undivided Family. The following questions of law were referred by the Tribunal for the decision of the High Court:(1) "Whether, on the facts and in the circumstances of the case, the assessment made upon the assessee Hindu Undivided family pursuant to a notice under section 34 of the Indian Income-tax Act issued on the 2nd February, 1955 was in accordance with law.(2) Whether on the facts and in the circumstances of the case, the sum of Rs. 1,10,000 was rightly included in the assessment of the Hindu Undivided family"The High Court held that the second notice issued under S. 34 of the Act on February 2, 1955 could not have been issued by the Income-tax Officer to the Hindu Undivided Family. It was found that when the first reassessment was made the primary facts necessary for reassessment of the family were in the possession of the Income-tax Officer. These facts came into possession not by virtue of disclosure made by the family but were discovered by him otherwise. At the time of the first reopening of the assessment of the Hindu Undivided Family and of the individual members the question of assessment of the entire amount represented by the High Denomination Notes was under direct consideration. It was open to the Income-tax Officer to assess the whole amount of Rs. 19,000/- and Rupees 1,10,000/- in the hands of the Hindu Undivided Family at that stage. The escapement, if any, therefore, took place by reason of the failure of the Income-tax Officer to assess the family with respect to the sum of Rupees 1,10,000 when he was in full possession of all the material facts. The answer to the first question was given by the High Court in the negative. On the second question it was considered that the answer would be merely academic but in spite of this High Court proceeded to express its agreement with the finding of the Tribunal on the point.4. Section 34 of the Act has been amended from time to time. In the present case this section, as amended in 1948, would be applicable by reason of S. 31 of the Income-tax Amendment Act, 1953. We are concerned with S. 34 (1) (a). If the present case could be brought under that provision the second notice which was issued in February 1955 would not be barred by time. But if action could not be taken under it there could be no manner of doubt that the notices which were issued and the reassessment which was made would be beyond the period prescribed. Section 34 (1) (a) is in the following terms:"Income escaping assessment. - (1) If -(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or"What has to be seen is whether the Income-tax Officer could have reason to believe that omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment there had been escapement of income. The High Court rightly relied on the observations in the majority judgment in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ) that in every assessment proceedings the assessing authority will, for the purpose of computing or determining the proper tax, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession whether on disclosure by the assessee or discovered by him on the basis of facts disclosed or otherwise the assessing authority has to draw inferences as regards certain other facts and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences. Therefore, the duty of disclosing all the primary facts lies on the assessee. The primary facts were admittedly within the knowledge of the Income-tax Officer at the time when he completed the first reassessment under S. 34. This is clear from the order of the Appellate Assistant Commissioner to whom the Incometax Officer reported that in the course of reassessment under S. 34 in respect of individual members it became anparent that "they acted as merely name lenders of the Hindu Undivided Family and that the total sum of Rs. 1,10,000 encashed by them actually belonged to the Hindu Undivided Family."When the Income-tax Officer was in possession of all these facts and he proceeded to make the reassessment of the individual members by including the amounts in question in their individual accounts he could not a few days later merely change his opinion and issue the notices under S. 34 to the Hindu Undivided Family. In this situation it could hardly be said that the reuirements of S. 34 (1) (a) were satisfied. The escapement had taken place by reason of the failure of the Income-tax Officer to include the sum of Rs. 1,10,000 in the assessment of the Hindu Undivided Family when he was in full possession of all the necessary and material facts. We have no doubt that the High Court returned the correct answer to the first question. Evidently the second question need not be answered as it becomes purely academic when answer to the first question is in favour of the assessee.
### Response:
0
### Explanation:
What has to be seen is whether ther could have reason to believe that omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment there had been escapement of income.The High Court rightly relied on the observations in the majority judgment in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I Calcutta, (1961) 41 ITR 191 = (AIR 1961 SC 372 ) that in every assessment proceedings the assessing authority will, for the purpose of computing or determining the proper tax, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession whether on disclosure by the assessee or discovered by him on the basis of facts disclosed or otherwise the assessing authority has to draw inferences as regards certain other facts and ultimately from the primary facts and the further facts inferred from them the authority has to draw the proper legal inferences. Therefore, the duty of disclosing all the primary facts lies on the assessee. The primary facts were admittedly within the knowledge of the Income-tax Officer at the time when he completed the first reassessment under S. 34. This is clear from the order of the Appellate Assistant Commissioner to whom the Incometax Officer reported that in the course of reassessment under S. 34 in respect of individual members it became anparent that "they acted as merely name lenders of the Hindu Undivided Family and that the total sum of Rs. 1,10,000 encashed by them actually belonged to the Hindu Undivided Family."When the Income-tax Officer was in possession of all these facts and he proceeded to make the reassessment of the individual members by including the amounts in question in their individual accounts he could not a few days later merely change his opinion and issue the notices under S. 34 to the Hindu Undivided Family. In this situation it could hardly be said that the reuirements of S. 34 (1) (a) were satisfied. The escapement had taken place by reason of the failure of the Income-tax Officer to include the sum of Rs. 1,10,000 in the assessment of the Hindu Undivided Family when he was in full possession of all the necessary and material facts. We have no doubt that the High Court returned the correct answer to the first question. Evidently the second question need not be answered as it becomes purely academic when answer to the first question is in favour of the assessee.
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Kothari Filaments and Anr Vs. Commissioner of Customs Kolkata and Ors | It had categorically been stated that as the enquiry was yet to be completed, disclosure of the evidences was not permissible. Despite the fact that the result of such overseas enquiry was not conclusive, as noticed hereinbefore, liberal use thereof was made by the Commissioner of Customs in his order. The Commissioner of Customs was conscious of the fact that the result of the enquiry was not conclusive one way or the other. It is one thing to say that denial to supply the documents collected in the said enquiry has a statutory backing but it is another thing to say that use thereof was to be made without supplying the copies thereof. 15. The statutory authorities under the Act exercise quasi-judicial function. By reason of the impugned order, the properties could be confiscated, redemption fine and personal fine could be imposed and in the event an importer was found guilty of violation of the provisions of the Act. In the event, a finding as regards violation of the provisions of the Act is arrived at, several steps resulting in civil or evil consequences may be taken. The principles of natural justice, therefore, were required to be complied with. 16. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with mis-declaration is entitled to know the ground on the basis whereof he would be penalized. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. 17. This aspect of the matter has been considered in Rajesh Kumar & Ors. v. Dy. CIT & Ors. [(2007) 2 SCC 181] , wherein this Court held : "In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi judicial order. There might have been difference of opinions at one point of time, but it is now well-settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated {See A.K. Kraipak and Ors. v. Union of India and Ors. [(1969) SCC 262] and Chandra Bhawan Boarding and Lodging, Bangalore v. State of Mysore and Anr. [AIR 1970 SC 2042 ] and S.L. Kapoor v. Jagmohan and Ors. [(1980 4 SCC 379] .Recently, in V.C. Banaras Hindu University v. Shrikant [2006 (6) SCALE 66 ], this Court stated the law, thus:`An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness."It was observed :"Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue.In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. " In S.L. Kapoor v. Jagmohan & Ors. [(1980 (4) SCC 379] , this Court observed : "18. In Ridge v. Baldwin and Ors. [1964] AC 40 @ 68, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at p. 68) :`It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellants pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course." {See also M/s. Kishinchand Chellaram v. The Commissioner of Income-tax, Bombay City II, Bombay [AIR 1980 SC 2117 ]. 18. In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case.19. For the views we have taken, the impugned judgment cannot be sustained. It is set aside accordingly. The matter is remitted to the Commissioner of Customs for consideration of the matter afresh. The Commissioner, in the event, intends to rely on the said documents, may supply the relevant copies thereof or at least allow the appellant to inspect the same. | 1[ds]18. In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case.19. For the views we have taken, the impugned judgment cannot be sustained. It is set aside accordingly. The matter is remitted to the Commissioner of Customs for consideration of the matter afresh. The Commissioner, in the event, intends to rely on the said documents, may supply the relevant copies thereof or at least allow the appellant to inspect the same. | 1 | 2,503 | 104 | ### 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:
It had categorically been stated that as the enquiry was yet to be completed, disclosure of the evidences was not permissible. Despite the fact that the result of such overseas enquiry was not conclusive, as noticed hereinbefore, liberal use thereof was made by the Commissioner of Customs in his order. The Commissioner of Customs was conscious of the fact that the result of the enquiry was not conclusive one way or the other. It is one thing to say that denial to supply the documents collected in the said enquiry has a statutory backing but it is another thing to say that use thereof was to be made without supplying the copies thereof. 15. The statutory authorities under the Act exercise quasi-judicial function. By reason of the impugned order, the properties could be confiscated, redemption fine and personal fine could be imposed and in the event an importer was found guilty of violation of the provisions of the Act. In the event, a finding as regards violation of the provisions of the Act is arrived at, several steps resulting in civil or evil consequences may be taken. The principles of natural justice, therefore, were required to be complied with. 16. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with mis-declaration is entitled to know the ground on the basis whereof he would be penalized. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. 17. This aspect of the matter has been considered in Rajesh Kumar & Ors. v. Dy. CIT & Ors. [(2007) 2 SCC 181] , wherein this Court held : "In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi judicial order. There might have been difference of opinions at one point of time, but it is now well-settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated {See A.K. Kraipak and Ors. v. Union of India and Ors. [(1969) SCC 262] and Chandra Bhawan Boarding and Lodging, Bangalore v. State of Mysore and Anr. [AIR 1970 SC 2042 ] and S.L. Kapoor v. Jagmohan and Ors. [(1980 4 SCC 379] .Recently, in V.C. Banaras Hindu University v. Shrikant [2006 (6) SCALE 66 ], this Court stated the law, thus:`An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness."It was observed :"Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue.In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. " In S.L. Kapoor v. Jagmohan & Ors. [(1980 (4) SCC 379] , this Court observed : "18. In Ridge v. Baldwin and Ors. [1964] AC 40 @ 68, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at p. 68) :`It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellants pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course." {See also M/s. Kishinchand Chellaram v. The Commissioner of Income-tax, Bombay City II, Bombay [AIR 1980 SC 2117 ]. 18. In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case.19. For the views we have taken, the impugned judgment cannot be sustained. It is set aside accordingly. The matter is remitted to the Commissioner of Customs for consideration of the matter afresh. The Commissioner, in the event, intends to rely on the said documents, may supply the relevant copies thereof or at least allow the appellant to inspect the same.
### Response:
1
### Explanation:
18. In view of the aforementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case.19. For the views we have taken, the impugned judgment cannot be sustained. It is set aside accordingly. The matter is remitted to the Commissioner of Customs for consideration of the matter afresh. The Commissioner, in the event, intends to rely on the said documents, may supply the relevant copies thereof or at least allow the appellant to inspect the same.
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National Textile Corporation (South Maharashtra) Limited Vs. Shramik Janata Union and Others | Acts pertaining to nationalisation, the provisions relating to division of liabilities in these Acts is somewhat similar to the provisions of section 3(7) of the Textile Undertakings (Taking over of Management ) Act, 1983. Clearly, therefore, all liabilities which have been accrued prior to the appointed day are of the previous owner or of the textile company and not of the Central Government or the Custodian.23. The reinstatement, however, is not a liability which can be said to have been accrued prior to the appointed day. In fact, the Supreme Court, in the case of Workmen v. The Bharat Coking Coal Ltd., has observed in connection with reinstatement that workers are not a liability at all. Even if reinstatement is a liability, it is not a liability which is crystalised at the time of dismissal as contended by the petitioner. It is a continuing liability which arises afresh from day to day and continues until the workmen are actually reinstated. Hence after the appointed day it continues to be the liability of the petitioners alone. On the other hand, as far as back wages are concerned, the liability to pay back wages as per the award prior to the appointed day i.e. upto 18-10-1983 would clearly be the liability of the textile company whose management is taken over. Because this liability has accrued prior to 18-10-1983. But the liability to pay backwages as per the award after 18-10-1983 is clearly of the petitioners, as the workers are deemed to have continued in the employment of the petitioners after the appointed day.24. It is next submitted by Mr. Gokhale that even if it is held that the liability to pay 50% of the back wages as per the award to these two workmen prior to 18-10-1983 is of the textile company, such a liability can be enforced by execution proceedings which may be available in law, against the assets of the textile company. Under the said Act the ownership of the textile undertaking is not transferred to the Central Government or the Custodian. In fact, as the relates to the Act sets out, the Act merely provides for the take over of the management of the textile undertakings pending nationalisation. No nationalisation has however taken place. With the result that the textile company continues to be the owner of all its assets including the textile undertaking whose management is taken over. It is contended by Mr.Gokhale that if the textile company continues to be the owner of all its assets including the textile undertaking, the workers are entitled to adopt execution proceedings against the assets of the textile company including the textile undertaking for the purpose of recovery of their dues.25. The submission, though prima facie attractive, has to be examined in the context of the scheme of the entire Act. In the first place, as the preamble shows, the taking over of the management of textile undertakings is for the purpose of ensuring that the undertakings are properly rehabilitated, the interest of workmen employed is protected and the production and distribution of textiles is not affected. For this purpose, the management of the textile undertakings is taken over so that additional investment of a very large amount can be pumped into these undertakings to make them viable. With this end in view, section 3 of the Act ensures that all the properties and assets of the textile undertakings are taken charge of by the Central Government or the Custodian, as the case may be. In fact, section 3(6) provides that even when a receiver is appointed or any third person is in-charge of such assets pursuant to any judgement, decree or order of a court or tribunal or the authority, even such a person who may be in lawful custody of assets, is required to hand over these assets to the Custodian irrespective of the claims which other creditors may have against such assets.26. Section 6 enables the Central Government to issue a notification for the purpose of relieving the undertakings of some of the financial burdens to ensure that the undertakings can function without being unduly hampered by contracts and obligations in force. Sections 12 and 13 are also in aid of these provisions.27. The scheme of the Act, therefore, appears to be that the undertakings whose management is taken over are not to be hampered by any past liabilities which may have been incurred. If decrees and orders or awards which have been obtained in connection with such past liabilities are enforced against the properties of the textile undertakings whose management is taken over, the entire Act will become infructuous. In this context if we look at section 3(7), it provides that any liability incurred by a textile company before the appointed day shall not be enforced against the Central Government or the Custodian. The Custodian is defined under section 2(b) as "the person appointed under section 4 to take over the management of the undertakings". When, therefore, there is a prohibition against the enforcement of prior liabilities against the Custodian, it is a prohibition against the enforcement of such liabilities against a person who is in custody of assets and properties of the textile undertaking as described if section 3(2) read with section 4. There is no question of the Custodian being personally liable or being protected against any personal liabilities in such a situation. In fact, the Custodian may be a company incorporated under the Companies Act, 1956 as the petitioners are, in the present case. Therefore, this prohibition must be considered as a prohibition against enforcement of such prior liabilities against the assets and properties of the textile undertakings which are in the hands of the Custodian under the provisions of the said Act. The contention, therefore, that the prior liabilities of the workmen incurred before the appointed day can be enforced in execution against the properties and assets of the textile undertaking in charge of the Custodian under the said Act, must be rejected. | 0[ds]This contention is not sustainable looking to the nature of the charges and the findings which are given against respondents Nos. 2 and 3. In the first place, the only charge is of selling 6 pieces of cloth at the rate of Rs.55 per piece instead of Rs. 62/per piece. It is an accepted position that these pieces which were sold were not goods which were readily available for sale in the retail shop. They had been produced from the godown and looking to the manner in which the approval slip was prepared in respect of these goods, there was every possibility of a mistake having been committed in respect of the rate which was charged. The total loss to the mills was only Rs.In the award the Labour Court has pointed out that there has not been any previous misconduct on the part of either of the respondent Nos. 2 or 3. The Labour Court has also held that dishonest intention on the part of respondents Nos. 2 and 3 has not been established. It has saidthe punishment of dismissal for loss caused to the company of Rs.7/per piece and considering the fact that the items were not running items and those were lying in the store room and that he approval slip was given by Mr. DesaiI am of the opinion, that the punishment of dismissal is shockingly disproportionate to the charges proved against both the workmen. There is absolutely no evidence on record to show that the past record of the workmen was such that the service punishment was warranted". Looking to these observations of the Labour Court and the circumstances set out, in our view, the punishment under the award cannot be considered as perverse or not warranted by the evidence on record. There is, therefore, no substance in the first contention raised on behalf of thethe liability to reinstate these workmen and to pay them half the backwages is a liability which has accrued prior to 18th October, 1983, which is the date from which the management ofrespondents Nos. 4 andmills has been taken over by the petitioner. Hence in view of the provisions of section 3(7) of the Textile Undertaking (Taking Over of Management ) Act, 1983 the liability to reinstate the workmen and to pay them half the backwages is that ofrespondents Nos. 4 andonly and it cannot be enforced against theWe do not see how this decision helps in the interpretation of section 3(7) of the present Act. Section 9(1) of the Coking Coal Mines (Nationalisation) Act, 1972 provides generally for the enforcement of liabilities incurred prior to the appointed day against the owner and not against the Central Government or the Government Company.clarifies the nature of some of these liabilities. Hence the Supreme Court interpreted the twotogether. The present section 3 of the Textile Undertakings (Taking Over of Management) Act, 1983 propounds a very different scheme. Apart from section 3(7), there is no general provision in section 3 regarding liabilities incurred by the textile company prior to the appointed day, which section 3(7) can be said to clarify. Hence the liability referred to in section 3(7) has no nexus with any earlier provisions in(1) to (6) of section 3. It cannot, therefore, be interpreted narrowly with reference to earlier parts of section 3. The entire section 3 forms a part of a Chapter dealing with taking over of management of certain textile undertakings. In connection with such taking over of management,(3) and (4) of section 3 provide for termination of certain contracts of management and vacating certain management offices.(5) further provides in this connection that any compensation for such termination cannot be claimed.(1) to (6) of section 3 deal with taking over to management of a textile undertaking, which is extensively defined in(2) of section 3 some of the consequences of such a take over are spelt out in(3), (4), (5) and (6)However, as a result of such taking over of management, a question may arise about the responsibility for the discharge of liabilities incurred prior to the date of take over. None of the earlier(1) to (6) deal with such liabilities. A doubt may arise as to whether such liabilities are taken over by the Central Government or not. Hence it is provided in section 3(7), for the removal of doubts, that any liability incurred by a textile company prior to such taking over shall be enforceable against the concerned textile company and not against the Central Government or the Custodian . The Phrase "For the removal of doubts", therefore, has to be read in the context of the taking over of management. Section 3does not, in our view restrict the claims which can be made against the textile company only to claims pertaining to(3) and (4) of sectionvery same preamble sets out that there was gross financial mismanagement of textile undertakings prior to their take over under the said Act. These companies had borrowed large sums from financial institutions and further investment of very large sums was necessary for rehabilitating these undertakings. This would clearly indicate that without further investment of large sums , these undertakings were not viable and were, therefore, likely to close down . In this context, any special provisions under the Act to ensure survival of these undertakings would be in the interest of the workmen, who would otherwise lose their jobs if the undertakings were to close down. In view of the problems faced by these undertaking it was, however, necessary to make certain special provisions. For example, under section 6, which forms part of Chapter III dealing with power to provide relief to textile undertakings, it is set out that the Central Government may, if it is necessary in the interest of the general public, with a view to preventing any fall in the volume of production, by a notification declare that all or any of the enactments specified in the Second Schedule shall not apply to such undertaking , or shall apply with such modification or alteration as may be prescribed. These enactments are the Minimum Wages Act, the Industrial Disputes Act 1947 and the Industrial Employment Standing Orders Act, 1946. Therefore, in public interest, and looking to the financial state of these undertakings, even the Minimum Wages Act , which is for the benefit of workmen , may not be made applicable to such undertakings. This is in the wider public interest to ensure that the undertaking functions and the employment of workmen is not jeopardised. Under section 6(b) the operation of even agreements, settlements, awards or standing orders which were in force immediately before the date of issue of the notification may be suspended by a notification. As a result any rights, privileges, obligations and liabilities arising under them before the date of notification shall remain suspended. Thus, the Act does contemplate certain measures which may to some extent adversely affect the rights of the employees employed by the textile undertakings. But this has been considered to be in public interest and necessary to prevent any fall in the volume of production of the undertaking. Therefore, the interest of workers has to be looked at in this proper perspective of ensuring that the undertaking functions and continues to give production thereby ensuring the continuity of employment of workers. Moreover, under section 13 of the said Act, the Custodian has the power to terminate a contract of employment before the appointed date if it is found to be unduly oncrous. Looking to the scheme of the Act, therefore, it is not possible to say that every liability in connection with the employees of the textile undertakings, whether incurred prior to the appointed day or not, is necessarily taken over by thecontention does not appear to be correct. Section 6 has no connection with any prior liability incurred in connection with workmen before the appointed day.(1) gives the Central Government power to issue a notification as a result of which either the enactment specified in the Second Schedule shall not apply or apply with modification from the date of issue of the notification . This refers to events which may happen after the take over of management. It has no reference to any liability incurred prior to the take over of the management. Similarly section 6(b) deals with the power of the Central Government to issue a notification suspending any rights, obligations etc. under settlements, award etc. which may be in force at the time when the notification is issued. This also deals with settlements, awards standing orders etc. which may govern the employer and employees after the take over. These also have no reference to any past liabilities which may have already accured before the appointed day. Similarly, under(4), if such a notification is issued, then, any pending proceedings in that connection are to remain stayed. In our view, none of the provisions of section 6 either expressly or by necessary implication indicate that prior liabilities which have accrued in respect of workmen are taken over by the petitioner . Even section 13, which has been referred to earlier, deals with termination of contracts after the take4 (10) merely requires a person incharge of the management of a textile undertaking immediately before the appointed day to furnish a complete inventory, including an inventory of all liabilities and obligations of the textile undertaking to the Central Government. Furnishing an inventory of liabilities does not entail that such liabilities are taken over by the Central Government or the Custodian. We, therefore, find it difficult to accept the proposition that section 3(7) does not cover the liabilities incurred by the textile company before the appointed day pertaining to its workmen and the same are enforceable against the Central Government or the Custodian. Section 3(7) in terms declares that any liability incurred by the textile company in relation to the textile undertaking before the appointed day shall be enforceable against the concerned textile company and shall not be enforceable against the Central Government or the Custodian. In view of these clear provisions, we cannot accept the contentions raised on behalf of the workmen.In the case of (National Textile Corporation v. Rashtriya Mill Mazdoor Sangh)2, reported in (1987)2 C.L.R. p.p. 482 a Division Bench of this High Court (of which one of us (Sugla, J.) was a party) has held that when the management of the textile undertaking is taken over under the said Act the provisions of section 25FF of the Industrial Disputes Act, 1947 have no application since it is a statutory take over under the provisions of the said Act. The Division Bench has held that the employees to the textile undertaking on the appointed day continue to be the employees of the textile undertaking whose management is so taken over by the petitioner under the said Act. In view of this decision, therefore, the two respondent workmen are deemed to have continued to be in the service of the undertaking on the appointed day. The liability, therefore, to reinstate the workmen is a continuing liability. It continues till such time as the workmen are actually reinstated. Undoubtedly, prior to the appointed day, it was the liability of the textile company. But after the appointed day, the liability continues and it arises afresh fromuntil the workmen are reinstated. It is, therefore, a liability which continues to arise after the appointed day. The petitioner, therefore, is liable to reinstate the twocase dealt with some employees of that part of the state of M.P. which subsequently became a part of the State of Bombay under the State Reorganisation Act. 1956. These employees had been dismissed from service prior to the State Reorganisation Act, 1956. Coming into effect. They had, however, challenged their dismissal as wrongful and had claimed reinstatement. After the State Reorganisation Act came into force, they sought to implead the State of Bombay also as a party to these proceedings. This was resisted by the State of Bombay. The Division Bench granted the application of some of these petitioner s to implead the State of Bombay as a party to these proceedings. At paragraph 24 of the judgement, however, the Division Bench has observed that even assuming that each of the orders of dismissal were made in contravention of the provisions of Art. 311(2) of the Constitution, it was an order made by the authority which had jurisdiction to pass such an order. Hence the order of dismissal cannot be termed as non est or just a piece of paper. It is contended by the petitioners on the basis of this judgment that there were orders of dismissal which could not be treated as non est at the time when they took over the management. Hence these employees cannot continue in service of the petitioner after the appointed day. In our view, reliance placed by the petitioner s on this decision of the Bombay High Court is unwarranted. In the first place, the Division Bench was not required to consider whether the dismissal of employees was non est or not . The only question before the Division Bench was whether the State of Bombay should be impleaded as a party to the proceedings challenging the dismissal order. Secondly, in the case before the Division Bench there were no orders of reinstatement. The only orders which were then in existence were orders of dismissal. In the case before us there is an order of reinstatement passed in proceedings to which the petitioners were a party. These orders of reinstatement are valid and binding. As a result of these orders of reinstatement, it is the order of dismissal which is not non est. In fact, this is what the Supreme Court has observed in the case of The Workmen v. The Bharat Coking Coal Ltd. (supra) A.I.R 1978 S.C. 979. Therefore, the decision in the case of W.W.Joshi v. State of Bombay, reported in A.I.R. 1959 Bom. 363 (at Nagpur) and the observations in para 24 of the judgment, have no application to the presentthat case under the Sick Textile Undertakings (Nationalisation) Act, 1974 the mill vested in the Government after its management was taken over. The Court said that the liability of the former owner for provident fund contribution and administration charges is not wiped off. This has no relevance to the case before us because the liability had clearly accrued prior to the appointed day.The submission, though prima facie attractive, has to be examined in the context of the scheme of the entire Act. In the first place, as the preamble shows, the taking over of the management of textile undertakings is for the purpose of ensuring that the undertakings are properly rehabilitated, the interest of workmen employed is protected and the production and distribution of textiles is not affected. For this purpose, the management of the textile undertakings is taken over so that additional investment of a very large amount can be pumped into these undertakings to make them viable. With this end in view, section 3 of the Act ensures that all the properties and assets of the textile undertakings are taken charge of by the Central Government or the Custodian, as the case may be. In fact, section 3(6) provides that even when a receiver is appointed or any third person isof such assets pursuant to any judgement, decree or order of a court or tribunal or the authority, even such a person who may be in lawful custody of assets, is required to hand over these assets to the Custodian irrespective of the claims which other creditors may have against such assets.The scheme of the Act, therefore, appears to be that the undertakings whose management is taken over are not to be hampered by any past liabilities which may have been incurred. If decrees and orders or awards which have been obtained in connection with such past liabilities are enforced against the properties of the textile undertakings whose management is taken over, the entire Act will become infructuous. In this context if we look at section 3(7), it provides that any liability incurred by a textile company before the appointed day shall not be enforced against the Central Government or the Custodian. The Custodian is defined under section 2(b) as "the person appointed under section 4 to take over the management of the undertakings". When, therefore, there is a prohibition against the enforcement of prior liabilities against the Custodian, it is a prohibition against the enforcement of such liabilities against a person who is in custody of assets and properties of the textile undertaking as described if section 3(2) read with section 4. There is no question of the Custodian being personally liable or being protected against any personal liabilities in such a situation. In fact, the Custodian may be a company incorporated under the Companies Act, 1956 as the petitioners are, in the present case. Therefore, this prohibition must be considered as a prohibition against enforcement of such prior liabilities against the assets and properties of the textile undertakings which are in the hands of the Custodian under the provisions of the said Act. The contention, therefore, that the prior liabilities of the workmen incurred before the appointed day can be enforced in execution against the properties and assets of the textile undertaking in charge of the Custodian under the said Act, must be rejected. | 0 | 7,519 | 3,266 | ### 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:
Acts pertaining to nationalisation, the provisions relating to division of liabilities in these Acts is somewhat similar to the provisions of section 3(7) of the Textile Undertakings (Taking over of Management ) Act, 1983. Clearly, therefore, all liabilities which have been accrued prior to the appointed day are of the previous owner or of the textile company and not of the Central Government or the Custodian.23. The reinstatement, however, is not a liability which can be said to have been accrued prior to the appointed day. In fact, the Supreme Court, in the case of Workmen v. The Bharat Coking Coal Ltd., has observed in connection with reinstatement that workers are not a liability at all. Even if reinstatement is a liability, it is not a liability which is crystalised at the time of dismissal as contended by the petitioner. It is a continuing liability which arises afresh from day to day and continues until the workmen are actually reinstated. Hence after the appointed day it continues to be the liability of the petitioners alone. On the other hand, as far as back wages are concerned, the liability to pay back wages as per the award prior to the appointed day i.e. upto 18-10-1983 would clearly be the liability of the textile company whose management is taken over. Because this liability has accrued prior to 18-10-1983. But the liability to pay backwages as per the award after 18-10-1983 is clearly of the petitioners, as the workers are deemed to have continued in the employment of the petitioners after the appointed day.24. It is next submitted by Mr. Gokhale that even if it is held that the liability to pay 50% of the back wages as per the award to these two workmen prior to 18-10-1983 is of the textile company, such a liability can be enforced by execution proceedings which may be available in law, against the assets of the textile company. Under the said Act the ownership of the textile undertaking is not transferred to the Central Government or the Custodian. In fact, as the relates to the Act sets out, the Act merely provides for the take over of the management of the textile undertakings pending nationalisation. No nationalisation has however taken place. With the result that the textile company continues to be the owner of all its assets including the textile undertaking whose management is taken over. It is contended by Mr.Gokhale that if the textile company continues to be the owner of all its assets including the textile undertaking, the workers are entitled to adopt execution proceedings against the assets of the textile company including the textile undertaking for the purpose of recovery of their dues.25. The submission, though prima facie attractive, has to be examined in the context of the scheme of the entire Act. In the first place, as the preamble shows, the taking over of the management of textile undertakings is for the purpose of ensuring that the undertakings are properly rehabilitated, the interest of workmen employed is protected and the production and distribution of textiles is not affected. For this purpose, the management of the textile undertakings is taken over so that additional investment of a very large amount can be pumped into these undertakings to make them viable. With this end in view, section 3 of the Act ensures that all the properties and assets of the textile undertakings are taken charge of by the Central Government or the Custodian, as the case may be. In fact, section 3(6) provides that even when a receiver is appointed or any third person is in-charge of such assets pursuant to any judgement, decree or order of a court or tribunal or the authority, even such a person who may be in lawful custody of assets, is required to hand over these assets to the Custodian irrespective of the claims which other creditors may have against such assets.26. Section 6 enables the Central Government to issue a notification for the purpose of relieving the undertakings of some of the financial burdens to ensure that the undertakings can function without being unduly hampered by contracts and obligations in force. Sections 12 and 13 are also in aid of these provisions.27. The scheme of the Act, therefore, appears to be that the undertakings whose management is taken over are not to be hampered by any past liabilities which may have been incurred. If decrees and orders or awards which have been obtained in connection with such past liabilities are enforced against the properties of the textile undertakings whose management is taken over, the entire Act will become infructuous. In this context if we look at section 3(7), it provides that any liability incurred by a textile company before the appointed day shall not be enforced against the Central Government or the Custodian. The Custodian is defined under section 2(b) as "the person appointed under section 4 to take over the management of the undertakings". When, therefore, there is a prohibition against the enforcement of prior liabilities against the Custodian, it is a prohibition against the enforcement of such liabilities against a person who is in custody of assets and properties of the textile undertaking as described if section 3(2) read with section 4. There is no question of the Custodian being personally liable or being protected against any personal liabilities in such a situation. In fact, the Custodian may be a company incorporated under the Companies Act, 1956 as the petitioners are, in the present case. Therefore, this prohibition must be considered as a prohibition against enforcement of such prior liabilities against the assets and properties of the textile undertakings which are in the hands of the Custodian under the provisions of the said Act. The contention, therefore, that the prior liabilities of the workmen incurred before the appointed day can be enforced in execution against the properties and assets of the textile undertaking in charge of the Custodian under the said Act, must be rejected.
### Response:
0
### Explanation:
petitioner, therefore, is liable to reinstate the twocase dealt with some employees of that part of the state of M.P. which subsequently became a part of the State of Bombay under the State Reorganisation Act. 1956. These employees had been dismissed from service prior to the State Reorganisation Act, 1956. Coming into effect. They had, however, challenged their dismissal as wrongful and had claimed reinstatement. After the State Reorganisation Act came into force, they sought to implead the State of Bombay also as a party to these proceedings. This was resisted by the State of Bombay. The Division Bench granted the application of some of these petitioner s to implead the State of Bombay as a party to these proceedings. At paragraph 24 of the judgement, however, the Division Bench has observed that even assuming that each of the orders of dismissal were made in contravention of the provisions of Art. 311(2) of the Constitution, it was an order made by the authority which had jurisdiction to pass such an order. Hence the order of dismissal cannot be termed as non est or just a piece of paper. It is contended by the petitioners on the basis of this judgment that there were orders of dismissal which could not be treated as non est at the time when they took over the management. Hence these employees cannot continue in service of the petitioner after the appointed day. In our view, reliance placed by the petitioner s on this decision of the Bombay High Court is unwarranted. In the first place, the Division Bench was not required to consider whether the dismissal of employees was non est or not . The only question before the Division Bench was whether the State of Bombay should be impleaded as a party to the proceedings challenging the dismissal order. Secondly, in the case before the Division Bench there were no orders of reinstatement. The only orders which were then in existence were orders of dismissal. In the case before us there is an order of reinstatement passed in proceedings to which the petitioners were a party. These orders of reinstatement are valid and binding. As a result of these orders of reinstatement, it is the order of dismissal which is not non est. In fact, this is what the Supreme Court has observed in the case of The Workmen v. The Bharat Coking Coal Ltd. (supra) A.I.R 1978 S.C. 979. Therefore, the decision in the case of W.W.Joshi v. State of Bombay, reported in A.I.R. 1959 Bom. 363 (at Nagpur) and the observations in para 24 of the judgment, have no application to the presentthat case under the Sick Textile Undertakings (Nationalisation) Act, 1974 the mill vested in the Government after its management was taken over. The Court said that the liability of the former owner for provident fund contribution and administration charges is not wiped off. This has no relevance to the case before us because the liability had clearly accrued prior to the appointed day.The submission, though prima facie attractive, has to be examined in the context of the scheme of the entire Act. In the first place, as the preamble shows, the taking over of the management of textile undertakings is for the purpose of ensuring that the undertakings are properly rehabilitated, the interest of workmen employed is protected and the production and distribution of textiles is not affected. For this purpose, the management of the textile undertakings is taken over so that additional investment of a very large amount can be pumped into these undertakings to make them viable. With this end in view, section 3 of the Act ensures that all the properties and assets of the textile undertakings are taken charge of by the Central Government or the Custodian, as the case may be. In fact, section 3(6) provides that even when a receiver is appointed or any third person isof such assets pursuant to any judgement, decree or order of a court or tribunal or the authority, even such a person who may be in lawful custody of assets, is required to hand over these assets to the Custodian irrespective of the claims which other creditors may have against such assets.The scheme of the Act, therefore, appears to be that the undertakings whose management is taken over are not to be hampered by any past liabilities which may have been incurred. If decrees and orders or awards which have been obtained in connection with such past liabilities are enforced against the properties of the textile undertakings whose management is taken over, the entire Act will become infructuous. In this context if we look at section 3(7), it provides that any liability incurred by a textile company before the appointed day shall not be enforced against the Central Government or the Custodian. The Custodian is defined under section 2(b) as "the person appointed under section 4 to take over the management of the undertakings". When, therefore, there is a prohibition against the enforcement of prior liabilities against the Custodian, it is a prohibition against the enforcement of such liabilities against a person who is in custody of assets and properties of the textile undertaking as described if section 3(2) read with section 4. There is no question of the Custodian being personally liable or being protected against any personal liabilities in such a situation. In fact, the Custodian may be a company incorporated under the Companies Act, 1956 as the petitioners are, in the present case. Therefore, this prohibition must be considered as a prohibition against enforcement of such prior liabilities against the assets and properties of the textile undertakings which are in the hands of the Custodian under the provisions of the said Act. The contention, therefore, that the prior liabilities of the workmen incurred before the appointed day can be enforced in execution against the properties and assets of the textile undertaking in charge of the Custodian under the said Act, must be rejected.
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MANJULA & ORS Vs. SHYAMSUNDAR & ORS | 1. This appeal is directed against the judgment and decree in R.F.A. No. 468 of 2004 dated 07.09.2006 whereby the High Court of Karnataka has dismissed the appeal filed by the appellants. 2. The appellants were the plaintiffs in O.S. No. 1/2002 on the file of the Principal Sessions Judge, Dharwad, and the respondents were the defendants. The plaintiffs filed a petition under Section 278 of the Indian Succession Act, 1925 praying for issuance of a letter of administration in respect of the Will dated 19.12.1976 executed by one Srinivas Gambhir. Since the defendants challenged the execution of the Will, the said petition was registered as a suit. Srinivas Gambhir died on 24.12.1983. According to the plaintiffs, at the time of his death, he left the aforesaid Will in the custody of the scribe of the Will. They have further contended that by the said Will, deceased-Srinivas Gambhir bequeathed his undivided share in the suit scheduled property in favour of the plaintiffs. On the basis of this Will, the plaintiffs claim title to the said property. 3. The defendants are the brother and sisters of Srinivas Gambhir. They have denied execution of the said Will in their written statement. They have also contended that Srinivas Gambhir was an idiot/lunatic in the care and custody of his mother-Indirabai and was incompetent to execute a Will. The competency of Srinivas Gambhir to execute the Will has already been decided by a judgment and decree passed by the High Court in R.F.A. NO.582/1987 dated 8/11.01.1988. 4. On the basis of the pleadings of the parties, the trial court framed the following issues: (1) Whether Plaintiffs prove that deceased Srinivas S/o Gururao Gambhir had executed a Will dated 19.12.1976 on his own bequeathed his undivided share in the properties, detailed in the Plaint annexed? (2) Whether the Plaintiffs further prove that deceased was in sound state of mind at the time of execution of the Will? (3) Whether defendants prove that the suit WILL is concocted, created and fabricated one? (4) Whether there is cause of action in the suit? (5) Whether the Court fee paid is correct? (6) What decree or Order? 5. On appreciation of the oral and documentary evidence on the record, the trial court dismissed the suit by a judgment and decree dated 27.11.2003. The plaintiffs challenged the said judgment and decree before the High Court of Karnataka. As noticed above, the High Court has dismissed the appeal, thereby confirming the judgment and decree of the trial court. 6. We have heard the learned counsel for the parties and also perused the judgment and decree passed by the High Court. 7. As noticed above, the trial court had framed as many as six issues. The appeal before the High Court involved questions of law and facts. However, the High Court, without examination any of these aspects save for the medical evidence at Exhibit D-4, has dismissed the appeal by a cryptic order. The High Court has not adverted to any of the contentions of the parties. The High Court has also not appreciated the oral evidence adduced by the parties. 8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment. 9. In the instant case, the High Court has not complied with any of the aforesaid requirements. In view of the above, we are of the considered opinion that the High Court has to re-consider the matter in the light of the observations made above. | 1[ds]It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.9. In the instant case, the High Court has not complied with any of the aforesaid requirements. In view of the above, we are of the considered opinion that the High Court has to re-consider the matter in the light of the observations made above. | 1 | 914 | 195 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
1. This appeal is directed against the judgment and decree in R.F.A. No. 468 of 2004 dated 07.09.2006 whereby the High Court of Karnataka has dismissed the appeal filed by the appellants. 2. The appellants were the plaintiffs in O.S. No. 1/2002 on the file of the Principal Sessions Judge, Dharwad, and the respondents were the defendants. The plaintiffs filed a petition under Section 278 of the Indian Succession Act, 1925 praying for issuance of a letter of administration in respect of the Will dated 19.12.1976 executed by one Srinivas Gambhir. Since the defendants challenged the execution of the Will, the said petition was registered as a suit. Srinivas Gambhir died on 24.12.1983. According to the plaintiffs, at the time of his death, he left the aforesaid Will in the custody of the scribe of the Will. They have further contended that by the said Will, deceased-Srinivas Gambhir bequeathed his undivided share in the suit scheduled property in favour of the plaintiffs. On the basis of this Will, the plaintiffs claim title to the said property. 3. The defendants are the brother and sisters of Srinivas Gambhir. They have denied execution of the said Will in their written statement. They have also contended that Srinivas Gambhir was an idiot/lunatic in the care and custody of his mother-Indirabai and was incompetent to execute a Will. The competency of Srinivas Gambhir to execute the Will has already been decided by a judgment and decree passed by the High Court in R.F.A. NO.582/1987 dated 8/11.01.1988. 4. On the basis of the pleadings of the parties, the trial court framed the following issues: (1) Whether Plaintiffs prove that deceased Srinivas S/o Gururao Gambhir had executed a Will dated 19.12.1976 on his own bequeathed his undivided share in the properties, detailed in the Plaint annexed? (2) Whether the Plaintiffs further prove that deceased was in sound state of mind at the time of execution of the Will? (3) Whether defendants prove that the suit WILL is concocted, created and fabricated one? (4) Whether there is cause of action in the suit? (5) Whether the Court fee paid is correct? (6) What decree or Order? 5. On appreciation of the oral and documentary evidence on the record, the trial court dismissed the suit by a judgment and decree dated 27.11.2003. The plaintiffs challenged the said judgment and decree before the High Court of Karnataka. As noticed above, the High Court has dismissed the appeal, thereby confirming the judgment and decree of the trial court. 6. We have heard the learned counsel for the parties and also perused the judgment and decree passed by the High Court. 7. As noticed above, the trial court had framed as many as six issues. The appeal before the High Court involved questions of law and facts. However, the High Court, without examination any of these aspects save for the medical evidence at Exhibit D-4, has dismissed the appeal by a cryptic order. The High Court has not adverted to any of the contentions of the parties. The High Court has also not appreciated the oral evidence adduced by the parties. 8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment. 9. In the instant case, the High Court has not complied with any of the aforesaid requirements. In view of the above, we are of the considered opinion that the High Court has to re-consider the matter in the light of the observations made above.
### Response:
1
### Explanation:
It is settled law that an appeal is a continuation of the original proceedings. The appellate courts jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the courts findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.9. In the instant case, the High Court has not complied with any of the aforesaid requirements. In view of the above, we are of the considered opinion that the High Court has to re-consider the matter in the light of the observations made above.
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State of Uttar Pradesh Vs. Mohd. Sharif (Dead) Through L.Rs | 1. There is no substance in the appeal which has been preferred by the State of U.P. against the judgment and decree, dated 25th November, 1969 of the High Court Allahabad in Second Appeal No. 2226 of 1969.2. The plaintiff Mohd. Sharif (since deceased) was working as a Head Constable of the Daksiti guard at P. S. Kakwan, District, Kanpur. On 22nd January, 1955 he was served with a charge-sheet under S.7 of the Police Act calling upon him to submit his explanation thereto; he submitted the explanation on the following day. After holding the departmental disciplinary inquiry against him the inquiry officer submitted his report which was accepted and ultimately he was dismissed from service by an order dated 3rd June, 1955. After departmental appeal and revision to higher authorities failed, the plaintiff filed a suit challenging his dismissal on the ground that the said order was illegal and void as no proper inquiry was held against him and no reasonable opportunity was given to him to defend himself against the charges framed against him and for recovery of arrears of salary. The trial Court dismissed the suit. In Civil Appeal No. 478 of 1962 preferred by him the learned Second Addl. civil Judge, Kanpur reversed the trial Courts findings and decreed his suit holding that the charge-sheet framed against him was vague, that the plaintiff was prejudiced in his defence and was not given a reasonable opportunity to defend himself during the inquiry. The appeal Court set aside the dismissal by declaring the same to be illegal and void but the matter was remanded back in respect of the relief pertaining to salary, etc. The State preferred a second appeal and the High Court has confirmed the decree passed by the appeal Court and dismissed the second appeal. The State of U.P. has come up in appeal to this court.3. After hearing counsel appearing for the State we are satisfied that both the appeal Court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly in the charge-sheet that was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government forest situated in P.C. Thatiay District Farukhabad and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were those particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiffs was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary inquiry had preceded the disciplinary inquiry and during the preliminary inquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary inquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary inquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary inquiry, it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence. Having regard to the aforesaid admitted position it is difficult to accept the contention urged by the counsel for the appellant that the view taken by the trial Court should be accepted by us. | 0[ds]3. After hearing counsel appearing for the State we are satisfied that both the appeal Court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly in thethat was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government forest situated in P.C. Thatiay District Farukhabad and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were those particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiffs was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary inquiry had preceded the disciplinary inquiry and during the preliminary inquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary inquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary inquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary inquiry, it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence. | 0 | 693 | 320 | ### 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:
1. There is no substance in the appeal which has been preferred by the State of U.P. against the judgment and decree, dated 25th November, 1969 of the High Court Allahabad in Second Appeal No. 2226 of 1969.2. The plaintiff Mohd. Sharif (since deceased) was working as a Head Constable of the Daksiti guard at P. S. Kakwan, District, Kanpur. On 22nd January, 1955 he was served with a charge-sheet under S.7 of the Police Act calling upon him to submit his explanation thereto; he submitted the explanation on the following day. After holding the departmental disciplinary inquiry against him the inquiry officer submitted his report which was accepted and ultimately he was dismissed from service by an order dated 3rd June, 1955. After departmental appeal and revision to higher authorities failed, the plaintiff filed a suit challenging his dismissal on the ground that the said order was illegal and void as no proper inquiry was held against him and no reasonable opportunity was given to him to defend himself against the charges framed against him and for recovery of arrears of salary. The trial Court dismissed the suit. In Civil Appeal No. 478 of 1962 preferred by him the learned Second Addl. civil Judge, Kanpur reversed the trial Courts findings and decreed his suit holding that the charge-sheet framed against him was vague, that the plaintiff was prejudiced in his defence and was not given a reasonable opportunity to defend himself during the inquiry. The appeal Court set aside the dismissal by declaring the same to be illegal and void but the matter was remanded back in respect of the relief pertaining to salary, etc. The State preferred a second appeal and the High Court has confirmed the decree passed by the appeal Court and dismissed the second appeal. The State of U.P. has come up in appeal to this court.3. After hearing counsel appearing for the State we are satisfied that both the appeal Court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly in the charge-sheet that was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government forest situated in P.C. Thatiay District Farukhabad and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were those particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiffs was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary inquiry had preceded the disciplinary inquiry and during the preliminary inquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary inquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary inquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary inquiry, it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence. Having regard to the aforesaid admitted position it is difficult to accept the contention urged by the counsel for the appellant that the view taken by the trial Court should be accepted by us.
### Response:
0
### Explanation:
3. After hearing counsel appearing for the State we are satisfied that both the appeal Court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly in thethat was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government forest situated in P.C. Thatiay District Farukhabad and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were those particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiffs was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary inquiry had preceded the disciplinary inquiry and during the preliminary inquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary inquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary inquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary inquiry, it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence.
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Assistant Collector Of Central Excise,Calcutta Division Vs. National Tobacco Co. Of India Ltd | Collector, in the circumstances of the case, was not certain about the rule under which the notice could fall. But, as was pointed out by this Court in Sanjanas case (supra), the failure to specify the provision under which a notice is sent would not invalidate it if the power to issue such a notice was there.28. The notice alleges that it is a case of "incomplete assessment". The allegations contained in it have been characterised by the learned counsel for the Company as a change of front intended to cover up the neglect of the Collector in failing to comply with he correct procedure of making either an assessment before delivery contemplated by R. 52 or a provisional assessment under Rule 10 B. We are unable to hold, either upon the findings given by the High Court upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error inadvertence of the Collector in making a levy or an assessment.29. We may point out that R. 10 itself has been amended and made more reasonable in 1969 so as to require a quasi-judicial procedure by serving a show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owners account current, if any". This amendment, made on 11-10-1969, indicates that the quasi-judicial procedure, for a finding on an alleged inadvertence, error, collusion, or mis-construction by an officer, or mis-statement by the assessee, as the cause of an alleged short levy resulting from an assessment can now be embarked upon and not necessarily completed within the prescribed period. We are, however, concerned with the procedure before this amendment took place. At that time, it was certainly not clear whether a case would fall under Rule 10 even before the short levy or its cause was established. Furthermore, in the present case, the reason for an alleged short-levy could be a change of basis of proposed assessment under instructions from higher authorities mentioned above. Even that change of basis was held by the High Court to be erroneous. Until the High Court indicated the correct basis there was an uncertainty about it. Such a ground for an alleged short levy would be analogous to the reason for the introduction of Rule 10-A itself which, as pointed out in N. R. Sanjanas case, AIR 1971 SC 2039 (supra), was a change in the law. One could go back still further and come to the conclusion that the real reason for the alleged short levy was a failure of the Company to supply the fuller information it used to supply previously and not just a mis-statement. If the case does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless. The two rules have to be read together.30. It is true that Rule 10-A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. If, however, it is read in conjunction with Section 4 of the Act, we think that a quasi-judicial proceeding, in the circumstances of such a case, could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law (Fifth Edition) p. 105.31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of Section 4 of the Act read with Rule 10-A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning an applicability of Rule 10A. The High Courts view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: " Expressio unius est exclusio alterius ." But, as was pointed out by Wills, J., in Colquhoun v. Brooks,(1888) 21 QBD 52 at p. 62, this maxim "is often a valuable servant, but a dangerous master...". The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes as assessment obligatory before good are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no "assessment", as it is understood in law, took place at all. On the other hand,. Rule 10A indicates that there are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee. A case like the one before us falls more properly within the residuary class of unforeseen cases. We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. No Writs of Prohibition or Mandamus were, therefore, called for in the circumstances of the case. | 1[ds]9. We order directing provisional assessment, contemplated by Rule(applicable at the relevant time) has been placed before us. Nor was the Company asked by the Collector to furnish a bond to pay up the difference after making a final assessment as was required under Rulet was, however, contended for the Collector that the execution of a bond, for the satisfaction of the Collector, could be dispensed with in a case where the Company kept a large sum of money in deposit in the "personal ledger account" to guarantee its ability to meet its liabilities. It was also pointed out that the learned Single Judge as well as the Division Bench had found that the practice of provisionally approving thed by the Company, pending acceptance of their correctness after due verification, had been established as a matter of fact. It was submitted that this was substantially a "provisional assessment" covered by Ruleh it may not conform to the technical procedural requirements of such an assessment.Even if the making of debit entries could, on the facts of the case, be held to be merely provisional we think that what took place could not be held to be a "provisional assessment" within the provisions of Rule 10B which contemplated the making of an order directing such an "assessment" after applying the mind to the need for it.11. Before proceeding further we will deal with the question whetherthe Division Bench correctly refused to permit an argument that the impugned notice ofl under Rule10A. The ground given for this refusal was that such a case was neither taken before the learned single Judge nor could be found in the grounds of appeal despite the fact that the appellant had ample opportunity of amending its. memorandum of appeal. The appellant has, however, relied on a previous intimation given to the counsel for the respondent that such a contention would be advanced at the hearing of the appeal and also on an application datedpraying for permission to add the alternative ground that the impugned notice. We think that this refusal was erroneous for several reasons. Firstly, the Company having come to Court for a Writ of Prohibition on the ground that the impugned notice was issued without jurisdiction had necessarily to establish the case, which is set up in paragraph 25 of its Writ Petition, that the notice was not authorised by the rules including Rulethe notice ofwas followed onby a correction by another notice of certain statements both the notices were assailed in paragraph 25the applicability of Rulewas very much in issue. Secondly, we find, from the Judgment of the learned Single Judge that, as the burden lay upon the petitioning Company to demonstrate, for obtaining a Writ of Prohibition, that the impugned notice was not authorised by any rule, its counsel had contended, inter alia, that the notice did notle 10A. Thequestion was thus considered by the learned Single Judge. Thirdly, the question whether the Collector did or did not have the power to issue the impugned notice under or with the aid of Rule10A was aquestion of law and of jurisdiction, going to the root of the case, which could be decided without taking further evidence. Indeed, as the burden was upon the petitioning Company to show that the impugned notice was issued without jurisdiction, a finding that the notice did not fall even within R.was necessary before a Writ of Prohibition could issue at all. We think that the Division Bench ought to have permitted the question to be argued subject to giving due opportunity to the petitioning Company to meet it on such terms as the Court thought fit, even if the point was not taken in the grounds of appeal.It will be noticed that in Chapter III, the term "assessment" was used only in the former rulecorresponding to the present Rulewhile dealing with provisional assessment of duty. But, Rule 52 shows that an "assessment" is obligatory before every removal of manufactured goods. The rules, however, neither specify the kind of notice which should precede assessment nor lay down the need to pass an assessment order. All we can say is that rules of natural justice have to be observed for, as was held by this Court in K. T. M. Nair v. State of Kerala, 1961(3) SCR 77 at p. 94 = (AIR 1961 SC 552 ) "the assessment of a tax on person or property is at least of ae Division Bench, while repelling this contention, heldthe present case, it appears that the procedure adopted was that the respondents issued a price list quarterly. In that price list, they gave their owner and gave estimate as to the value of the goods. For the time being, the excise authorities accepted the value so gave a provisional certificate to that effect, intending to check the market value and then finally determine the value and then finally determine the value later on. The procedure for issuing price list of approving the same provisionally and accepting payment therefore according to the estimate of the manufacturer, is a procedure which is not to be found either in the Act or the Rules".It may be observed that this finding, that the procedure of a provisional acceptance of the Companys estimates was adopted, seems inconsistent with another finding that what took place was a final adjustment of accounts within the purview of the 3rd proviso to Rule 9, set out above, constituting a "levy" according to law. The Division Bench appears to have regarded this procedure of an almost mechanical levy as equivalent to a complete assessment followed by the payment of the tax which constituted a valid "levy". Hence, it concluded that, there being a legally recognised levy, the only procedure open to the Collector for questioning its correctness was one contemplated by R. 10 so that a demand for a short levy had to be made within 3 months of the final "settlement of accounts" as provided specifically by Rule 10. The Division Bench considered this procedure to be an alternative to an assessment under Rule 52 at the proper time and also to a provisional assessment in accordance with the procedure laid down in RuleBut to regard the procedure under Rule 10 as an alternative to an assessment would be to overlook that it presupposes an assessment which could be reopened on specified grounds only within the period given there.20. The term "levy" appears to us to be wider in its import than the term "assessment". It may include both the "imposition" of a tax as well as assessment. the term "imposition" is generally used for the levy of a tax or duty by legislative provisions indicating the subject matter of the tax and the rates at which it has to be taxed. The term "assessment", on the other hand, is generally used in this country for the actual procedure adopted in fixing the liability to pay a tax on account of particular goods or property or whatever may be the object of the tax in a particular case and determining its amount. The Division Bench appeared to equate "levy" with an "assessment" as well as with the collection of a tax when it held that "when the payment of tax is enforced, there is a levy". We think that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does not seem to us to extend to "collection". Article 265 of the Constitution makes a distinction between "levy" and "collection". We also find that in N. R. Sanjana v. The Elphinstone Spg. and Wvg. Mills Co. Ltd., AIR 1971 SC 2039 at p. 2045 this Court made a distinction between "levy" and collection" as used in the Act and the Rules before us.We are, therefore, unable to accept the view that merely because the "account current", kept under the third proviso (erroneously mentioned as second proviso by the Division Bench) to Rule 9, indicated that the accounting had taken place, there was necessarily a legally valid or complete levy. The making of debit entries was only a mode of collection of the tax. Even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final. It could only be clothed or invested with validity after carrying out the obligation to make an assessment to justify it. Moreover, it is the process of assessment that really determines whether the levy is short or complete. It is not a factual or presumed levy which could, in a disputed case, prove an "assessment". This has to be done by proof of the actual steps taken which constitute "assessment".22. Undoubtedly, a mechanical adjustment and ostensible settlement of accounts, by making debit entries, was gone through in the case before us. But, we could not equate such an adjustment with an assessment, aprocess which involves due application of mind to the facts as well as to the requirements of law, unless we were bound by law to give such an unusual interpretation to the term "assessment". Here, we do not find any such definition of assessment or any compelling reason to hold that what could at most be a mechanical provisional collection, which would become a "levy" in the eye of the law only after an "assessment", was itself a levy or an assessment.This finding was presumably given to show that the impugned notice fell within the purview of R. 10 because the demand was due to a short levy caused by "inadvertence" of the officer concerned. It will be noticed that the Division Bench did not go beyond finding a "possibility" of such in advertence. This is not finding that it was definitely due to it. No finding which could clearly relate the case to any cause for short levy found in Rule 10 was given. Moreover, we find that there was no case taken up by the Company in its petition before the High Court that any short levy resulted for an inadvertence of the officer concerned in the process of assessment. The case set up was that of a levy after a completed assessment. in accordance with law, which could not, according to the Company, be reopened. If, therefore, as we find from the conclusions recorded by the High Court itself, what took place was not an "assessment" at all in the eye of law, which could not be reopened outside the provisions of Rule 10, we think that the case will fall beyond Rule 10 as it stood at the relevantThe notice set out above does not purport to be issued under any particular rule probably because the Collector, in the circumstances of the case, was not certain about the rule under which the notice could fall. But, as was pointed out by this Court in Sanjanas case (supra), the failure to specify the provision under which a notice is sent would not invalidate it if the power to issue such a notice was there.28. The notice alleges that it is a case of "incomplete assessment". The allegations contained in it have been characterised by the learned counsel for the Company as a change of front intended to cover up the neglect of the Collector in failing to comply with he correct procedure of making either an assessment before delivery contemplated by R. 52 or a provisional assessment under Rule 10 B. We are unable to hold, either upon the findings given by the High Court upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error inadvertence of the Collector in making a levy or an assessment.29. We may point out that R. 10 itself has been amended and made more reasonable in 1969 so as to require aprocedure by serving a show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owners account current, if any". This amendment, made onindicates that theprocedure, for a finding on an alleged inadvertence, error, collusion, orby an officer, orby the assessee, as the cause of an alleged short levy resulting from an assessment can now be embarked upon and not necessarily completed within the prescribed period. We are, however, concerned with the procedure before this amendment took place. At that time, it was certainly not clear whether a case wouldunder Rule 10even before the short levy or its cause was established. Furthermore, in the present case, the reason for an allegedcould be a change of basis of proposed assessment under instructions from higher authorities mentioned above. Even that change of basis was held by the High Court to be erroneous. Until the High Court indicated the correct basis there was an uncertainty about it. Such a ground for an alleged short levy would be analogous to the reason for the introduction of Ruleitself which, as pointed out in N. R. Sanjanas case, AIR 1971 SC 2039 (supra), was a change in the law. One could go back still further and come to the conclusion that the real reason for the alleged short levy was a failure of the Company to supply the fuller information it used to supply previously and not just aIf the case does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless. The two rules have to be read together.30. It is true that Ruleseems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by aprocedure. If, however, it is read in conjunction with Section 4 of the Act, we think that aproceeding, in the circumstances of such a case, could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law (Fifth Edition) p. 105.31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of Section 4 of the Act read with Rule10A of theCentral Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning an applicability ofHigh Courts view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: " Expressio unius est exclusio alterius ." But, as was pointed out by Wills, J., in Colquhoun v. Brooks,(1888) 21 QBD 52 at p. 62, this maxim "is often a valuable servant, but a dangerous master...". The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes as assessment obligatory before good are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no "assessment", as it is understood in law, took place at all. On the other hand,. Rule 10Are are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee. A case like the one before us falls more properly within the residuary class of unforeseen cases. We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. No Writs of Prohibition or Mandamus were, therefore, called for in the circumstances of the case. | 1 | 7,888 | 3,070 | ### Instruction:
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Collector, in the circumstances of the case, was not certain about the rule under which the notice could fall. But, as was pointed out by this Court in Sanjanas case (supra), the failure to specify the provision under which a notice is sent would not invalidate it if the power to issue such a notice was there.28. The notice alleges that it is a case of "incomplete assessment". The allegations contained in it have been characterised by the learned counsel for the Company as a change of front intended to cover up the neglect of the Collector in failing to comply with he correct procedure of making either an assessment before delivery contemplated by R. 52 or a provisional assessment under Rule 10 B. We are unable to hold, either upon the findings given by the High Court upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error inadvertence of the Collector in making a levy or an assessment.29. We may point out that R. 10 itself has been amended and made more reasonable in 1969 so as to require a quasi-judicial procedure by serving a show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owners account current, if any". This amendment, made on 11-10-1969, indicates that the quasi-judicial procedure, for a finding on an alleged inadvertence, error, collusion, or mis-construction by an officer, or mis-statement by the assessee, as the cause of an alleged short levy resulting from an assessment can now be embarked upon and not necessarily completed within the prescribed period. We are, however, concerned with the procedure before this amendment took place. At that time, it was certainly not clear whether a case would fall under Rule 10 even before the short levy or its cause was established. Furthermore, in the present case, the reason for an alleged short-levy could be a change of basis of proposed assessment under instructions from higher authorities mentioned above. Even that change of basis was held by the High Court to be erroneous. Until the High Court indicated the correct basis there was an uncertainty about it. Such a ground for an alleged short levy would be analogous to the reason for the introduction of Rule 10-A itself which, as pointed out in N. R. Sanjanas case, AIR 1971 SC 2039 (supra), was a change in the law. One could go back still further and come to the conclusion that the real reason for the alleged short levy was a failure of the Company to supply the fuller information it used to supply previously and not just a mis-statement. If the case does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless. The two rules have to be read together.30. It is true that Rule 10-A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. If, however, it is read in conjunction with Section 4 of the Act, we think that a quasi-judicial proceeding, in the circumstances of such a case, could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law (Fifth Edition) p. 105.31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of Section 4 of the Act read with Rule 10-A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning an applicability of Rule 10A. The High Courts view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: " Expressio unius est exclusio alterius ." But, as was pointed out by Wills, J., in Colquhoun v. Brooks,(1888) 21 QBD 52 at p. 62, this maxim "is often a valuable servant, but a dangerous master...". The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes as assessment obligatory before good are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no "assessment", as it is understood in law, took place at all. On the other hand,. Rule 10A indicates that there are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee. A case like the one before us falls more properly within the residuary class of unforeseen cases. We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. No Writs of Prohibition or Mandamus were, therefore, called for in the circumstances of the case.
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think that the case will fall beyond Rule 10 as it stood at the relevantThe notice set out above does not purport to be issued under any particular rule probably because the Collector, in the circumstances of the case, was not certain about the rule under which the notice could fall. But, as was pointed out by this Court in Sanjanas case (supra), the failure to specify the provision under which a notice is sent would not invalidate it if the power to issue such a notice was there.28. The notice alleges that it is a case of "incomplete assessment". The allegations contained in it have been characterised by the learned counsel for the Company as a change of front intended to cover up the neglect of the Collector in failing to comply with he correct procedure of making either an assessment before delivery contemplated by R. 52 or a provisional assessment under Rule 10 B. We are unable to hold, either upon the findings given by the High Court upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error inadvertence of the Collector in making a levy or an assessment.29. We may point out that R. 10 itself has been amended and made more reasonable in 1969 so as to require aprocedure by serving a show cause notice "within 3 months from the date on which the duty or charge was paid or adjusted in the owners account current, if any". This amendment, made onindicates that theprocedure, for a finding on an alleged inadvertence, error, collusion, orby an officer, orby the assessee, as the cause of an alleged short levy resulting from an assessment can now be embarked upon and not necessarily completed within the prescribed period. We are, however, concerned with the procedure before this amendment took place. At that time, it was certainly not clear whether a case wouldunder Rule 10even before the short levy or its cause was established. Furthermore, in the present case, the reason for an allegedcould be a change of basis of proposed assessment under instructions from higher authorities mentioned above. Even that change of basis was held by the High Court to be erroneous. Until the High Court indicated the correct basis there was an uncertainty about it. Such a ground for an alleged short levy would be analogous to the reason for the introduction of Ruleitself which, as pointed out in N. R. Sanjanas case, AIR 1971 SC 2039 (supra), was a change in the law. One could go back still further and come to the conclusion that the real reason for the alleged short levy was a failure of the Company to supply the fuller information it used to supply previously and not just aIf the case does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless. The two rules have to be read together.30. It is true that Ruleseems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by aprocedure. If, however, it is read in conjunction with Section 4 of the Act, we think that aproceeding, in the circumstances of such a case, could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law (Fifth Edition) p. 105.31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of Section 4 of the Act read with Rule10A of theCentral Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning an applicability ofHigh Courts view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: " Expressio unius est exclusio alterius ." But, as was pointed out by Wills, J., in Colquhoun v. Brooks,(1888) 21 QBD 52 at p. 62, this maxim "is often a valuable servant, but a dangerous master...". The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes as assessment obligatory before good are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, has specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no "assessment", as it is understood in law, took place at all. On the other hand,. Rule 10Are are residuary powers of making a demand in special circumstances not foreseen by the framers of the Act or the rules. If the assessee disputes the correctness of the demand an assessment becomes necessary to protect the interests of the assessee. A case like the one before us falls more properly within the residuary class of unforeseen cases. We think that, from the provisions of Section 4 of the Act read with Rule 10A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. No Writs of Prohibition or Mandamus were, therefore, called for in the circumstances of the case.
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Pandit Ishwardas Vs. State of Madhya Pradesh and Others | Pramukh of the State of Madhya Bharat. The contention was negatived by the Additional District Judge, Dewas and by the High Court on appeal. The High Court held that the agreement had been ratified by the Raj Pramukh and had also been acted upon by the parties. The Government was, therefore, entitled to enforce the same. The decision of the Additional District Judge, Dewas, was rendered on December 6, 1958 and the High Court affirmed the decision on May 3, 1963.3. The learned counsel for the appellant submitted that the bar of res judicata did not apply since the parties to the two litigations were not the same, the subject-matter was different and the plea of ratification by the Raj Pramukh was not raised in the present suit. It was also contended that the judgment of the Dewas Court and the High Court in the suit were non est as the Court had no jurisdiction to upheld a contract which was hit by the provisions of Article 299 of the Constitution. It was also argued that the High Court should not have permitted the respondent to raise the plea of res judicata at the appellate stage since that plea could not be decided without receiving additional evidence, namely the judgment in the other litigation.4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the court. There is no basis for this assumption.5. There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable party to raise a new plea. All that is necessary is that the appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.6. In the present case the written statement of the Government was filed in the trial Court long before the Dewas Court decided the other case. The judgment of the trial Court was however rendered after the decision by the Dewas Court in the other case but it had been explained by the Government that no amendment of the written statement was sought in the trial Court because an appeal was pending in the High Court of Madhya Pradesh against the decision in the Dewas suit. Amendment of the written statement was sought very soon after the High Court affirmed the decision of the Dewas Court. The explanation of the Government for not seeking the amendment earlier was accepted by the High Court and we are unable to see any ground for interfering with the discretion exercised by the appellate Court.7. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also impleaded as parties whereas in the other suit some other parson was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that the subject-matters of the two suits were different because the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Government and the surety bond executed by plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected.8. The learned counsel for the appellant sought to raise the plea that the surety bond had been discharged under the provisions of Sections 135 and 139 of the Indian Contract Act. As already noticed by us this plea was not pursued before the High Court and we see no jurisdiction for permitting the appellant to raise the question once again.9. | 0[ds]4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the court. There is no basis for this assumption.In the present case the written statement of the Government was filed in the trial Court long before the Dewas Court decided the other case. The judgment of the trial Court was however rendered after the decision by the Dewas Court in the other case but it had been explained by the Government that no amendment of the written statement was sought in the trial Court because an appeal was pending in the High Court of Madhya Pradesh against the decision in the Dewas suit. Amendment of the written statement was sought very soon after the High Court affirmed the decision of the Dewas Court. The explanation of the Government for not seeking the amendment earlier was accepted by the High Court and we are unable to see any ground for interfering with the discretion exercised by the appellate Court.7. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also impleaded as parties whereas in the other suit some other parson was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that theof the two suits were different because the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Government and the surety bond executed by plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected.8. The learned counsel for the appellant sought to raise the plea that the surety bond had been discharged under the provisions of Sections 135 and 139 of the Indian Contract Act. As already noticed by us this plea was not pursued before the High Court and we see no jurisdiction for permitting the appellant to raise the question once again. | 0 | 1,651 | 670 | ### 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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Pramukh of the State of Madhya Bharat. The contention was negatived by the Additional District Judge, Dewas and by the High Court on appeal. The High Court held that the agreement had been ratified by the Raj Pramukh and had also been acted upon by the parties. The Government was, therefore, entitled to enforce the same. The decision of the Additional District Judge, Dewas, was rendered on December 6, 1958 and the High Court affirmed the decision on May 3, 1963.3. The learned counsel for the appellant submitted that the bar of res judicata did not apply since the parties to the two litigations were not the same, the subject-matter was different and the plea of ratification by the Raj Pramukh was not raised in the present suit. It was also contended that the judgment of the Dewas Court and the High Court in the suit were non est as the Court had no jurisdiction to upheld a contract which was hit by the provisions of Article 299 of the Constitution. It was also argued that the High Court should not have permitted the respondent to raise the plea of res judicata at the appellate stage since that plea could not be decided without receiving additional evidence, namely the judgment in the other litigation.4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the court. There is no basis for this assumption.5. There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable party to raise a new plea. All that is necessary is that the appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.6. In the present case the written statement of the Government was filed in the trial Court long before the Dewas Court decided the other case. The judgment of the trial Court was however rendered after the decision by the Dewas Court in the other case but it had been explained by the Government that no amendment of the written statement was sought in the trial Court because an appeal was pending in the High Court of Madhya Pradesh against the decision in the Dewas suit. Amendment of the written statement was sought very soon after the High Court affirmed the decision of the Dewas Court. The explanation of the Government for not seeking the amendment earlier was accepted by the High Court and we are unable to see any ground for interfering with the discretion exercised by the appellate Court.7. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also impleaded as parties whereas in the other suit some other parson was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that the subject-matters of the two suits were different because the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Government and the surety bond executed by plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected.8. The learned counsel for the appellant sought to raise the plea that the surety bond had been discharged under the provisions of Sections 135 and 139 of the Indian Contract Act. As already noticed by us this plea was not pursued before the High Court and we see no jurisdiction for permitting the appellant to raise the question once again.9.
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4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the court. There is no basis for this assumption.In the present case the written statement of the Government was filed in the trial Court long before the Dewas Court decided the other case. The judgment of the trial Court was however rendered after the decision by the Dewas Court in the other case but it had been explained by the Government that no amendment of the written statement was sought in the trial Court because an appeal was pending in the High Court of Madhya Pradesh against the decision in the Dewas suit. Amendment of the written statement was sought very soon after the High Court affirmed the decision of the Dewas Court. The explanation of the Government for not seeking the amendment earlier was accepted by the High Court and we are unable to see any ground for interfering with the discretion exercised by the appellate Court.7. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also impleaded as parties whereas in the other suit some other parson was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that theof the two suits were different because the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Government and the surety bond executed by plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected.8. The learned counsel for the appellant sought to raise the plea that the surety bond had been discharged under the provisions of Sections 135 and 139 of the Indian Contract Act. As already noticed by us this plea was not pursued before the High Court and we see no jurisdiction for permitting the appellant to raise the question once again.
|
Rameshbhai Chandubhai Rathod Vs. State of Gujarat | is only this approach that can keep imposition of death sentence within the `rarest of the rare cases. 95. The expression `rarest of rare cases is not to be read as a mere play on words or a tautologous expression. 96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with. It is pregnant with respect for the inviolability of human life. That is why the word `rare has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a `cry for justice. 97. I now propose rely on a few decisions to show how this expression `rarest of rare case has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it. 98. In the case of Chaman Vs. Stae of NCT- (2001) 2 SCC 28 , the Court after finding the commission of crime held that a girl of 1 and = years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the `rarest of rare case. 99. In the case of Bantu @ Naresh Giri Vs. State of Uttar Pradesh- AIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence. 100. In Surendra Pal Singh Vs. State of Gujarat- (2005) 3 SCC 127 , a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment. 101. In Amrit Singh Vs. State of Punjab- AIR 2002 SC 132 , the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it. 102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground. 103. In the case of Kulwinder Singh Vs. State of Punjab- AIR 2007 SC 2868 , Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases. 104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the charge-sheet. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him. 105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in "Commonsense about Crime and Punishment, page 175". Those matchless words of Sir Winston Churchill are as under:- "The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accused - and even of the convicted - criminal against the State; a constant heart-searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it". | 0[ds]69. From the records, it does not appear that adequate and effective hearing was given to the accused by the trial court on the aforesaid basis before imposing the death sentence on him. It appears that the Additional Sessions Judge, 9th Fast Track Court, Gujarat returned a finding of guilt of the present appellant on 18.5.2005 and on that day itself allegedly heard the appellant on the sentence and imposed death sentence on that day. Unfortunately that is not the purpose of Section 235(2) of the Code70. Section 235(2) as interpreted by this Court in Bachan Singh (supra), and quoted above, provides for a `bifurcated trial. It gives the accused (i) a right ofe hearing, on which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual. In view of the mitigating circumstances endorsed in Bachan Singh (supra) the State must prove, by adducing evidence, that accused does not satisfy clause (3) and (4) of the circumstances mentioned in paragraph 204 (page 944 of the report) as those mitigating circumstances were accepted in para 205 (page 944 of the report) in Bachan Singh (supra)71. Here prosecution has not discharged any burden at all for less the burden referred to above. This is a statutory obligation which is cast on the Court in a case where both Sections 235(2) read with Section 354(3) apply in view of the law laid down in Bachan Singh (supra). The mandate of Article 141 of the Constitution cannot be ignored either by the trial Court or the High Court72. Therefore, regardless of whether the accused asks for such a hearing, the same must be offered to the accused and an adequate opportunity for bringing materials on record must be given to him especially in case where Section 354(3) comes into play. It is only after undertaking that exercise that `special reasons for imposing death penalty can be recorded by the Court73. In the order imposing death sentence, the learned trial Judge has not even once referred to Section 354(3) of the Code. Therefore, the imposing of death sentence by the learned trial Court is wholly illegal and contrary to the provisions of the Code of Criminal Procedure and contrary to the law laid down by this Court in Bachan Singh (supra)75. Relying on the principles laid down in Bachan Singh in Allauddin Mian Vs. State of Bihar(1989) 3 SCC 5 , the Supreme Court deprecated the practice of the trial Court which, after recording the finding of guilt and before the accused could "absorb and overcome the shock of conviction" asked the accused to say on the question of sentence. In the instant case, the same procedure was adopted as pointed out in Para 67 herein above. The learned Judges held that by doing so the purpose of Section 235(2) is not served79. In Arshad v. State of Karnataka(1994) 4 SCC 383, this Court through Justice Anand (as his Lordship was then) again deplored the practice of proving guilt and sentencing on the same day. In that case, both was done on2 itself and by a cryptic order. This Court held that the objective for which Section 235(2) was brought into the Code was completely ignored by the Session Judge and the Learned Judge disapproved the sentencing procedure in a cryptic manner. It was held that it exposes the lack of sensitiveness on the part of the Court in dealing with such cases. (Para 17, pg. 389 of report)80. The High Court, unfortunately as the first appellate Court, both on facts and in law, has confirmed the death sentence without pointing out these glaring illegalities in sentencing procedure of the trial Court and especially in a case where a death penalty has been imposed82. Unfortunately in this case High Court failed to correct the flawed sentencing procedure followed by the trial Court and erred in law by confirming the death sentence which led to an obvious miscarriage of justice83. The challenge to the constitutionality of death sentence was repelled in Bachan Singh (supra) only in view of the legislative safeguards given in the sentencing policy in the aforesaid provisions of Sections 235(2) and 354(3) of the Code. The Court has held that such procedure "cannot, by any reckoning, be said to be unfair, unreasonable and unjust" (para 167, page 937)84. Thus, it appears that this Court upheld the constitutionality of death penalty on the aforesaid doctrine of `due process which has been introduced in our constitutional jurisprudence in the case of Smt. Maneka Gandhi Vs. Union of India and anotherAIR 1978 SC 597 85. By repeatedly referring to the dicta in Maneka Gandhi (supra), the majority judgment in Bachan Singh (supra) upheld the vires of the provisions of Indian Penal Code on death penalty in view of the reasonable, fair and just procedures which are provided in the sentencing policy by those Sections in the Criminal Procedure Code (paras 135 and 136, page 930 of the report)86. Similarly in Furman V. Georgia408 U.S. 238 (1972), U.S. Supreme Court impliedly overruled its earlier decision in McGautha V. California402 U.S. 183, 196 (1971). In this context it may be mentioned that in nine separate opinions the learned Judges struck down in Furman Vs. Georgia by a majority of, the death penalty statutes at issue as cruel and unusual in view of the denial of the `due process guaranteed by the Fourteenth Amendment87. Learned Judges in Furman observed that the sentencing policy was not properly structured and, therefore, it causes denial of Fundamental Rights88. The Supreme Court in Bachan Singh (supra) also insisted on the importance of structured sentencing policy in death sentence cases to uphold its validity and held that structured sentencing policy has been achieved in view of the aforesaid two provisions, namely, Section 354(3) and Section 235(2) of the Code89. Therefore fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomized in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of "procedure established by law" within the meaning of Article 21 of the Constitution90. Thus, a strict compliance with those provisions in the way it was interpreted in Bachan Singh (supra) having regard to the development of constitutional law by this Court, is a must before death sentence can be imposed91. While I fully share my learned Brothers anxiety about the expectation of society to the adequacy of the sentence to the nature of the crime, at the same time, we cannot be oblivious of the person who is alleged to have committed the crime and his rights under a fair and structured sentencing policy. This Court laid down in Bachan Singh (supra) that before imposing death sentence, an abiding concern for the dignity of human life must be shown by Court92. We must recognize that `cry for justice is not answered by frequent awarding of death sentence on a purported faith on `deterrence creed. Before choosing the option for death sentence, the Court must consciously eschew its tendency of `retributive ruthlessness93. In Bachan Singh (supra), the majority opinion warned in paragraph 125, page 927:"that Judges should not take upon themselves the responsibility of becoming oracles or spokemen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned94. Therefore, this Court cannot afford to prioritise the sentiments of outrage about the nature of the crimes committed over the requirement to carefully consider whether the person committing the crime is a threat to the society. The Court must consider whether there is a possibility of reform or rehabilitation of the man committing the crime and which must be at the heart of the sentencing process. It is only this approach that can keep imposition of death sentence within the `rarest of the rare cases95. The expression `rarest of rare cases is not to be read as a mere play on words or a tautologous expression96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with. It is pregnant with respect for the inviolability of human life. That is why the word `rare has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a `cry for justice97. I now propose rely on a few decisions to show how this expression `rarest of rare case has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it98. In the case of Chaman Vs. Stae of NCT(2001) 2 SCC 28 , the Court after finding the commission of crime held that a girl of 1 and = years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the `rarest of rare case99. In the case of Bantu @ Naresh Giri Vs. State of Uttar PradeshAIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence100. In Surendra Pal Singh Vs. State of Gujarat(2005) 3 SCC 127 , a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment101. In Amrit Singh Vs. State of PunjabAIR 2002 SC 132 , the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground103. In the case of Kulwinder Singh Vs. State of PunjabAIR 2007 SC 2868 , Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in "Commonsense about Crime and Punishment, page 175". Those matchless words of Sir Winston Churchill are as under:"The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accusedand even of the convictedcriminal against the State; a constantg by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure thep strength of a nation, and are sign and proof of the living virtue in it". | 0 | 18,561 | 2,636 | ### 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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is only this approach that can keep imposition of death sentence within the `rarest of the rare cases. 95. The expression `rarest of rare cases is not to be read as a mere play on words or a tautologous expression. 96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with. It is pregnant with respect for the inviolability of human life. That is why the word `rare has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a `cry for justice. 97. I now propose rely on a few decisions to show how this expression `rarest of rare case has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it. 98. In the case of Chaman Vs. Stae of NCT- (2001) 2 SCC 28 , the Court after finding the commission of crime held that a girl of 1 and = years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the `rarest of rare case. 99. In the case of Bantu @ Naresh Giri Vs. State of Uttar Pradesh- AIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence. 100. In Surendra Pal Singh Vs. State of Gujarat- (2005) 3 SCC 127 , a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment. 101. In Amrit Singh Vs. State of Punjab- AIR 2002 SC 132 , the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it. 102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground. 103. In the case of Kulwinder Singh Vs. State of Punjab- AIR 2007 SC 2868 , Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases. 104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the charge-sheet. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him. 105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in "Commonsense about Crime and Punishment, page 175". Those matchless words of Sir Winston Churchill are as under:- "The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accused - and even of the convicted - criminal against the State; a constant heart-searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it".
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a possibility of reform or rehabilitation of the man committing the crime and which must be at the heart of the sentencing process. It is only this approach that can keep imposition of death sentence within the `rarest of the rare cases95. The expression `rarest of rare cases is not to be read as a mere play on words or a tautologous expression96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with. It is pregnant with respect for the inviolability of human life. That is why the word `rare has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a `cry for justice97. I now propose rely on a few decisions to show how this expression `rarest of rare case has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it98. In the case of Chaman Vs. Stae of NCT(2001) 2 SCC 28 , the Court after finding the commission of crime held that a girl of 1 and = years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the `rarest of rare case99. In the case of Bantu @ Naresh Giri Vs. State of Uttar PradeshAIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence100. In Surendra Pal Singh Vs. State of Gujarat(2005) 3 SCC 127 , a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment101. In Amrit Singh Vs. State of PunjabAIR 2002 SC 132 , the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground103. In the case of Kulwinder Singh Vs. State of PunjabAIR 2007 SC 2868 , Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in "Commonsense about Crime and Punishment, page 175". Those matchless words of Sir Winston Churchill are as under:"The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accusedand even of the convictedcriminal against the State; a constantg by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure thep strength of a nation, and are sign and proof of the living virtue in it".
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Shri Lal Mahal Ltd Vs. Progetto Grano Spa | of Appeal recorded its finding as follows: “The SGS India certificate shows that an inspection took place at the suppliers godowns inland, and representative samples taken. Sealed samples were inspected lotwise and the cargo meeting the contractual specifications was allowed to be bagged for dispatch to Kandla.Continuous supervision of loading into the vessel was also carried out at the port. The samples drawn periodically were reduced and composite samples were sealed; one sealed sample of each lot was handed over to the supplier, one sealed sample of each lot was analysed by SGS and the remaining samples were retained by SGS for a period of three months unless and until instructions to the contrary were given.The analysis section of the certificate states that “The above samples have been analysed and the weighted average Pre-shipment and Shipment results are as under:We find that this procedure was not in conformity with the requirements of the Contract, which required the result to be of an average sample taken at port of loading, not the weighted average of pre-shipment and shipment samples. Accordingly the certificate is uncontractual and its results are not final. In consequence the Board is obliged to evaluate all the evidence presented, including the evidence of the uncontractual SGS India certificate to decide whether or not the goods were of the contractual description, i.e. Durum wheat Indian origin.” (Emphasis supplied by us) 41. Thus, having held that SGS India was the contractual agency, the Board of Appeal further held that the sellers failed to establish that the SGS India certificate was in contractual form. Two fundamental flaws in the certification by SGS India were noted by the Board of Appeal, one, SGS India’s certification did not follow the contractual specified mode of sampling and the other, the analysis done by SGS India was doubtful. The Board of Appeal then sifted the documentary evidence let in by the parties and finally concluded that wheat loaded on the vessel Haci Resit Kalkavan was soft wheat and the sellers were in breach of the description condition of the contract.42. It is pertinent to state that the sellers had challenged the award (no. 3782) passed by the Board of Appeal in the High Court of Justice at London. The three decisions; (i) Agroexport5 by Queen’s Bench Division, (ii) Toepfer6 by Court of Appeal, and (iii) Gill & Duffus7 by House of Lords, were holding the field at the time of consideration of sellers’ appeal by the High Court of Justice at London. In Agroexport5 , it has been held that an award founded on evidence of analysis made other than in accordance with contract terms cannot stand and deserves to be set aside as evidence relied upon was inadmissible. The Court of Appeal in Toepfer6 has laid down that where seller and buyer have agreed that a certificate at loading as to the quality of goods shall be final and binding on them, the buyer will be precluded from recovering damages from the seller, even if, the person giving the certificate has been negligent in making it. Toepfer6 has been approved by the House of Lords in Gill & Duffus7. The High Court of Justice at London can be assumed to have full knowledge of the legal position exposited in Agroexport5 , Toepfer6 and Gill & Duffus7 yet it found no ground or justification for setting aside the award (no. 3782) passed by the Board of Appeal. If a ground supported by the decisions of that country was not good enough for setting aside the award by the court competent to do so, a fortiori, such ground can hardly be a good ground for refusing enforcement of the award. Accordingly, we are not persuaded to accept the submission of Mr. Rohinton F. Nariman that Delhi High Court ought to have refused to enforce the foreign awards as the Board of Appeal has wrongly rejected the certificate of quality obtained from the buyers’ nominated certifying agency and taken into consideration inadmissible evidence in the nature of certificates obtained by the buyers’ for the purposes of forwarding contract.43. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a ‘second look’ at the foreign award in the award - enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.44. In what we have discussed above, even if it be assumed that the Board of Appeal erred in relying upon the report obtained by buyers from Crepin which was inconsistent with the terms on which the parties had contracted in the contract dated 12.05.1994 and wrongly rejected the report of the contractual agency, in our view, such errors would not bar the enforceability of the appeal awards passed by the Board of Appeal. 45. While considering the enforceability of foreign awards, the court does not exercise appellate jurisdiction over the foreign award nor does it enquire as to whether, while rendering foreign award, some error has been committed. Under Section 48(2)(b) the enforcement of a foreign award can be refused only if such enforcement is found to be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The objections raised by the appellant do not fall in any of these categories and, therefore, the foreign awards cannot be held to be contrary to public policy of India as contemplated under Section 48(2)(b).46. The contention of the learned senior counsel for the appellant that the Board of Appeal dealt with the questions not referred to it and which were never in dispute and, therefore, these awards cannot be enforced being contrary to Section 48(1)(c) is devoid of any substance and is noted to be rejected. 47. | 0[ds]25. In our view, what has been stated by this Court in Renusagar3 with reference to Section 7(1)(b)(ii) of the Foreign Awards Act must equally apply to the ambit and scope of Section 48(2)(b) of the 1996 Act. In Renusagar3 it has been expressly exposited that the expressionin Section 7(1)(b)(ii) of the Foreign Awards Act refers to the public policy of India. The expressioned in Section 7(1)(b)(ii) was held to meanA distinction in the rule of public policy between a matter governed by the domestic law and a matter involving conflict of laws has been noticed in Renusagar3. For all this there is no reason why Renusagar3 should not apply as regards the scope of inquiry under Section 48(2)(b). Following Renusagar3, we think that for the purposes of Section 48(2)(b), the expressionmust be given narrow meaning and the enforcement of foreign award would be refused on the ground that it is contrary to public policy of India if it is covered by one of the three categories enumerated in Renusagar3. Although the same expression ‘public policy ofis used both in Section 34(2(b)(ii) and Section 48(2)(b) and the concept of ‘public policy inis same in nature in both the Sections but, in our view, its application differs in degree insofar as these two Sections are concerned. The application of ‘public policy ofdoctrine for the purposes of Section 48(2)(b) is more limited than the application of the same expression in respect of the domestic arbitral award.26. We are not persuaded to accept the submission of Mr. Rohinton F. Nariman that the expressionin Section 48(2)(b) is an expression of wider import than thein Section 7(1)(b)(ii) of the Foreign Awards Act. We have no hesitation in holding that Renusagar3 must apply for the purposes of Section 48(2)(b) of the 1996 Act. Insofar as the proceeding for setting aside an award under Section 34 is concerned, the principles laid down in Saw Pipes1 would govern the scope of such proceedings.27. We accordingly hold that enforcement of foreign award would be refused under Section 48(2)(b) only if such enforcement would be contrary to (i) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expressionoccurring in Section 34(2)(b)(ii) in Saw Pipes1 is not applicable where objection is raised to the enforcement of the foreign award under Section 48(2)(b).28. It is true that in Phulchand Exports2 , a two-Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) accepted the submission made on behalf of the appellant therein that the meaning given to the expressionin Section 34 in Saw Pipes1 must be applied to the same expression occurring in Section 48(2)(b) of the 1996 Act. However, in what we have discussed above it must be held that the statement in paragraph 16 of the Report that the expressionpolicy of India used in Section 48(2)(b) has to be given a wider meaning and the award could be set aside, if it is patentlydoes not lay down correct law and is overruled.Thus, having held that SGS India was the contractual agency, theal further held that the sellers failed to establish that the SGS India certificate was in contractual form. Two fundamental flaws in the certification by SGS India were noted by thel, one, SGScertification did not follow the contractual specified mode of sampling and the other, the analysis done by SGS India was doubtful. Theal then sifted the documentary evidence let in by the parties and finally concluded that wheat loaded on the vessel Haci Resit Kalkavan was soft wheat and the sellers were in breach of the description condition of the contract.42. It is pertinent to state that the sellers had challenged the award (no. 3782) passed by theof Appeal inthe High Court of Justice at London. The three decisions; (i) Agroexport5 byBench Division, (ii) Toepfer6 by Court of Appeal, and (iii) Gill & Duffus7 by House of Lords, were holding the field at the time of consideration ofappeal by the High Court of Justice at London. In Agroexport5 , it has been held that an award founded on evidence of analysis made other than in accordance with contract terms cannot stand and deserves to be set aside as evidence relied upon was inadmissible. The Courtof Appeal inToepfer6 has laid down that where seller and buyer have agreed that a certificate at loading as to the quality of goods shall be final and binding on them, the buyer will be precluded from recovering damages from the seller, even if, the person giving the certificate has been negligent in making it. Toepfer6 has been approved by the House of Lords in Gill & Duffus7. The High Court of Justice at London can be assumed to have full knowledge of the legal position exposited in Agroexport5 , Toepfer6 and Gill & Duffus7 yet it found no ground or justification for setting aside the award (no. 3782) passed by thel. If a ground supported by the decisions of that country was not good enough for setting aside the award by the court competent to do so, a fortiori, such ground can hardly be a good ground for refusing enforcement of the award. Accordingly, we are not persuaded to accept the submission of Mr. Rohinton F. Nariman that Delhi High Court ought to have refused to enforce the foreign awards as theal has wrongly rejected the certificate of quality obtained from thenominated certifying agency and taken into consideration inadmissible evidence in the nature of certificates obtained by thefor the purposes of forwarding contract.43. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a ‘secondat the foreign award in the award - enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.44. In what we have discussed above, even if it be assumed that theal erred in relying upon the report obtained by buyers from Crepin which was inconsistent with the terms on which the parties had contracted in the contract dated 12.05.1994 and wrongly rejected the report of the contractual agency, in our view, such errors would not bar the enforceability of the appeal awards passed by the5. While considering the enforceability of foreign awards, the court does not exercise appellate jurisdiction over the foreign award nor does it enquire as to whether, while rendering foreign award, some error has been committed. Under Section 48(2)(b) the enforcement of a foreign award can be refused only if such enforcement is found to be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The objections raised by the appellant do not fall in any of these categories and, therefore, the foreign awards cannot be held to be contrary to public policy of India as contemplated under Section 48(2)(b).46. The contention of the learned senior counsel for the appellant that theal dealt with the questions not referred to it and which were never in dispute and, therefore, these awards cannot be enforced being contrary to Section 48(1)(c) is devoid of any substance and is noted to be rejected. | 0 | 9,700 | 1,484 | ### Instruction:
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of Appeal recorded its finding as follows: “The SGS India certificate shows that an inspection took place at the suppliers godowns inland, and representative samples taken. Sealed samples were inspected lotwise and the cargo meeting the contractual specifications was allowed to be bagged for dispatch to Kandla.Continuous supervision of loading into the vessel was also carried out at the port. The samples drawn periodically were reduced and composite samples were sealed; one sealed sample of each lot was handed over to the supplier, one sealed sample of each lot was analysed by SGS and the remaining samples were retained by SGS for a period of three months unless and until instructions to the contrary were given.The analysis section of the certificate states that “The above samples have been analysed and the weighted average Pre-shipment and Shipment results are as under:We find that this procedure was not in conformity with the requirements of the Contract, which required the result to be of an average sample taken at port of loading, not the weighted average of pre-shipment and shipment samples. Accordingly the certificate is uncontractual and its results are not final. In consequence the Board is obliged to evaluate all the evidence presented, including the evidence of the uncontractual SGS India certificate to decide whether or not the goods were of the contractual description, i.e. Durum wheat Indian origin.” (Emphasis supplied by us) 41. Thus, having held that SGS India was the contractual agency, the Board of Appeal further held that the sellers failed to establish that the SGS India certificate was in contractual form. Two fundamental flaws in the certification by SGS India were noted by the Board of Appeal, one, SGS India’s certification did not follow the contractual specified mode of sampling and the other, the analysis done by SGS India was doubtful. The Board of Appeal then sifted the documentary evidence let in by the parties and finally concluded that wheat loaded on the vessel Haci Resit Kalkavan was soft wheat and the sellers were in breach of the description condition of the contract.42. It is pertinent to state that the sellers had challenged the award (no. 3782) passed by the Board of Appeal in the High Court of Justice at London. The three decisions; (i) Agroexport5 by Queen’s Bench Division, (ii) Toepfer6 by Court of Appeal, and (iii) Gill & Duffus7 by House of Lords, were holding the field at the time of consideration of sellers’ appeal by the High Court of Justice at London. In Agroexport5 , it has been held that an award founded on evidence of analysis made other than in accordance with contract terms cannot stand and deserves to be set aside as evidence relied upon was inadmissible. The Court of Appeal in Toepfer6 has laid down that where seller and buyer have agreed that a certificate at loading as to the quality of goods shall be final and binding on them, the buyer will be precluded from recovering damages from the seller, even if, the person giving the certificate has been negligent in making it. Toepfer6 has been approved by the House of Lords in Gill & Duffus7. The High Court of Justice at London can be assumed to have full knowledge of the legal position exposited in Agroexport5 , Toepfer6 and Gill & Duffus7 yet it found no ground or justification for setting aside the award (no. 3782) passed by the Board of Appeal. If a ground supported by the decisions of that country was not good enough for setting aside the award by the court competent to do so, a fortiori, such ground can hardly be a good ground for refusing enforcement of the award. Accordingly, we are not persuaded to accept the submission of Mr. Rohinton F. Nariman that Delhi High Court ought to have refused to enforce the foreign awards as the Board of Appeal has wrongly rejected the certificate of quality obtained from the buyers’ nominated certifying agency and taken into consideration inadmissible evidence in the nature of certificates obtained by the buyers’ for the purposes of forwarding contract.43. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a ‘second look’ at the foreign award in the award - enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.44. In what we have discussed above, even if it be assumed that the Board of Appeal erred in relying upon the report obtained by buyers from Crepin which was inconsistent with the terms on which the parties had contracted in the contract dated 12.05.1994 and wrongly rejected the report of the contractual agency, in our view, such errors would not bar the enforceability of the appeal awards passed by the Board of Appeal. 45. While considering the enforceability of foreign awards, the court does not exercise appellate jurisdiction over the foreign award nor does it enquire as to whether, while rendering foreign award, some error has been committed. Under Section 48(2)(b) the enforcement of a foreign award can be refused only if such enforcement is found to be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The objections raised by the appellant do not fall in any of these categories and, therefore, the foreign awards cannot be held to be contrary to public policy of India as contemplated under Section 48(2)(b).46. The contention of the learned senior counsel for the appellant that the Board of Appeal dealt with the questions not referred to it and which were never in dispute and, therefore, these awards cannot be enforced being contrary to Section 48(1)(c) is devoid of any substance and is noted to be rejected. 47.
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application of the same expression in respect of the domestic arbitral award.26. We are not persuaded to accept the submission of Mr. Rohinton F. Nariman that the expressionin Section 48(2)(b) is an expression of wider import than thein Section 7(1)(b)(ii) of the Foreign Awards Act. We have no hesitation in holding that Renusagar3 must apply for the purposes of Section 48(2)(b) of the 1996 Act. Insofar as the proceeding for setting aside an award under Section 34 is concerned, the principles laid down in Saw Pipes1 would govern the scope of such proceedings.27. We accordingly hold that enforcement of foreign award would be refused under Section 48(2)(b) only if such enforcement would be contrary to (i) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expressionoccurring in Section 34(2)(b)(ii) in Saw Pipes1 is not applicable where objection is raised to the enforcement of the foreign award under Section 48(2)(b).28. It is true that in Phulchand Exports2 , a two-Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) accepted the submission made on behalf of the appellant therein that the meaning given to the expressionin Section 34 in Saw Pipes1 must be applied to the same expression occurring in Section 48(2)(b) of the 1996 Act. However, in what we have discussed above it must be held that the statement in paragraph 16 of the Report that the expressionpolicy of India used in Section 48(2)(b) has to be given a wider meaning and the award could be set aside, if it is patentlydoes not lay down correct law and is overruled.Thus, having held that SGS India was the contractual agency, theal further held that the sellers failed to establish that the SGS India certificate was in contractual form. Two fundamental flaws in the certification by SGS India were noted by thel, one, SGScertification did not follow the contractual specified mode of sampling and the other, the analysis done by SGS India was doubtful. Theal then sifted the documentary evidence let in by the parties and finally concluded that wheat loaded on the vessel Haci Resit Kalkavan was soft wheat and the sellers were in breach of the description condition of the contract.42. It is pertinent to state that the sellers had challenged the award (no. 3782) passed by theof Appeal inthe High Court of Justice at London. The three decisions; (i) Agroexport5 byBench Division, (ii) Toepfer6 by Court of Appeal, and (iii) Gill & Duffus7 by House of Lords, were holding the field at the time of consideration ofappeal by the High Court of Justice at London. In Agroexport5 , it has been held that an award founded on evidence of analysis made other than in accordance with contract terms cannot stand and deserves to be set aside as evidence relied upon was inadmissible. The Courtof Appeal inToepfer6 has laid down that where seller and buyer have agreed that a certificate at loading as to the quality of goods shall be final and binding on them, the buyer will be precluded from recovering damages from the seller, even if, the person giving the certificate has been negligent in making it. Toepfer6 has been approved by the House of Lords in Gill & Duffus7. The High Court of Justice at London can be assumed to have full knowledge of the legal position exposited in Agroexport5 , Toepfer6 and Gill & Duffus7 yet it found no ground or justification for setting aside the award (no. 3782) passed by thel. If a ground supported by the decisions of that country was not good enough for setting aside the award by the court competent to do so, a fortiori, such ground can hardly be a good ground for refusing enforcement of the award. Accordingly, we are not persuaded to accept the submission of Mr. Rohinton F. Nariman that Delhi High Court ought to have refused to enforce the foreign awards as theal has wrongly rejected the certificate of quality obtained from thenominated certifying agency and taken into consideration inadmissible evidence in the nature of certificates obtained by thefor the purposes of forwarding contract.43. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a ‘secondat the foreign award in the award - enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.44. In what we have discussed above, even if it be assumed that theal erred in relying upon the report obtained by buyers from Crepin which was inconsistent with the terms on which the parties had contracted in the contract dated 12.05.1994 and wrongly rejected the report of the contractual agency, in our view, such errors would not bar the enforceability of the appeal awards passed by the5. While considering the enforceability of foreign awards, the court does not exercise appellate jurisdiction over the foreign award nor does it enquire as to whether, while rendering foreign award, some error has been committed. Under Section 48(2)(b) the enforcement of a foreign award can be refused only if such enforcement is found to be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The objections raised by the appellant do not fall in any of these categories and, therefore, the foreign awards cannot be held to be contrary to public policy of India as contemplated under Section 48(2)(b).46. The contention of the learned senior counsel for the appellant that theal dealt with the questions not referred to it and which were never in dispute and, therefore, these awards cannot be enforced being contrary to Section 48(1)(c) is devoid of any substance and is noted to be rejected.
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Controller of Estate-Duty, Bihar Vs. Mahant Umesh Narain Puri | or character thereof. It may, in this connection, be noted that it is not known under what circumstances any of the properties came to be disposed of by the deceased Mahant. There is no sale deed on record and no sale deed was made available to the High Court or to this court. The true nature and the character of the properties have to be determined on a proper interpretation of the Firman. In our opinion, the High Court in the instant case has correctly come to the conclusion that the properties belonged to the Math and are trust properties, relying on the Firman and the judgment of the district judge in the civil suitThe next contention urged by Mr. Manchanda is that even assuming that the properties were trust properties, the deceased had a beneficial life interest in the properties and the beneficial interest of the deceased Mahant must be deemed to have passed on to the next disciple or issue or Farzand by virtue of the provisions contained in s. 7 of the Act12. This argument has no merit. Section 6 and s. 7 of the Act are in the following terms" 6. Property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death7. (1) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceases eat to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law(2) If a member of a Hindu coparcenary governed by the Mitakshara School of Law dies, then the provisions of sub-section (1) shall apply with respect to the interest of the deceased in the coparcenary property only(a) if the deceased had completed his eighteenth year at the time of his death, or(b) where he had not completed his eighteenth year at the time of his death, if his father or other male ascendant in the male line was not coparcener of the same family at the time of his deathExplanation.-Where the deceased was also a member of a sub-coparcenary (within the coparcenary) possessing separate property of its own, the provisions of this sub-section shall have effect separately in respect of the coparcenary and the sub-coparcenary(3) If a member of any tarwad or tavazhi , governed by the Marumakkattayam rule of inheritance or a member of a kutumba or kavaru governed by the Aliyasantana rule of inheritance dies, then the provisions of sub-section (1) shall not apply with respect to the interest of the deceased in the property of the tarwad, tavazhi, kutumba or kavaru, as the case may be, unless the deceased had completed his eighteenth year(4) The provisions of sub-section (1) shall not apply to the property in which the deceased or any other person had an interest only as a holder of an office or recipient of the benefits of a charity, or as a corporation soleExplanation.-For the removal of doubts, it is hereby declared that the holder of a Sthanam is neither the holder of an office nor a corporation sole within the meaning of this sub-section."13. On a consideration of the facts and circumstances of this case including the Firman and the judgment of the district judge, the High Court has correctly come to the conclusion that the Mahant had no property which he was competent to dispose of and the only interest the Mahant had was common enjoyment of the trust properties of the Math, with the disciples of the Math. The deceased Mahant had no particular or specific beneficial interest in the property and no benefit would accrue or arise to any one by the cesser of the interest of common enjoyment of the property by the deceased Mahant to any other person, as the deceased Mahant had no property at the time of his death which he was competent to dispose of and no benefit accrued or arose to the Mahant who came to be elected as Mahant according to custom on the demise of the Mahant or to any other disciple of the Math on the death of the Mahant. No interest, therefore, could be deemed to have passed on the death of the Mahant14. Section 2(16) of the Act provides" Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death"15. In the instant case, the interest of the Mahant who is elected to be the incharge of the property and who is in enjoyment of the property in common with the disciples of the Math comes to an end on his death and his interest of enjoyment in common with other disciples, whatever may be the nature of such interest, does not pass at any point of time to any other person, After the death of the Mahant duly elected, the right to be the in-charge of the property vests in the person who is thereafter elected as Mahant and the right of the deceased Mahant to enjoy the property in common with the other disciples of the Math completely ceases and does not pass to anybody else. In the instant case, therefore, no interest of the Mahant passes to anybody else and the provisions of the Act are, therefore, not attractedWe are, therefore, of the opinion that the High Court in the instant case was right in its answer to the question referred to it. The appeal against the judgment in the Tax Reference, therefore, fails. The appeal from the orders in the writ petition, therefore, necessarily fails. The appeals are hereby dismissed. | 0[ds]We are not impressed by this argument of the learned counsel. It is true that in the absence of a specific question raised with regard to the correctness of any finding of fact, the High Court in a reference is not to interfere with the finding of fact by the Tribunal and the High Court has to proceed to answer the question on the facts found by the Tribunal. The finding of the CBR in the instant case that the properties are the personal properties of the deceased Mahant cannot, in the facts and circumstances of this case, be considered to be a finding of fact. The CBR in coming to its conclusion that the properties were the personal properties of the deceased Mahant had considered the nature of the grant by the Firman and also the judgment of the district judge in the title suit. The conclusion of the Board of Revenue that the properties are the personal properties of the Mahant on an interpretation of the grant and on a consideration of the judgment of the district judge is not a pure finding of fact. Any conclusion as to the true character or nature of the properties on the interpretation of the Firman and on taking into consideration the judgment of the district judge in the title suit is a finding on a mixed question of law and fact. The mere fact that the deceased Mahant had disposed of some of the properties does not in any way materially affect the question of consideration of the true nature and character of the properties and does not, in any way, affect the true nature or character thereof. It may, in this connection, be noted that it is not known under what circumstances any of the properties came to be disposed of by the deceased Mahant. There is no sale deed on record and no sale deed was made available to the High Court or to this court. The true nature and the character of the properties have to be determined on a proper interpretation of the Firman. In our opinion, the High Court in the instant case has correctly come to the conclusion that the properties belonged to the Math and are trust properties, relying on the Firman and the judgment of the district judge in the civil suitThe next contention urged by Mr. Manchanda is that even assuming that the properties were trust properties, the deceased had a beneficial life interest in the properties and the beneficial interest of the deceased Mahant must be deemed to have passed on to the next disciple or issue or Farzand by virtue of the provisions contained in s. 7 of theOn a consideration of the facts and circumstances of this case including the Firman and the judgment of the district judge, the High Court has correctly come to the conclusion that the Mahant had no property which he was competent to dispose of and the only interest the Mahant had was common enjoyment of the trust properties of the Math, with the disciples of the Math. The deceased Mahant had no particular or specific beneficial interest in the property and no benefit would accrue or arise to any one by the cesser of the interest of common enjoyment of the property by the deceased Mahant to any other person, as the deceased Mahant had no property at the time of his death which he was competent to dispose of and no benefit accrued or arose to the Mahant who came to be elected as Mahant according to custom on the demise of the Mahant or to any other disciple of the Math on the death of the Mahant. No interest, therefore, could be deemed to have passed on the death of the Mahant14. Section 2(16) of the Act provides" Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death"15. In the instant case, the interest of the Mahant who is elected to be the incharge of the property and who is in enjoyment of the property in common with the disciples of the Math comes to an end on his death and his interest of enjoyment in common with other disciples, whatever may be the nature of such interest, does not pass at any point of time to any other person, After the death of the Mahant duly elected, the right to be theincharge of the propertyvests in the person who is thereafter elected as Mahant and the right of the deceased Mahant to enjoy the property in common with the other disciples of the Math completely ceases and does not pass to anybody else. In the instant case, therefore, no interest of the Mahant passes to anybody else and the provisions of the Act are, therefore, not attractedWe are, therefore, of the opinion that the High Court in the instant case was right in its answer to the question referred to it. The appeal against the judgment in the Tax Reference, therefore, fails. The appeal from the orders in the writ petition, therefore, necessarily fails. The appeals are hereby dismissed. | 0 | 2,922 | 948 | ### 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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or character thereof. It may, in this connection, be noted that it is not known under what circumstances any of the properties came to be disposed of by the deceased Mahant. There is no sale deed on record and no sale deed was made available to the High Court or to this court. The true nature and the character of the properties have to be determined on a proper interpretation of the Firman. In our opinion, the High Court in the instant case has correctly come to the conclusion that the properties belonged to the Math and are trust properties, relying on the Firman and the judgment of the district judge in the civil suitThe next contention urged by Mr. Manchanda is that even assuming that the properties were trust properties, the deceased had a beneficial life interest in the properties and the beneficial interest of the deceased Mahant must be deemed to have passed on to the next disciple or issue or Farzand by virtue of the provisions contained in s. 7 of the Act12. This argument has no merit. Section 6 and s. 7 of the Act are in the following terms" 6. Property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death7. (1) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceases eat to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law(2) If a member of a Hindu coparcenary governed by the Mitakshara School of Law dies, then the provisions of sub-section (1) shall apply with respect to the interest of the deceased in the coparcenary property only(a) if the deceased had completed his eighteenth year at the time of his death, or(b) where he had not completed his eighteenth year at the time of his death, if his father or other male ascendant in the male line was not coparcener of the same family at the time of his deathExplanation.-Where the deceased was also a member of a sub-coparcenary (within the coparcenary) possessing separate property of its own, the provisions of this sub-section shall have effect separately in respect of the coparcenary and the sub-coparcenary(3) If a member of any tarwad or tavazhi , governed by the Marumakkattayam rule of inheritance or a member of a kutumba or kavaru governed by the Aliyasantana rule of inheritance dies, then the provisions of sub-section (1) shall not apply with respect to the interest of the deceased in the property of the tarwad, tavazhi, kutumba or kavaru, as the case may be, unless the deceased had completed his eighteenth year(4) The provisions of sub-section (1) shall not apply to the property in which the deceased or any other person had an interest only as a holder of an office or recipient of the benefits of a charity, or as a corporation soleExplanation.-For the removal of doubts, it is hereby declared that the holder of a Sthanam is neither the holder of an office nor a corporation sole within the meaning of this sub-section."13. On a consideration of the facts and circumstances of this case including the Firman and the judgment of the district judge, the High Court has correctly come to the conclusion that the Mahant had no property which he was competent to dispose of and the only interest the Mahant had was common enjoyment of the trust properties of the Math, with the disciples of the Math. The deceased Mahant had no particular or specific beneficial interest in the property and no benefit would accrue or arise to any one by the cesser of the interest of common enjoyment of the property by the deceased Mahant to any other person, as the deceased Mahant had no property at the time of his death which he was competent to dispose of and no benefit accrued or arose to the Mahant who came to be elected as Mahant according to custom on the demise of the Mahant or to any other disciple of the Math on the death of the Mahant. No interest, therefore, could be deemed to have passed on the death of the Mahant14. Section 2(16) of the Act provides" Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death"15. In the instant case, the interest of the Mahant who is elected to be the incharge of the property and who is in enjoyment of the property in common with the disciples of the Math comes to an end on his death and his interest of enjoyment in common with other disciples, whatever may be the nature of such interest, does not pass at any point of time to any other person, After the death of the Mahant duly elected, the right to be the in-charge of the property vests in the person who is thereafter elected as Mahant and the right of the deceased Mahant to enjoy the property in common with the other disciples of the Math completely ceases and does not pass to anybody else. In the instant case, therefore, no interest of the Mahant passes to anybody else and the provisions of the Act are, therefore, not attractedWe are, therefore, of the opinion that the High Court in the instant case was right in its answer to the question referred to it. The appeal against the judgment in the Tax Reference, therefore, fails. The appeal from the orders in the writ petition, therefore, necessarily fails. The appeals are hereby dismissed.
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We are not impressed by this argument of the learned counsel. It is true that in the absence of a specific question raised with regard to the correctness of any finding of fact, the High Court in a reference is not to interfere with the finding of fact by the Tribunal and the High Court has to proceed to answer the question on the facts found by the Tribunal. The finding of the CBR in the instant case that the properties are the personal properties of the deceased Mahant cannot, in the facts and circumstances of this case, be considered to be a finding of fact. The CBR in coming to its conclusion that the properties were the personal properties of the deceased Mahant had considered the nature of the grant by the Firman and also the judgment of the district judge in the title suit. The conclusion of the Board of Revenue that the properties are the personal properties of the Mahant on an interpretation of the grant and on a consideration of the judgment of the district judge is not a pure finding of fact. Any conclusion as to the true character or nature of the properties on the interpretation of the Firman and on taking into consideration the judgment of the district judge in the title suit is a finding on a mixed question of law and fact. The mere fact that the deceased Mahant had disposed of some of the properties does not in any way materially affect the question of consideration of the true nature and character of the properties and does not, in any way, affect the true nature or character thereof. It may, in this connection, be noted that it is not known under what circumstances any of the properties came to be disposed of by the deceased Mahant. There is no sale deed on record and no sale deed was made available to the High Court or to this court. The true nature and the character of the properties have to be determined on a proper interpretation of the Firman. In our opinion, the High Court in the instant case has correctly come to the conclusion that the properties belonged to the Math and are trust properties, relying on the Firman and the judgment of the district judge in the civil suitThe next contention urged by Mr. Manchanda is that even assuming that the properties were trust properties, the deceased had a beneficial life interest in the properties and the beneficial interest of the deceased Mahant must be deemed to have passed on to the next disciple or issue or Farzand by virtue of the provisions contained in s. 7 of theOn a consideration of the facts and circumstances of this case including the Firman and the judgment of the district judge, the High Court has correctly come to the conclusion that the Mahant had no property which he was competent to dispose of and the only interest the Mahant had was common enjoyment of the trust properties of the Math, with the disciples of the Math. The deceased Mahant had no particular or specific beneficial interest in the property and no benefit would accrue or arise to any one by the cesser of the interest of common enjoyment of the property by the deceased Mahant to any other person, as the deceased Mahant had no property at the time of his death which he was competent to dispose of and no benefit accrued or arose to the Mahant who came to be elected as Mahant according to custom on the demise of the Mahant or to any other disciple of the Math on the death of the Mahant. No interest, therefore, could be deemed to have passed on the death of the Mahant14. Section 2(16) of the Act provides" Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death"15. In the instant case, the interest of the Mahant who is elected to be the incharge of the property and who is in enjoyment of the property in common with the disciples of the Math comes to an end on his death and his interest of enjoyment in common with other disciples, whatever may be the nature of such interest, does not pass at any point of time to any other person, After the death of the Mahant duly elected, the right to be theincharge of the propertyvests in the person who is thereafter elected as Mahant and the right of the deceased Mahant to enjoy the property in common with the other disciples of the Math completely ceases and does not pass to anybody else. In the instant case, therefore, no interest of the Mahant passes to anybody else and the provisions of the Act are, therefore, not attractedWe are, therefore, of the opinion that the High Court in the instant case was right in its answer to the question referred to it. The appeal against the judgment in the Tax Reference, therefore, fails. The appeal from the orders in the writ petition, therefore, necessarily fails. The appeals are hereby dismissed.
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Chairman Cum Managing Director, Ennore Port Trust (Presently known as Kamarajar Port Limited) Vs. V. Manoharan & Others | herein) for their compliance in favour of the writ petitioners (respondents herein) which has given rise to filing of these appeals by way of special leave by the Port Trusts before this Court.20. Heard Mr. P.S. Narsimha, Mr. P. Wilson, learned senior counsel for the appellants and Mr. V. Prakash, Mr. Raju Ramachandran, learned senior counsel for the respondents.21. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part with directions mentioned hereinbelow.22. In our considered opinion, having regard to the nature of the controversy raised by the writ petitioners (respondents herein) and relief sought in the writ petitions out of which these appeals arise and keeping in view the clauses of the MOU, especially Clause 31, which provides for referring the case to the Arbitral Tribunal in the event of any dispute arising between the parties in relation to MOU, the writ petition filed by the respondents herein under Article 226 of the Constitution should not have been entertained for being tried on merits by the Single Judge and instead the parties should have been left to take recourse to the remedy provided in Clause 31 for referring the case to Arbitral Tribunal for its decision in accordance with law.23. In our considered opinion, a question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact.24. If such question is disputed by the establishment, then it is required to be decided by a fact-finding body on the basis of evidence adduced by such person unless the parties do not dispute the facts.25. If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other persons case is also automatically proved alike other person.26. In other words, every person has to prove his case qua establishment independently by adducing evidence. It is only then such person is entitled to claim such relief.27. In our considered opinion, several questions arise in the case at hand and need to be answered before considering grant of appropriate relief, if any. These questions when we see the background facts of the case set out above are inter-linked with each other and relate to the main activity which was being carried in the Chennai Port Trust and now shifted to Ennore Port Trust largely. The disputes now being raised again relate to the employment and regularization of the class IV employees in the set up of Chennai Port Trust. Indeed, to settle this controversy for all time to come, the stakeholders had in past executed MOU providing therein the entire machinery to safeguard the rights and obligation of parties concerned, which are detailed above. But due to several intervening factors, it did not seem to have worked smoothly.28. In our considered opinion, the following questions do arise in this case.29. First, whether the writ petitioners (respondents herein) were/are in employment of Chennai Port Trust or in the employment of any contractor and, if so, its basis. Second, whether there ever existed any relationship of employee and employer between the writ petitioners and Chennai Port Trust or between the writ petitioners and any contractor and, if so, its basis.30. Third, whether the writ petitioners were/are members of the Association and, if yes, then its effect and if not, then its effect.31. Fourth, assuming that the writ petitioners are not held to be the members of the Association as they now claim in the writ petition (see ground (e) in the writ petition at page 125-126), whether the writ petitioners (90 in number) are still entitled to claim any relief and, if so, against which Port Trust and of which nature.32. Fifth, assuming that the writ petitioners are held members of the Association or let us say eligible members by virtue of their qualifications prescribed in the MOU, whether they are entitled to claim any relief against any Port Trust and, if so, of which nature.33. Sixth, If the writ petitioners (whether all or some) are able to prove that they are/were in the employment of Chennai Port Trust and that relationship of employee and employer between them does exist notwithstanding execution of MOU, then whether such persons are entitled to claim regularization in the service of Port Trust and, if so, since when and with what benefits or their cases are still governed by MOU as its members and lastly, what eventual reliefs, if any, can be granted to the writ petitioners.34. In our view, the aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by a fact-finding body empowered to record evidence.35. Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, we are of the view that it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes.36. We are of the view that to decide the questions arising in the case at hand, recourse to MOU for the purpose of referring the case to arbitration can be taken. As observed supra, even otherwise, the disputes raised herein are not the disputes, which are capable of being tried effectively in writ jurisdiction and indeed are capable of being tried only by a Tribunal.37. Once the disputes are referred to the Arbitral Tribunal, the writ petitioners and the Port Trusts would be at liberty to raise all the issues on facts/law in support of their respective contentions including adducing evidence (oral and documentary).38. In view of the foregoing discussion, we are unable to sustain the impugned order, which in the facts of this case should not have been passed. | 1[ds]21. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part with directions mentioned hereinbelow.22. In our considered opinion, having regard to the nature of the controversy raised by the writ petitioners (respondents herein) and relief sought in the writ petitions out of which these appeals arise and keeping in view the clauses of the MOU, especially Clause 31, which provides for referring the case to the Arbitral Tribunal in the event of any dispute arising between the parties in relation to MOU, the writ petition filed by the respondents herein under Article 226 of the Constitution should not have been entertained for being tried on merits by the Single Judge and instead the parties should have been left to take recourse to the remedy provided in Clause 31 for referring the case to Arbitral Tribunal for its decision in accordance with law.23. In our considered opinion, a question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact.24. If such question is disputed by the establishment, then it is required to be decided by abody on the basis of evidence adduced by such person unless the parties do not dispute the facts.25. If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other persons case is also automatically proved alike other person.26. In other words, every person has to prove his case qua establishment independently by adducing evidence. It is only then such person is entitled to claim such relief.27. In our considered opinion, several questions arise in the case at hand and need to be answered before considering grant of appropriate relief, if any. These questions when we see the background facts of the case set out above arewith each other and relate to the main activity which was being carried in the Chennai Port Trust and now shifted to Ennore Port Trust largely. The disputes now being raised again relate to the employment and regularization of the class IV employees in the set up of Chennai Port Trust. Indeed, to settle this controversy for all time to come, the stakeholders had in past executed MOU providing therein the entire machinery to safeguard the rights and obligation of parties concerned, which are detailed above. But due to several intervening factors, it did not seem to have worked smoothly.In our view, the aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by abody empowered to record evidence.35. Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, we are of the view that it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes.36. We are of the view that to decide the questions arising in the case at hand, recourse to MOU for the purpose of referring the case to arbitration can be taken. As observed supra, even otherwise, the disputes raised herein are not the disputes, which are capable of being tried effectively in writ jurisdiction and indeed are capable of being tried only by a Tribunal.37. Once the disputes are referred to the Arbitral Tribunal, the writ petitioners and the Port Trusts would be at liberty to raise all the issues on facts/law in support of their respective contentions including adducing evidence (oral and documentary).38. In view of the foregoing discussion, we are unable to sustain the impugned order, which in the facts of this case should not have been passed. | 1 | 3,063 | 706 | ### 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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herein) for their compliance in favour of the writ petitioners (respondents herein) which has given rise to filing of these appeals by way of special leave by the Port Trusts before this Court.20. Heard Mr. P.S. Narsimha, Mr. P. Wilson, learned senior counsel for the appellants and Mr. V. Prakash, Mr. Raju Ramachandran, learned senior counsel for the respondents.21. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part with directions mentioned hereinbelow.22. In our considered opinion, having regard to the nature of the controversy raised by the writ petitioners (respondents herein) and relief sought in the writ petitions out of which these appeals arise and keeping in view the clauses of the MOU, especially Clause 31, which provides for referring the case to the Arbitral Tribunal in the event of any dispute arising between the parties in relation to MOU, the writ petition filed by the respondents herein under Article 226 of the Constitution should not have been entertained for being tried on merits by the Single Judge and instead the parties should have been left to take recourse to the remedy provided in Clause 31 for referring the case to Arbitral Tribunal for its decision in accordance with law.23. In our considered opinion, a question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact.24. If such question is disputed by the establishment, then it is required to be decided by a fact-finding body on the basis of evidence adduced by such person unless the parties do not dispute the facts.25. If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other persons case is also automatically proved alike other person.26. In other words, every person has to prove his case qua establishment independently by adducing evidence. It is only then such person is entitled to claim such relief.27. In our considered opinion, several questions arise in the case at hand and need to be answered before considering grant of appropriate relief, if any. These questions when we see the background facts of the case set out above are inter-linked with each other and relate to the main activity which was being carried in the Chennai Port Trust and now shifted to Ennore Port Trust largely. The disputes now being raised again relate to the employment and regularization of the class IV employees in the set up of Chennai Port Trust. Indeed, to settle this controversy for all time to come, the stakeholders had in past executed MOU providing therein the entire machinery to safeguard the rights and obligation of parties concerned, which are detailed above. But due to several intervening factors, it did not seem to have worked smoothly.28. In our considered opinion, the following questions do arise in this case.29. First, whether the writ petitioners (respondents herein) were/are in employment of Chennai Port Trust or in the employment of any contractor and, if so, its basis. Second, whether there ever existed any relationship of employee and employer between the writ petitioners and Chennai Port Trust or between the writ petitioners and any contractor and, if so, its basis.30. Third, whether the writ petitioners were/are members of the Association and, if yes, then its effect and if not, then its effect.31. Fourth, assuming that the writ petitioners are not held to be the members of the Association as they now claim in the writ petition (see ground (e) in the writ petition at page 125-126), whether the writ petitioners (90 in number) are still entitled to claim any relief and, if so, against which Port Trust and of which nature.32. Fifth, assuming that the writ petitioners are held members of the Association or let us say eligible members by virtue of their qualifications prescribed in the MOU, whether they are entitled to claim any relief against any Port Trust and, if so, of which nature.33. Sixth, If the writ petitioners (whether all or some) are able to prove that they are/were in the employment of Chennai Port Trust and that relationship of employee and employer between them does exist notwithstanding execution of MOU, then whether such persons are entitled to claim regularization in the service of Port Trust and, if so, since when and with what benefits or their cases are still governed by MOU as its members and lastly, what eventual reliefs, if any, can be granted to the writ petitioners.34. In our view, the aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by a fact-finding body empowered to record evidence.35. Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, we are of the view that it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes.36. We are of the view that to decide the questions arising in the case at hand, recourse to MOU for the purpose of referring the case to arbitration can be taken. As observed supra, even otherwise, the disputes raised herein are not the disputes, which are capable of being tried effectively in writ jurisdiction and indeed are capable of being tried only by a Tribunal.37. Once the disputes are referred to the Arbitral Tribunal, the writ petitioners and the Port Trusts would be at liberty to raise all the issues on facts/law in support of their respective contentions including adducing evidence (oral and documentary).38. In view of the foregoing discussion, we are unable to sustain the impugned order, which in the facts of this case should not have been passed.
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21. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part with directions mentioned hereinbelow.22. In our considered opinion, having regard to the nature of the controversy raised by the writ petitioners (respondents herein) and relief sought in the writ petitions out of which these appeals arise and keeping in view the clauses of the MOU, especially Clause 31, which provides for referring the case to the Arbitral Tribunal in the event of any dispute arising between the parties in relation to MOU, the writ petition filed by the respondents herein under Article 226 of the Constitution should not have been entertained for being tried on merits by the Single Judge and instead the parties should have been left to take recourse to the remedy provided in Clause 31 for referring the case to Arbitral Tribunal for its decision in accordance with law.23. In our considered opinion, a question whether a particular person is in the employment of any establishment and whether he is entitled to claim regularization of his services in such establishment (as in this case Port Trust) and, if so, from which date is essentially a question of fact.24. If such question is disputed by the establishment, then it is required to be decided by abody on the basis of evidence adduced by such person unless the parties do not dispute the facts.25. If one person is able to prove his case of regularization qua establishment from a particular date that does not necessarily mean that other persons case is also automatically proved alike other person.26. In other words, every person has to prove his case qua establishment independently by adducing evidence. It is only then such person is entitled to claim such relief.27. In our considered opinion, several questions arise in the case at hand and need to be answered before considering grant of appropriate relief, if any. These questions when we see the background facts of the case set out above arewith each other and relate to the main activity which was being carried in the Chennai Port Trust and now shifted to Ennore Port Trust largely. The disputes now being raised again relate to the employment and regularization of the class IV employees in the set up of Chennai Port Trust. Indeed, to settle this controversy for all time to come, the stakeholders had in past executed MOU providing therein the entire machinery to safeguard the rights and obligation of parties concerned, which are detailed above. But due to several intervening factors, it did not seem to have worked smoothly.In our view, the aforesaid questions could not be decided in the writ petition but could be adjudicated more effectively by abody empowered to record evidence.35. Since in this case parties have agreed to refer the matter to the Arbitral Tribunal in the event of any dispute arising between them, we are of the view that it would be in the interest of justice that the parties are relegated to take recourse to the arbitration proceeding remedy for adjudicating the disputes.36. We are of the view that to decide the questions arising in the case at hand, recourse to MOU for the purpose of referring the case to arbitration can be taken. As observed supra, even otherwise, the disputes raised herein are not the disputes, which are capable of being tried effectively in writ jurisdiction and indeed are capable of being tried only by a Tribunal.37. Once the disputes are referred to the Arbitral Tribunal, the writ petitioners and the Port Trusts would be at liberty to raise all the issues on facts/law in support of their respective contentions including adducing evidence (oral and documentary).38. In view of the foregoing discussion, we are unable to sustain the impugned order, which in the facts of this case should not have been passed.
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Rukumanand Bairoliya Vs. State of Bihar & Others | and some other land with Mohini Devi, the mother of the appellant, by a registered patta dated June 19, 1946 on annual rental of Rs. 236/8/6 for the construction of houses thereon which could be rented out. The estate of Mustaque Ali Khan vested in the State of Bihar under the Bihar Land Reforms Act, 1950, hereinafter called the "Act". Mohini Devi created a trust in the name of her deceased husband of which the appellant was the Secretary. The disputed land continued to remain in his possession in that capacity. In 1956-57 proceedings were started for the acquisition of the disputed land for extension of the Darbhanga Medical College. An amount of Rs 12,689/2/- was assessed as compensation for the property which had been acquired and an award was made in the joint names of the appellant and the State of Bihar. Because the appellant objected to the inclusion of the State in the award he sought a reference under S. 30 of the Land Acquisition Act. That reference was pending in the court of the District Judge, Darbhanga when on April 16, 1960 proceedings under S. 4 (b) of the Act were started in respect of the disputed land. On April 25, 1961 the Land Reforms Deputy Collector made an order that the settlement of the disputed land with Mohini Devi in 1946 by Mustaque Ali Khan was invalid and that it should be annulled. This order was confirmed by the Collector of Darbhanga on May 25, 1962. The appellant moved the Commissioner for setting aside of the aforesaid orders but without any success. He then filed a petition under Arts. 226 and 227 of the Constitution challenging those orders. The High Court referred to the following part of the order of the Commissioner :"The circumstances of the settlement and certain features of the settlement itself may disclose the intention of the party. The land has bees settled at a very low rate of Rs. 3/per katha. But the amount of compensation has been calculated at Rs. 12,689/2/-. It is, therefore, obvious that the rate mentioned in the Patta did not disclose the real value of a plot of land situated in an important part of the city close to the Darbhanga Medical College Hospital. By acquiring such a valuable piece of land on a low rate, the intention of Smt. Mohini Devi was obviously to appropriate the profits which would have accrued to the State on vesting of the Zamindari. Had there been any intention of using this land for the construction of a house, the construction would have been taken in hand after obtaining the settlement. This was not done. The expansion of the Darbhanga Medical College Hospital was well known, and the possibility of obtaining advantage out of that expansion obviously attracted the purchaser." It was contended on behalf of the appellant before the High Court that the revenue authorities had not referred to any specific evidence in respect of their conclusion on the question of loss to the State being the object of settlement. The High Court, however, was of the view that this contention was not well founded. This is what the High Court said :"Here the finding is based on circumstantial evidence as the order of the Commissioner, which I have extracted above, clearly shows. The revenue authorities were fully entitled to take into consideration the circumstances and features of the settlement for the purpose of determining the object with which it had been made. Besides, they also took into account the potential and the present value of the land which had been settled at a rate which, in the circumstances, was a very low rate, having regard to the situation of the land. I am, therefore, unable to accept the contention of the learned counsel that there was no material before the revenue authorities to come to the conclusion at which they have reached."The High Court, however, agreed that if the finding of the revenue authorities was based on no material whatsoever the position would be different.3. Section 4 of the Act relates to the consequences of the vesting of an estate or tenure in the State. Under clause (b) of that section the Collector has been empowered to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building etc. and if he is satisfied that such transfer was made at any time after the first of January 1946, with the object of defeating any provisions of the Act or causing loss to the State or obtaining higher compensation thereunder, the Collector may, after giving reasonable notice, annul such transfer and dispossess the person claiming under it. The order of the Deputy Collector as well as the Commissioner says that both the authorities were considerably influenced by the rental of Rs. 3/- per katha at which the settlement had been made. The High Court also was of the view that this fact weighed with the authorities among other considerations in coming to the conclusion that the settlement had been made with a view to causing considerable loss to the State Government. In our opinion neither the revenue authorities nor the High Court took into consideration the absence of any proof having been adduced with regard to the actual rate of settlement prevailing at the time when the settlement of the disputed land was made. We are altogether unable to understand how the rate of Rs. 3,/- per katha was considered to be very low when no material had been produced to show what the current rate of rental prevailing at the relevant time was of land similar to the disputed land. Therefore one of the principal matters which weighed with the authorities and the High Court was based on pure assumptions and conjectures and on no evidence whatsoever. On this ground alone the impugned orders should have been quashed. | 1[ds]In our opinion neither the revenue authorities nor the High Court took into consideration the absence of any proof having been adduced with regard to the actual rate of settlement prevailing at the time when the settlement of the disputed land was made. We are altogether unable to understand how the rate of Rs. 3,/per katha was considered to be very low when no material had been produced to show what the current rate of rental prevailing at the relevant time was of land similar to the disputed land. Therefore one of the principal matters which weighed with the authorities and the High Court was based on pure assumptions and conjectures and on no evidence whatsoever. On this ground alone the impugned orders should have been quashed. | 1 | 1,158 | 138 | ### 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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and some other land with Mohini Devi, the mother of the appellant, by a registered patta dated June 19, 1946 on annual rental of Rs. 236/8/6 for the construction of houses thereon which could be rented out. The estate of Mustaque Ali Khan vested in the State of Bihar under the Bihar Land Reforms Act, 1950, hereinafter called the "Act". Mohini Devi created a trust in the name of her deceased husband of which the appellant was the Secretary. The disputed land continued to remain in his possession in that capacity. In 1956-57 proceedings were started for the acquisition of the disputed land for extension of the Darbhanga Medical College. An amount of Rs 12,689/2/- was assessed as compensation for the property which had been acquired and an award was made in the joint names of the appellant and the State of Bihar. Because the appellant objected to the inclusion of the State in the award he sought a reference under S. 30 of the Land Acquisition Act. That reference was pending in the court of the District Judge, Darbhanga when on April 16, 1960 proceedings under S. 4 (b) of the Act were started in respect of the disputed land. On April 25, 1961 the Land Reforms Deputy Collector made an order that the settlement of the disputed land with Mohini Devi in 1946 by Mustaque Ali Khan was invalid and that it should be annulled. This order was confirmed by the Collector of Darbhanga on May 25, 1962. The appellant moved the Commissioner for setting aside of the aforesaid orders but without any success. He then filed a petition under Arts. 226 and 227 of the Constitution challenging those orders. The High Court referred to the following part of the order of the Commissioner :"The circumstances of the settlement and certain features of the settlement itself may disclose the intention of the party. The land has bees settled at a very low rate of Rs. 3/per katha. But the amount of compensation has been calculated at Rs. 12,689/2/-. It is, therefore, obvious that the rate mentioned in the Patta did not disclose the real value of a plot of land situated in an important part of the city close to the Darbhanga Medical College Hospital. By acquiring such a valuable piece of land on a low rate, the intention of Smt. Mohini Devi was obviously to appropriate the profits which would have accrued to the State on vesting of the Zamindari. Had there been any intention of using this land for the construction of a house, the construction would have been taken in hand after obtaining the settlement. This was not done. The expansion of the Darbhanga Medical College Hospital was well known, and the possibility of obtaining advantage out of that expansion obviously attracted the purchaser." It was contended on behalf of the appellant before the High Court that the revenue authorities had not referred to any specific evidence in respect of their conclusion on the question of loss to the State being the object of settlement. The High Court, however, was of the view that this contention was not well founded. This is what the High Court said :"Here the finding is based on circumstantial evidence as the order of the Commissioner, which I have extracted above, clearly shows. The revenue authorities were fully entitled to take into consideration the circumstances and features of the settlement for the purpose of determining the object with which it had been made. Besides, they also took into account the potential and the present value of the land which had been settled at a rate which, in the circumstances, was a very low rate, having regard to the situation of the land. I am, therefore, unable to accept the contention of the learned counsel that there was no material before the revenue authorities to come to the conclusion at which they have reached."The High Court, however, agreed that if the finding of the revenue authorities was based on no material whatsoever the position would be different.3. Section 4 of the Act relates to the consequences of the vesting of an estate or tenure in the State. Under clause (b) of that section the Collector has been empowered to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building etc. and if he is satisfied that such transfer was made at any time after the first of January 1946, with the object of defeating any provisions of the Act or causing loss to the State or obtaining higher compensation thereunder, the Collector may, after giving reasonable notice, annul such transfer and dispossess the person claiming under it. The order of the Deputy Collector as well as the Commissioner says that both the authorities were considerably influenced by the rental of Rs. 3/- per katha at which the settlement had been made. The High Court also was of the view that this fact weighed with the authorities among other considerations in coming to the conclusion that the settlement had been made with a view to causing considerable loss to the State Government. In our opinion neither the revenue authorities nor the High Court took into consideration the absence of any proof having been adduced with regard to the actual rate of settlement prevailing at the time when the settlement of the disputed land was made. We are altogether unable to understand how the rate of Rs. 3,/- per katha was considered to be very low when no material had been produced to show what the current rate of rental prevailing at the relevant time was of land similar to the disputed land. Therefore one of the principal matters which weighed with the authorities and the High Court was based on pure assumptions and conjectures and on no evidence whatsoever. On this ground alone the impugned orders should have been quashed.
### Response:
1
### Explanation:
In our opinion neither the revenue authorities nor the High Court took into consideration the absence of any proof having been adduced with regard to the actual rate of settlement prevailing at the time when the settlement of the disputed land was made. We are altogether unable to understand how the rate of Rs. 3,/per katha was considered to be very low when no material had been produced to show what the current rate of rental prevailing at the relevant time was of land similar to the disputed land. Therefore one of the principal matters which weighed with the authorities and the High Court was based on pure assumptions and conjectures and on no evidence whatsoever. On this ground alone the impugned orders should have been quashed.
|
Mohamed Ali Vs. V. Jaya & Ors | decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India. 7. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: - 11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself. 7.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India. 7.2 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order passed by the High Court is on irrelevant considerations and the relevant aspects as observed hereinabove have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside. | 1[ds]6.1 Having gone through the impugned common judgment and order passed by the High Court, it can be seen that as such the High Court has not at all considered whether the learned Trial Court was justified in refusing to condone such a huge delay of 2345 days. The High Court has also not appreciated and considered the fact that as such the order passed by the learned Trial Court refusing to condone the delay of 1522 days in so far as original defendant No. 1, had attained the finality. Original defendant No. 1 straightway challenged the ex-parte judgment and decree passed by the learned Trial Court by way of revision application under Article 227 of the Constitution of India. Whether the revision application before the High Court under Article 227 of the Constitution of India can be said to be maintainable or not has not at all been considered. Even otherwise, the remedy against an ex-parte judgment and decree available to the defendants was, either to file an application under Order IX Rule 13 of CPC or to prefer an appeal before the First Appellate Court. The defendants availed the first remedy by way of filing the applications under Order IX Rule 13 of CPC. However, there was a huge delay of 1522 and 2345 days, which was not condoned by the learned Trial Court. Without expressing anything on whether the learned Trial Court was justified in refusing to condone the delay, the High Court has simply set aside the order passed by the learned Trial Court refusing to condone the delay in so far as original defendant Nos. 2 to 4 are concerned. The High Court ought to have dealt with and considered the question, whether, the learned Trial Court was justified in refusing to condone the delay or not. There is no discussion at all on the order passed by the learned Trial Court refusing to condone the delay.6.2 Even otherwise and as observed hereinabove, against the ex-parte judgment and decree, the remedy by way of an appeal before the First Appellate Court was available. Therefore, the High Court ought not to have entertained the revision application under Section 115 of CPC and under Article 227 of the Constitution of India. The High Court ought not to have entertained such a revision application challenging the ex-parte judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India.7. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: -11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy.12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts.13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.7.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India.7.2 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order passed by the High Court is on irrelevant considerations and the relevant aspects as observed hereinabove have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside. | 1 | 3,852 | 1,515 | ### 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:
decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India. 7. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: - 11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself. 7.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India. 7.2 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order passed by the High Court is on irrelevant considerations and the relevant aspects as observed hereinabove have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside.
### Response:
1
### Explanation:
judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India.7. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: -11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy.12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts.13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.7.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India.7.2 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order passed by the High Court is on irrelevant considerations and the relevant aspects as observed hereinabove have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside.
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Vidhya Viswanathan Vs. Kartik Balakrishnan | so many contraceptives available and they could have used such contraceptives and avoided pregnancy if they had wanted. Xx xx.” 12. Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty. Paragraph 101 of the said case is being reproduced below: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill [pic]conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty." xx xx xx xx The above mentioned illustrations, No. (viii) and (xii) given in Samar Ghosh case (supra), support the view taken by the High Court in holding that in the present case the wife has treated her husband with mental cruelty. 13. In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778 regarding legal proposition on aspect of cruelty has made the following observations: “31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the [pic]impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.” 14. In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty. However, we are conscious of the fact that the appellant, as stated by her, was doing a job before her marriage, and she (Vidhya Vishwanathan) has stated as D.W.1 that at present she is not doing any work. As such we think it just and proper to direct the respondent to pay to the appellant (wife) one time lump sum amount of alimony. | 1[ds]14. In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty. However, we are conscious of the fact that the appellant, as stated by her, was doing a job before her marriage, and she (Vidhya Vishwanathan) has stated as D.W.1 that at present she is not doing any work. As such we think it just and proper to direct the respondent to pay to the appellant (wife) one time lump sum amount of alimony. | 1 | 3,473 | 131 | ### Instruction:
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so many contraceptives available and they could have used such contraceptives and avoided pregnancy if they had wanted. Xx xx.” 12. Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty. Paragraph 101 of the said case is being reproduced below: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill [pic]conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty." xx xx xx xx The above mentioned illustrations, No. (viii) and (xii) given in Samar Ghosh case (supra), support the view taken by the High Court in holding that in the present case the wife has treated her husband with mental cruelty. 13. In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778 regarding legal proposition on aspect of cruelty has made the following observations: “31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the [pic]impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.” 14. In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty. However, we are conscious of the fact that the appellant, as stated by her, was doing a job before her marriage, and she (Vidhya Vishwanathan) has stated as D.W.1 that at present she is not doing any work. As such we think it just and proper to direct the respondent to pay to the appellant (wife) one time lump sum amount of alimony.
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14. In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty. However, we are conscious of the fact that the appellant, as stated by her, was doing a job before her marriage, and she (Vidhya Vishwanathan) has stated as D.W.1 that at present she is not doing any work. As such we think it just and proper to direct the respondent to pay to the appellant (wife) one time lump sum amount of alimony.
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Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand And Anr | thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as the workman might wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrieved workman in case of such contravention. 10. We may now refer to one last contention urged on behalf of the workman. That contention was that the pp.-sent case was not one in which no application for approval was made by the appellant to the Industrial Tribunal and there was thus contravention of section 33(2) (b), but an application for approval was made under section 33 (2) (b) and this application did not result in grant of approval, since it was withdraw n. It was argued that this was tantamount to refusal of approval and the ban imposed by section 3 3 (2) (b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative. This contention of the workman is, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman . If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice it has refused to lift the ban. Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion t o consider the application on merits there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift t he ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all.We accordingly hold that the appellant contravened section 33(2) (b) in dismissing the workmen in both the appeals but such contravention did not have the effect of rendering the orders of dismissal void and inoperative and hence the workmen were not entitled to maintain the applications for determination and payment of wages under section 33C(2). But since we are exercising our extraordinary jurisdiction under Article 136, we are not bound to set aside the order of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen unless the justice of the case so request. We think that the demands of social justice are pardisputes and, therefore, even amount while dealing with industrial though the Labour court was not right in allowing these applications , we do not think we should exercise our overwinding jurisdiction under Article 136 to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen. We do not, therefore interfere with this part of the orders of the Labour Court, and the amounts ordered to be paid by the Labour Court may be treated as compensation instead of wages. The amounts which have already been paid by the appellant to the workmen pursuant to the orders of the Labour Court or in compliance with the directions given by this Court during the pendency of these appeals, will be adjusted against the amounts ordered to be paid to the workmen. We may make to clear that this order shall not be construed as precluding the workmen from, pursuing the remedy under Section 33A or Section 10. Since at the time of grant of special leave in these appeals it was made a condition by this Court that the appellant should in any e vent pay the costs of the workmen, we direct that, though the appellant has succeeded, the appellant will pay the costs of these appeals to the workmen. We are told that such costs have already been paid by the appellant to the workmen.C.A. No. 2820 of 1977. 11. This appeal by special leave is directed against the order made by the Labour Court granting the application made by the 1st respondent under section 33C(2) and directing the appellant to pay wages to the 1st respondent on the basis that the order of dismissal passed against him was void and ineffective and the 1st respondent continued LO be in service. It is not necessary to set out the facts giving rise to this appeal since the only question of law which arise s in this appeal has been disposed of by us today in a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having regard to that judgment, it is clear that the 1st respondent was not entitled to maintain the application under section 33C(2) without adjudication from a proper authority, either oh a complaint under section 33A or in a reference under section 10, that the order of dismissal passed against him was unjustified and directing his reinstatement. 12. | 1[ds]It is only if an order of dismissal passed in contravention of section 3 3 (2) (b) is null and void that the aggrieved workman would be entitled to maintain an application under section 33C(2) for determination and payment of the amount of wages due to him on the basis that he continues in service despite the order of dismissal. It is now well settled, as a result of several decisions of this Court, that a proceeding under section 33C(2) is a proceeding in the nature of executive proceeding in which the Labour Court calculates the amount of money due to a workman from his employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. But the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. Vide Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar &Ors.([1968] 1 S.C.R. 140.) It is not competent to the Labour Court exercising jurisdiction under section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made ther of an industrial dispute in a reference under section 10 of the Act. Vide Gopaul v. Union of ([1968] 1 L.L.J.589.). That is why Gajendragadkar, J., pointed out in The Central Bank of India Ltd. v. P. S. Rajagopalan etc. ([1964] 3 S.C.R. 140.) that:The workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under section 33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under section 33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of section 33(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid.The determination of this question depend s on the true interpretation of section 33 (2) (b), but it is a well settled rule of construction that no one section of a statute should be read in isolation, but it should be construed with reference to the context and other provisions of the statute, so as, as far as possible, to make a consistent enactment of the whole statute. Lord Herschel stated the rule in the following words inColguhoun v. Brooks. ([1889] 14 A.C. 493 at 506)"It is beyond dispute, too, that we are entitle d, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act." We must therefore, have regard not only to the language of section 33 (2) (b), but also to the object and purpose of that provision, the context in which it occurs and other provisions of the Act in order to determine what the legislature intended should be the effect of contravention of section 33 (2) (b) on the order of dismissalIt will be seen that the only scope of the inquiry before the Tribunal exercising jurisdiction under section 33 is to decide whether the ban imposed on the employer by this section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. But the reverse is not true for even it the permission or approval that would not validate the action of discharge or is granted punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge or dismissal and thus avoid incurring the penalty under section 31 (1), but the validity of the order of discharge or dismissal would still be liable to be tested in a reference at the instanceof the workmen under section 10, Vide Atherton West &Co.s case and the Punjab, National Bank case. The workman would be entitled to raise an industrial dispute in regard to the order of discharge or dismissal and hive it referred for adjudication under s. 10 and the Tribunal in such reference would be entitled to interfere with the order of discharge or dismissal within the limits laid down by this Court in several decisions commencing from Indian Iron &Steel Co. Ltd. v. Their Workmen([1958] S.C.R. 667.).This is the position which arises when the employer makes an application for permission or approval under section 33 and such permission contravention of section 33, the fight to move the Tribunal for redress of his grievance without having to take recourse to section 10Now, what is the scope of the inquiry under Section 33A when a workman aggrieved by an order of discharge or dismissal passed in contravention of section 33 makes a complaint in writing to the Tribunal under section 33A. This question also is not res integra and it has been decided by this Court in a number of decisions. The first case where this question came up for consideration was The Automobile Products of India Ltd. v. ukmaji Bala &Ors. ([1955] 1 S.C.R.1241.) where the Court was called upon to construe section 23 of the Industrial Disputes (Appellate Tribunal) Act 1950 which corresponded toA of the Act. Section 23 conferred a right on a workman aggrieved by an order of discharge or dismissal passed in contravention of section 22 to make a complaint to the Labour Appellate Tribunal and on receiving such complaint, the Labour Appellate Tribunal was empowered to decide it as if it were an appeal pending before it. Section 22 of the Industrial Disputes (Appellate, Tribunal) Act, 1950 was in almost identical terms as section 33 of the Act. Das, J., who delivered the judgment of the Court, observed while construing section 33A of the Act and the corresponding section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 that the scheme of these sections "indicates that the authority to whom the complaint is made is to decide both the issues, viz., (1) the effect of contravention, (2) the merits of the act or order of the employer". The provisions of these two sections, said the learned. Judge quite clearly show that "that the jurisdiction of the authority is not only to decided whether there has been a failure on the part of the employer to obtain the permission of the authority before. taking action but also to go into the merits of the complaint and grant appropriate reliefs". It was urged before the Court that in holding an inquiry under section 33A, the duty o f the Tribunal is only to find out whether there has been a contravention of section 33 and if it finds that there is such contravention, to make a declaration to that effect and no further question can thereafter arise for consideration in such inquiry. This contention was however, rejected.The same question was again raised before this Court in Equitable Coal Co. v. Algu Singh(A.I.R. 1958 S.C. 761.) and in this case, the Court, following its previous decision in Automobile Products of India Ltd. v. Rukmani Bala (supra) pointed out in a very clear and lucid exposition of the subject:It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman under section 33A is whether the order of discharge or dismissal made by the employer is in contravention of section 33. The foundation of the complaint under section 33A is contravention of section 33 and if the workman is unable to show that the employer has contravened section 33 in making the order of discharge or dismissal, the complaint would be liable to be rejected. But if the contravention of section 33 is established, the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits. The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if it is. The Tribunal would sustain the order, treating the breach of section 33 as a mere technical breach. Since in such a case, the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Co.s case an order of compensation made by the Tribunal in favour of the workman was reserved by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under section 33A is not confined only to the determination of the question as to whether the employer has contravened section 33, but even if such contravention is proved, the Tribunal has to go further, and deal also with the merits of the order of discharge or dismissal.Now, if the effect of contravention of section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightaway be entitled to an or of reinstatement as soon as he establishes in the complaint made by him under section 33A that t he employer has contravened section 33 in making the order of discharge or dismissal. There would be no need to go into the further of discharge or dismissal passed by the employer is justified on the merits. If is difficult to imagine how the law can permit an order of discharge or dismissal Which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal which is found to be null and void very fact t hat even after the contravention of section 33 is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J., speaking on behalf of the Court in Equitable Coal Co. case, characterised the breach of section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under section 33A is what is has been held to be in the decisions in Automobile Products of India, Equitable Coal Co. and the Punjab National Bank cases, the conclusion must inevitably follow that the contravention of section 33 does not render the order of discharge or dismissal void and of no effect. It is also significant to note that if the contravention of sect ion 33 were construed as having an invalidating effect on the order of discharge or dismissal, section 33A would be rendered meaningless and futile, because in that event, the workman would invariably prefer to make an application under section 33C (2) for determination and payment of the wages due to him on the basis that he continues to be in service. If the workman files a complaint under section 33A, he would not be entitled to succeed merely by showing that there is contravention of section 33 and the question whether the order of discharge or dismissal is justified on the merits would be gone into by the Tribunal and if, on the merits, it is found to be justified, it would be sustained as valid despite contravention of section 33, but if, on the other hand, instead of proceeding under section 33A, he makes an application under section 33C(2), it would be enough for him to show contravention of section 33 and he would then be entitled to claim wages, on the basis that the continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under section 33A, the employer would have an opportunity of justifying the order of discharge or dismissal on merits, but if theworkmanproceeds under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the, whether under section 33A or under section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted, noworkmanwou ld file a complaint under section 33A, but he would always proceed under section 33C(2) and section 33A would be reduced to futility. It is, therefore, impossible to accept the argument that the contravention of section 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to theworkmanfor challenging the order of discharge or dismissal is that provided under section 33A, apart of course from the remedy under secti on 10, and he cannot maintain an application under section 33C(2) for determination and payment of wages on the basis that he continues to be in service. Theworkmancan proceed under section 33C(2) only after the Tribunal has adjudicate d, on a complaint under section 33A or on a reference under section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated thet was urged on behalf of theworkmanth at if this view were taken, it would rob theworkmanof the protection afforded to him under section 33 and the object and purpose of the section would be defeated because the employer would then, with impunity, discharge or dismissworkmanwithout complying with the requirements of section 33. But we do not think this apprehension of theworkmanis well founded. If the employer contravenes the provisions of section 33 and discharges or dismisses aworkmanwithout obtaining per mission or approval of the Tribunal, he would render himself liable to punishment under section 31 (1) and this punishment can extend even to imprisonment. Moreover, the aggrievedworkmanwould not only have the remedy of moving the appropriate Government for making a reference under section 10, but he would also be entitled to make a complaint to the Tribunal under section 33A and on such reference or complaint, the order of discharge or dismissal would be liable to be subjected to a much greater scrutiny than what would be available before a Tribunal exercising the limited jurisdiction conferred under section 33. Theworkmanis thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as theworkmanmight wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrievedworkmanin case of such contraventionThis contention of theworkmanis, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of theworkmanamounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the | 1 | 6,600 | 3,120 | ### 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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thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as the workman might wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrieved workman in case of such contravention. 10. We may now refer to one last contention urged on behalf of the workman. That contention was that the pp.-sent case was not one in which no application for approval was made by the appellant to the Industrial Tribunal and there was thus contravention of section 33(2) (b), but an application for approval was made under section 33 (2) (b) and this application did not result in grant of approval, since it was withdraw n. It was argued that this was tantamount to refusal of approval and the ban imposed by section 3 3 (2) (b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative. This contention of the workman is, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman . If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice it has refused to lift the ban. Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion t o consider the application on merits there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift t he ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all.We accordingly hold that the appellant contravened section 33(2) (b) in dismissing the workmen in both the appeals but such contravention did not have the effect of rendering the orders of dismissal void and inoperative and hence the workmen were not entitled to maintain the applications for determination and payment of wages under section 33C(2). But since we are exercising our extraordinary jurisdiction under Article 136, we are not bound to set aside the order of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen unless the justice of the case so request. We think that the demands of social justice are pardisputes and, therefore, even amount while dealing with industrial though the Labour court was not right in allowing these applications , we do not think we should exercise our overwinding jurisdiction under Article 136 to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen. We do not, therefore interfere with this part of the orders of the Labour Court, and the amounts ordered to be paid by the Labour Court may be treated as compensation instead of wages. The amounts which have already been paid by the appellant to the workmen pursuant to the orders of the Labour Court or in compliance with the directions given by this Court during the pendency of these appeals, will be adjusted against the amounts ordered to be paid to the workmen. We may make to clear that this order shall not be construed as precluding the workmen from, pursuing the remedy under Section 33A or Section 10. Since at the time of grant of special leave in these appeals it was made a condition by this Court that the appellant should in any e vent pay the costs of the workmen, we direct that, though the appellant has succeeded, the appellant will pay the costs of these appeals to the workmen. We are told that such costs have already been paid by the appellant to the workmen.C.A. No. 2820 of 1977. 11. This appeal by special leave is directed against the order made by the Labour Court granting the application made by the 1st respondent under section 33C(2) and directing the appellant to pay wages to the 1st respondent on the basis that the order of dismissal passed against him was void and ineffective and the 1st respondent continued LO be in service. It is not necessary to set out the facts giving rise to this appeal since the only question of law which arise s in this appeal has been disposed of by us today in a judgment delivered in Civil Appeals Nos. 1375 and 1384 of 1977 and having regard to that judgment, it is clear that the 1st respondent was not entitled to maintain the application under section 33C(2) without adjudication from a proper authority, either oh a complaint under section 33A or in a reference under section 10, that the order of dismissal passed against him was unjustified and directing his reinstatement. 12.
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need to go into the further of discharge or dismissal passed by the employer is justified on the merits. If is difficult to imagine how the law can permit an order of discharge or dismissal Which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal which is found to be null and void very fact t hat even after the contravention of section 33 is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J., speaking on behalf of the Court in Equitable Coal Co. case, characterised the breach of section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under section 33A is what is has been held to be in the decisions in Automobile Products of India, Equitable Coal Co. and the Punjab National Bank cases, the conclusion must inevitably follow that the contravention of section 33 does not render the order of discharge or dismissal void and of no effect. It is also significant to note that if the contravention of sect ion 33 were construed as having an invalidating effect on the order of discharge or dismissal, section 33A would be rendered meaningless and futile, because in that event, the workman would invariably prefer to make an application under section 33C (2) for determination and payment of the wages due to him on the basis that he continues to be in service. If the workman files a complaint under section 33A, he would not be entitled to succeed merely by showing that there is contravention of section 33 and the question whether the order of discharge or dismissal is justified on the merits would be gone into by the Tribunal and if, on the merits, it is found to be justified, it would be sustained as valid despite contravention of section 33, but if, on the other hand, instead of proceeding under section 33A, he makes an application under section 33C(2), it would be enough for him to show contravention of section 33 and he would then be entitled to claim wages, on the basis that the continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under section 33A, the employer would have an opportunity of justifying the order of discharge or dismissal on merits, but if theworkmanproceeds under section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the, whether under section 33A or under section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted, noworkmanwou ld file a complaint under section 33A, but he would always proceed under section 33C(2) and section 33A would be reduced to futility. It is, therefore, impossible to accept the argument that the contravention of section 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to theworkmanfor challenging the order of discharge or dismissal is that provided under section 33A, apart of course from the remedy under secti on 10, and he cannot maintain an application under section 33C(2) for determination and payment of wages on the basis that he continues to be in service. Theworkmancan proceed under section 33C(2) only after the Tribunal has adjudicate d, on a complaint under section 33A or on a reference under section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated thet was urged on behalf of theworkmanth at if this view were taken, it would rob theworkmanof the protection afforded to him under section 33 and the object and purpose of the section would be defeated because the employer would then, with impunity, discharge or dismissworkmanwithout complying with the requirements of section 33. But we do not think this apprehension of theworkmanis well founded. If the employer contravenes the provisions of section 33 and discharges or dismisses aworkmanwithout obtaining per mission or approval of the Tribunal, he would render himself liable to punishment under section 31 (1) and this punishment can extend even to imprisonment. Moreover, the aggrievedworkmanwould not only have the remedy of moving the appropriate Government for making a reference under section 10, but he would also be entitled to make a complaint to the Tribunal under section 33A and on such reference or complaint, the order of discharge or dismissal would be liable to be subjected to a much greater scrutiny than what would be available before a Tribunal exercising the limited jurisdiction conferred under section 33. Theworkmanis thus not left without remedy, though, according to the trade union movement, the remedy p rovided under sections 31, 10 and 33A may not be as adequate as theworkmanmight wish it to be. It is entirely a matter of legislative policy to decide what consequences should flow from contravention of a statutory provision and what remedy shou ld be provided to an aggrievedworkmanin case of such contraventionThis contention of theworkmanis, in our , opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under section 33 (2) (h) with its dismissal on merits. Where the Tribunal entertains an application for approval under section 33 (2) (b) on merits, it applies its mind and considers whether the dismissal of theworkmanamounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the
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Raj Narain Pandey & Ors Vs. Sant Prasad Tewari & Ors | Court in the case of AIR 1944 All 25 (supra) and found that the following five propositions had been laid down in the earlier case:"(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.(2) That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee.(3) That a mortgagee of an occupancy holding by remaining in possession for over 12 years does not extinguish the rights of the mortgagor to redeem him and by such possession the mortgagee only prescribes for mortgagee rights.(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit.(5) The relationship which comes into existence as a result of the mortgage of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mortgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit."It was also observed that to take a contrary view from the law laid down in those five propositions would have the effect of unsettling the law established for a number of years. Mr. Agarwal has not questioned the correctness of the above mentioned five propositions and, in our opinion, rightly so. In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M. R. in the case of Brownsea Haven Properties v. Poole Coron. (1958) Ch 574, there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior could not strictly bound itself by the decision.9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604 (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view.11 | 0[ds]9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604 (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view. | 0 | 2,877 | 658 | ### 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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Court in the case of AIR 1944 All 25 (supra) and found that the following five propositions had been laid down in the earlier case:"(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.(2) That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee.(3) That a mortgagee of an occupancy holding by remaining in possession for over 12 years does not extinguish the rights of the mortgagor to redeem him and by such possession the mortgagee only prescribes for mortgagee rights.(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit.(5) The relationship which comes into existence as a result of the mortgage of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mortgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit."It was also observed that to take a contrary view from the law laid down in those five propositions would have the effect of unsettling the law established for a number of years. Mr. Agarwal has not questioned the correctness of the above mentioned five propositions and, in our opinion, rightly so. In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M. R. in the case of Brownsea Haven Properties v. Poole Coron. (1958) Ch 574, there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior could not strictly bound itself by the decision.9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604 (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view.11
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9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604 (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view.
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SREI EQUIPMENT FINANCE LIMITED Vs. RAJEEV ANAND & ORS | loans of Rs. 18.86 crores by an agreement dated 01.04.2016, and the second being a loan of Rs.16.80 crores by agreement dated 24.06.2016, with an interest figure of Rs.2.72 crores, the total amount coming to Rs.38.39 crores. 3. To this section 7 application, a counter affidavit was filed by the corporate debtor on 15.05.2017, in which it was stated that though Rs.35.66 crores have become due, yet a section 7 application was premature inasmuch as instalment payments that were agreed upon had not yet matured. It was on this basis that this first application was withdrawn by the appellant on 30.05.2017 with liberty to file a fresh application. 4. A fresh application was filed on 04.08.2017, in which it was claimed that insofar as the 01.04.2016 loan was concerned, the figure of Rs.21.41 crores was still outstanding. The corporate debtor now filed a counter affidavit in which it denied this and stated that, as a matter of fact, from 2008 till date, an amount of Rs.65.60 crores have been repaid by it. A supplementary affidavit was filed by the appellant dated 06.06.2018 which, owing to technical defects, was rejected. A second supplementary affidavit of 03.08.2018 was therefore filed, replacing this affidavit, in which it was explained that, as a matter of fact, the corporate debtor has made payment of Rs.18,86,00,000/- on 13.04.2016 and 16.04.2016, and thereafter of Rs.16,80,62,000/- from 05.07.2016 and 19.07.2016, as would be evident from pages 11 & 12 of the counter affidavit filed on behalf of the corporate debtor. Thus, the sum of Rs.35,66,62,000/- which has been paid by the corporate debtor to the appellant is on account of its previous outstanding of Rs.35,66,61,986/- which was outstanding on the part of the corporate debtor as on 31.03.2016 as was unconditionally and unequivocally admitted by the corporate debtor in its counter affidavit filed by it in the prior proceeding (I.B. No. 54(PB)/2017). A sum of Rs.18,86,00,000/-, disbursed to the corporate debtor by the appellant on 01.04.2016, is still due and payable to it. 5. On this pleading, the NCLT finally held: 21. The Corporate Debtor in the previous round of litigation had candidly admitted the restructuring of the total loan amount of Rs.35,66,61,986 by way of executing two contracts firstly being Agreement bearing No. 105996 dated 01.04.2016 for facility of Rs.18,86,00,000/- and secondly being Agreement bearing No. 111305 dated 24.06.2016 for facility of Rs.19,53,00,000/- as detailed in preceding para 5 of the order. It is also evident from a perusal of supplementary affidavit dated 03.08.2018 read with a copy of confirmation of transaction (Annexure-B) that a sum of Rs.18,86,00,000/- was further disbursed by the Petitioner on 13.04.2016 to the Respondent after the aforesaid candid admission by it and the said amount is an independent transaction and having no relevancy with the previous one. It does not lie in the mouth of the Corporate Debtor to take a contrary stand and principles in the nature of estoppel would come in play. As a result thereof, the NCLT admitted the application and appointed a Resolution Professional. A Committee of Creditors was also thereafter appointed. 6. The impugned judgment referred to the NCLT order and then held as follows: 19. Thus, it is clear that document which was already rejected by the Adjudicating Authority, has been made the basis for passing the Order of Admission, which is not permissible under law. 20. Based on loan Agreement dated 1st April 2016 the amount Rs. 18,86,00,000/- was disbursed. The bank certificate filed by Corporate Debtor shows that while amount has been returned back. But the finding of the Adjudicating Authority that a sum of Rs.18,86,00,000/-was again disbursed to the Corporate Debtor is not supported by any evidence. The Corporate Debtor has filed the document to prove that he has repaid the said amount through RTGS transfer to the account of the Financial Creditor. 21. During the argument, it is admitted by the parties that previous petition filed by the Financial Creditor was withdrawn. The document(s) filed in the earlier petition, which was dismissed as withdrawn, could not have been relied on by the Adjudicating Authority. Therefore, it is clear that finding of the Adjudicating authority that a sum of Rs.18,86,00,000/- was again disbursed to the Corporate Debtor by the Financial Creditor which is still due and payable is erroneous, without any basis and unsustainable. As a result thereof, the NCLAT allowed the appeal and set aside the NCLT order, thereby making it clear that the section 7 application will have to be dismissed. 7. We have heard learned counsel for the parties, including the parties in Civil Appeal No.1911 of 2020 and Civil Appeal No.3112 of 2020. A bare reading of the NCLT order shows that it is only after a perusal of the documents, pleadings, and the supplementary affidavit of 03.08.2018, including the counter affidavit in the earlier section 7 application, that the NCLT came to the conclusion that a loan amount remained outstanding. The NCLAT, when it dealt with the NCLT order, wrongly recorded that documents which were already rejected by the adjudicating authority could not have been the basis of the order of admission. The NCLAT also wrongly recorded that there was no further evidence in support of the fact that any amount was outstanding. Further, the NCLAT also held that a document filed in the earlier petition that was dismissed as withdrawn could not have been relied upon by the adjudicating authority. The NCLAT is wrong on all these counts. As has been stated earlier, documents evidencing an outstanding loan amount were produced; a supplementary affidavit dated 03.08.2018 was also relied upon; and the admission made in the counter affidavit that was made in the first round of litigation, can by no means be described as a document in an earlier petition that could not be relied upon. The document was not a pleading by the appellant - it was a counter affidavit by the corporate debtor in which a clear admission of the debt being outstanding was made. | 1[ds]7. We have heard learned counsel for the parties, including the parties in Civil Appeal No.1911 of 2020 and Civil Appeal No.3112 of 2020. A bare reading of the NCLT order shows that it is only after a perusal of the documents, pleadings, and the supplementary affidavit of 03.08.2018, including the counter affidavit in the earlier section 7 application, that the NCLT came to the conclusion that a loan amount remained outstanding. The NCLAT, when it dealt with the NCLT order, wrongly recorded that documents which were already rejected by the adjudicating authority could not have been the basis of the order of admission. The NCLAT also wrongly recorded that there was no further evidence in support of the fact that any amount was outstanding. Further, the NCLAT also held that a document filed in the earlier petition that was dismissed as withdrawn could not have been relied upon by the adjudicating authority. The NCLAT is wrong on all these counts. As has been stated earlier, documents evidencing an outstanding loan amount were produced; a supplementary affidavit dated 03.08.2018 was also relied upon; and the admission made in the counter affidavit that was made in the first round of litigation, can by no means be described as a document in an earlier petition that could not be relied upon. The document was not a pleading by the appellant - it was a counter affidavit by the corporate debtor in which a clear admission of the debt being outstanding was made. | 1 | 1,193 | 275 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
loans of Rs. 18.86 crores by an agreement dated 01.04.2016, and the second being a loan of Rs.16.80 crores by agreement dated 24.06.2016, with an interest figure of Rs.2.72 crores, the total amount coming to Rs.38.39 crores. 3. To this section 7 application, a counter affidavit was filed by the corporate debtor on 15.05.2017, in which it was stated that though Rs.35.66 crores have become due, yet a section 7 application was premature inasmuch as instalment payments that were agreed upon had not yet matured. It was on this basis that this first application was withdrawn by the appellant on 30.05.2017 with liberty to file a fresh application. 4. A fresh application was filed on 04.08.2017, in which it was claimed that insofar as the 01.04.2016 loan was concerned, the figure of Rs.21.41 crores was still outstanding. The corporate debtor now filed a counter affidavit in which it denied this and stated that, as a matter of fact, from 2008 till date, an amount of Rs.65.60 crores have been repaid by it. A supplementary affidavit was filed by the appellant dated 06.06.2018 which, owing to technical defects, was rejected. A second supplementary affidavit of 03.08.2018 was therefore filed, replacing this affidavit, in which it was explained that, as a matter of fact, the corporate debtor has made payment of Rs.18,86,00,000/- on 13.04.2016 and 16.04.2016, and thereafter of Rs.16,80,62,000/- from 05.07.2016 and 19.07.2016, as would be evident from pages 11 & 12 of the counter affidavit filed on behalf of the corporate debtor. Thus, the sum of Rs.35,66,62,000/- which has been paid by the corporate debtor to the appellant is on account of its previous outstanding of Rs.35,66,61,986/- which was outstanding on the part of the corporate debtor as on 31.03.2016 as was unconditionally and unequivocally admitted by the corporate debtor in its counter affidavit filed by it in the prior proceeding (I.B. No. 54(PB)/2017). A sum of Rs.18,86,00,000/-, disbursed to the corporate debtor by the appellant on 01.04.2016, is still due and payable to it. 5. On this pleading, the NCLT finally held: 21. The Corporate Debtor in the previous round of litigation had candidly admitted the restructuring of the total loan amount of Rs.35,66,61,986 by way of executing two contracts firstly being Agreement bearing No. 105996 dated 01.04.2016 for facility of Rs.18,86,00,000/- and secondly being Agreement bearing No. 111305 dated 24.06.2016 for facility of Rs.19,53,00,000/- as detailed in preceding para 5 of the order. It is also evident from a perusal of supplementary affidavit dated 03.08.2018 read with a copy of confirmation of transaction (Annexure-B) that a sum of Rs.18,86,00,000/- was further disbursed by the Petitioner on 13.04.2016 to the Respondent after the aforesaid candid admission by it and the said amount is an independent transaction and having no relevancy with the previous one. It does not lie in the mouth of the Corporate Debtor to take a contrary stand and principles in the nature of estoppel would come in play. As a result thereof, the NCLT admitted the application and appointed a Resolution Professional. A Committee of Creditors was also thereafter appointed. 6. The impugned judgment referred to the NCLT order and then held as follows: 19. Thus, it is clear that document which was already rejected by the Adjudicating Authority, has been made the basis for passing the Order of Admission, which is not permissible under law. 20. Based on loan Agreement dated 1st April 2016 the amount Rs. 18,86,00,000/- was disbursed. The bank certificate filed by Corporate Debtor shows that while amount has been returned back. But the finding of the Adjudicating Authority that a sum of Rs.18,86,00,000/-was again disbursed to the Corporate Debtor is not supported by any evidence. The Corporate Debtor has filed the document to prove that he has repaid the said amount through RTGS transfer to the account of the Financial Creditor. 21. During the argument, it is admitted by the parties that previous petition filed by the Financial Creditor was withdrawn. The document(s) filed in the earlier petition, which was dismissed as withdrawn, could not have been relied on by the Adjudicating Authority. Therefore, it is clear that finding of the Adjudicating authority that a sum of Rs.18,86,00,000/- was again disbursed to the Corporate Debtor by the Financial Creditor which is still due and payable is erroneous, without any basis and unsustainable. As a result thereof, the NCLAT allowed the appeal and set aside the NCLT order, thereby making it clear that the section 7 application will have to be dismissed. 7. We have heard learned counsel for the parties, including the parties in Civil Appeal No.1911 of 2020 and Civil Appeal No.3112 of 2020. A bare reading of the NCLT order shows that it is only after a perusal of the documents, pleadings, and the supplementary affidavit of 03.08.2018, including the counter affidavit in the earlier section 7 application, that the NCLT came to the conclusion that a loan amount remained outstanding. The NCLAT, when it dealt with the NCLT order, wrongly recorded that documents which were already rejected by the adjudicating authority could not have been the basis of the order of admission. The NCLAT also wrongly recorded that there was no further evidence in support of the fact that any amount was outstanding. Further, the NCLAT also held that a document filed in the earlier petition that was dismissed as withdrawn could not have been relied upon by the adjudicating authority. The NCLAT is wrong on all these counts. As has been stated earlier, documents evidencing an outstanding loan amount were produced; a supplementary affidavit dated 03.08.2018 was also relied upon; and the admission made in the counter affidavit that was made in the first round of litigation, can by no means be described as a document in an earlier petition that could not be relied upon. The document was not a pleading by the appellant - it was a counter affidavit by the corporate debtor in which a clear admission of the debt being outstanding was made.
### Response:
1
### Explanation:
7. We have heard learned counsel for the parties, including the parties in Civil Appeal No.1911 of 2020 and Civil Appeal No.3112 of 2020. A bare reading of the NCLT order shows that it is only after a perusal of the documents, pleadings, and the supplementary affidavit of 03.08.2018, including the counter affidavit in the earlier section 7 application, that the NCLT came to the conclusion that a loan amount remained outstanding. The NCLAT, when it dealt with the NCLT order, wrongly recorded that documents which were already rejected by the adjudicating authority could not have been the basis of the order of admission. The NCLAT also wrongly recorded that there was no further evidence in support of the fact that any amount was outstanding. Further, the NCLAT also held that a document filed in the earlier petition that was dismissed as withdrawn could not have been relied upon by the adjudicating authority. The NCLAT is wrong on all these counts. As has been stated earlier, documents evidencing an outstanding loan amount were produced; a supplementary affidavit dated 03.08.2018 was also relied upon; and the admission made in the counter affidavit that was made in the first round of litigation, can by no means be described as a document in an earlier petition that could not be relied upon. The document was not a pleading by the appellant - it was a counter affidavit by the corporate debtor in which a clear admission of the debt being outstanding was made.
|
Tamil Nadu Kalyana Mandapam Association Vs. Union Of India | cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. A customer goes to a mandap-keeper, say a star hotel, not merely for the food that they will provide but for the entire variety of services provided therein which result in providing the function to be solemnized with the required effect and ambience. Similarly the services rendered by out door caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/ eatables / drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customers choice of foods is limited to the menu card. Again in the case of outdoor catering, customer is at liberty to choose the time and place where the food is to be served. In the case of an outdoor caterer, the customer negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service elements is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant. Though the Service Tax is leviable on the gross amount charged by the mandap-keeper for services in relation to the use of a mandap and also on the charges for catering the Government has decided to charge the same only on 60% of the gross amount charged by the mandap-keeper to the customer. 57. In the case of Addition Advertising vs. Union of India (1998 (98) E.L.T. 14 (Guj. HC DB), the High Court of Gujarat rejected the contention that levy of tax on advertising services is ultra vires and observed that the tax is not on advertisement but on the services rendered. It results in an advertisement which can be published and republished and copied". Extending the same analogy, it is submitted that there is a difference between the food and beverages supplied by outdoor caterers and outdoor catering services. As a result of the outdoor catering services rendered, the food and beverages desired by the customer, are caused to be prepared or procured, transported to the place specified by the customer at the time desired by him and served in the manner required. Therefore, the contention of the appellant that there is no service element in outdoor catering is not based on fact. In such catering services the person who participate and avail the service give more importance to the manner of service than the quality of food provided for consumption. 58. A tax on services rendered by mandap-keepers and outdoor caterers is in pith and substance, a tax on services and not a tax on sale of goods or on hire purchase activities. Section 65 clause 41 sub clause (p) of the Finances Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any service provided to a customer by a mandap-keeper in relation to use of a mandap in any manner including the facilities provided to a customer in relation to such use also the services, if any, rendered as a caterer. The nature and character of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Articles 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers. 59. The impugned Act was challenged on the ground that it infringed on the States power to levy tax on luxury vide Entry 62 of the State List. 60. It would be appropriate to quote Mr. Justice Venkatachelliah who ruled that the law with respect to a subject might incidentally affect another subject in some way, but that it not the same thing as the law being on the latter subject. The might be overlapping but the overlapping must be in law. The transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detect from the distinctiveness of the aspects. The consequences and facts of the legislation are not the same thing as legislative subject matter." 61. For the foregoing reasons, the appellants have not made out any case either on facts or on law and there is no merit in this appeal. | 0[ds]With regard to the first aspect, it is submitted that in order to constitute a tax on land, it must b a tax directly on land and a tax on income from land cannot come within the purview of the saidour view, if no Entry is found in List 2 and List 3 of the Schedule which could cover the tax levied, the question of Parliament lacking legislative competence to do so would not arise. Tax on catering services does not amount to tax on sale & purchase of goods43. As far as the above points is concerned, it is well settled that for the tax to amount to a tax on sale of goods, it must amount to a sale according to the established concept of a sale in the law of contract or more precisely the sale of Goods Act, 1930. Legislature cannot enlarge the definition of sale so as to bring within the ambit of taxation transactions, which could not be a sale in law.In regard to the submission made on Article 366(29A)(f), we are of the view that it does not provide to the contrary. It only permits the State to impose a tax on the supply of food and drink by whatever mode it may be made. It does not conceptually or otherwise includes the supply to services within the definition of sale and purchase of goods. This is particularly apparent from the following phrase contained in the said sub-article such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods". In other words, the operative words of the said sub-article is supply of goods and it is only supply of food and drinks and other articles for human consumption that is deemed to be a sale or purchase of goods.45. The concept of catering admittedly includes the concept of rendering service.Mohan Parasaran, learned senior counsel for the appellant submitted that the High Court before applying the aspect theory laid down by this Court in the case of Federation of Hotel and Restaurant vs. Union of India and others (supra) ought to have appreciated that in that matter Article 366 (29A) (f) of the Constitution was not considered which is of vital importance to the present matter and that the High Court ought to have differentiated the two matters. In reply, our attention was invited to paras 31 and 32 of the judgment of the High Court in which service aspect was distinguished from the supply aspect. In our view, reliance placed by the High Court on Federation of Hotel and Restaurant (supra) and, in particular, on the aspect theory, is therefore, apposite and should be upheld by this Court. In view of this, the contention of the appellant on this aspect is not well founded.65 clause 41 sub clause (p) of the Finances Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any service provided to a customer by a mandap-keeper in relation to use of a mandap in any manner including the facilities provided to a customer in relation to such use also the services, if any, rendered as a caterer. The nature and character of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Articles 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers.59. The impugned Act was challenged on the ground that it infringed on the States power to levy tax on luxury vide Entry 62 of the State List.60. It would be appropriate to quote Mr. Justice Venkatachelliah who ruled that the law with respect to a subject might incidentally affect another subject in some way, but that it not the same thing as the law being on the latter subject. The might be overlapping but the overlapping must be in law. The transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detect from the distinctiveness of the aspects. The consequences and facts of the legislation are not the same thing as legislative subject matter."61. For the foregoing reasons, the appellants have not made out any case either on facts or on law and there is no merit in this appeal. We, therefore, have no hesitation in dismissing this appeal by confirming the judgment of the High Court for our own reasons recorded in this judgment. No costs. | 0 | 8,835 | 1,073 | ### 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:
cannot possibly be termed as a hire purchase agreement of a right to use goods or property. The services provided by a mandap-keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. A customer goes to a mandap-keeper, say a star hotel, not merely for the food that they will provide but for the entire variety of services provided therein which result in providing the function to be solemnized with the required effect and ambience. Similarly the services rendered by out door caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/ eatables / drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customers choice of foods is limited to the menu card. Again in the case of outdoor catering, customer is at liberty to choose the time and place where the food is to be served. In the case of an outdoor caterer, the customer negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service elements is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant. Though the Service Tax is leviable on the gross amount charged by the mandap-keeper for services in relation to the use of a mandap and also on the charges for catering the Government has decided to charge the same only on 60% of the gross amount charged by the mandap-keeper to the customer. 57. In the case of Addition Advertising vs. Union of India (1998 (98) E.L.T. 14 (Guj. HC DB), the High Court of Gujarat rejected the contention that levy of tax on advertising services is ultra vires and observed that the tax is not on advertisement but on the services rendered. It results in an advertisement which can be published and republished and copied". Extending the same analogy, it is submitted that there is a difference between the food and beverages supplied by outdoor caterers and outdoor catering services. As a result of the outdoor catering services rendered, the food and beverages desired by the customer, are caused to be prepared or procured, transported to the place specified by the customer at the time desired by him and served in the manner required. Therefore, the contention of the appellant that there is no service element in outdoor catering is not based on fact. In such catering services the person who participate and avail the service give more importance to the manner of service than the quality of food provided for consumption. 58. A tax on services rendered by mandap-keepers and outdoor caterers is in pith and substance, a tax on services and not a tax on sale of goods or on hire purchase activities. Section 65 clause 41 sub clause (p) of the Finances Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any service provided to a customer by a mandap-keeper in relation to use of a mandap in any manner including the facilities provided to a customer in relation to such use also the services, if any, rendered as a caterer. The nature and character of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Articles 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers. 59. The impugned Act was challenged on the ground that it infringed on the States power to levy tax on luxury vide Entry 62 of the State List. 60. It would be appropriate to quote Mr. Justice Venkatachelliah who ruled that the law with respect to a subject might incidentally affect another subject in some way, but that it not the same thing as the law being on the latter subject. The might be overlapping but the overlapping must be in law. The transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detect from the distinctiveness of the aspects. The consequences and facts of the legislation are not the same thing as legislative subject matter." 61. For the foregoing reasons, the appellants have not made out any case either on facts or on law and there is no merit in this appeal.
### Response:
0
### Explanation:
With regard to the first aspect, it is submitted that in order to constitute a tax on land, it must b a tax directly on land and a tax on income from land cannot come within the purview of the saidour view, if no Entry is found in List 2 and List 3 of the Schedule which could cover the tax levied, the question of Parliament lacking legislative competence to do so would not arise. Tax on catering services does not amount to tax on sale & purchase of goods43. As far as the above points is concerned, it is well settled that for the tax to amount to a tax on sale of goods, it must amount to a sale according to the established concept of a sale in the law of contract or more precisely the sale of Goods Act, 1930. Legislature cannot enlarge the definition of sale so as to bring within the ambit of taxation transactions, which could not be a sale in law.In regard to the submission made on Article 366(29A)(f), we are of the view that it does not provide to the contrary. It only permits the State to impose a tax on the supply of food and drink by whatever mode it may be made. It does not conceptually or otherwise includes the supply to services within the definition of sale and purchase of goods. This is particularly apparent from the following phrase contained in the said sub-article such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods". In other words, the operative words of the said sub-article is supply of goods and it is only supply of food and drinks and other articles for human consumption that is deemed to be a sale or purchase of goods.45. The concept of catering admittedly includes the concept of rendering service.Mohan Parasaran, learned senior counsel for the appellant submitted that the High Court before applying the aspect theory laid down by this Court in the case of Federation of Hotel and Restaurant vs. Union of India and others (supra) ought to have appreciated that in that matter Article 366 (29A) (f) of the Constitution was not considered which is of vital importance to the present matter and that the High Court ought to have differentiated the two matters. In reply, our attention was invited to paras 31 and 32 of the judgment of the High Court in which service aspect was distinguished from the supply aspect. In our view, reliance placed by the High Court on Federation of Hotel and Restaurant (supra) and, in particular, on the aspect theory, is therefore, apposite and should be upheld by this Court. In view of this, the contention of the appellant on this aspect is not well founded.65 clause 41 sub clause (p) of the Finances Act, 1994, defines the taxable service (which is the subject matter of levy of service tax) as any service provided to a customer by a mandap-keeper in relation to use of a mandap in any manner including the facilities provided to a customer in relation to such use also the services, if any, rendered as a caterer. The nature and character of this service tax is evident from the fact that the transaction between a mandap-keeper and his customer is definitely not in the nature of a sale of hire purchase of goods. It is essentially that of providing a service. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Articles 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Government have powers to make laws. The service tax is made by Parliament under the above residuary powers.59. The impugned Act was challenged on the ground that it infringed on the States power to levy tax on luxury vide Entry 62 of the State List.60. It would be appropriate to quote Mr. Justice Venkatachelliah who ruled that the law with respect to a subject might incidentally affect another subject in some way, but that it not the same thing as the law being on the latter subject. The might be overlapping but the overlapping must be in law. The transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detect from the distinctiveness of the aspects. The consequences and facts of the legislation are not the same thing as legislative subject matter."61. For the foregoing reasons, the appellants have not made out any case either on facts or on law and there is no merit in this appeal. We, therefore, have no hesitation in dismissing this appeal by confirming the judgment of the High Court for our own reasons recorded in this judgment. No costs.
|
Bharat Sanchar Nigam Limited and Ors Vs. Babu V. and Ors | that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard.7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc. In the aforesaid backdrop, the limited judicial exercise that would be called for would be to examine as to whether the rights of the incumbents in the said two cadres including the right for consideration of promotion has been affected in any substantial manner by the order dated 18.05.2004 declaring the two cadres as "Wasting Cadre".8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions.9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer.10. Following the decision to declare the two cadres as Wasting Cadre dated 18.05.2004, the 2002 Rules were amended on 19th January, 2005 by giving an additional quota of 10% to the Junior and Senior Accountants for promotion to the post of Junior Accounts Officer. Insofar as this segment i.e. 10% is concerned, the requirement of being a graduate was dispensed with by the amendment and the stipulation with regard to 10 years of service was altered to 5 years. The requirement of passing the screening test also stood withdrawn. The 40% quota under the 2002 Rules continued in the same form both for the Junior and Senior Accountants. The remaining 50% of the posts of Junior Accounts Officer, like before, was required to be filled up by direct requirement.11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditions.12. Consequential changes following the declaration of Wasting Cadre was bound to follow. The question is whether such consequential changes are so adverse to the interests of the serving and continuing Junior Accountants and Senior Accountants that the same could offend the prospects and chances of fair consideration of their cases for career progression. If the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting Cadre.13. An issue has been raised by the learned Counsel for the Respondents that the situation on the ground is quite different in view of the meagre number of posts that would be available against the additional 10% quota. While the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redress.14. An issue has been struck by the learned Counsel for the Respondents as to whether the 2005 Rules amending the 2002 Rules could have been given effect to without the approval of the Board. From the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of law. | 1[ds]6. The order declaring the two cadres as Wasting Cadre and the additional affidavit dated 14.03.2018 filed by the Appellants before the Court makes it clear that the decision to declare the cadres in question as Wasting Cadre was taken to avoid multiplicity of cadres; to avoid continuance of isolated cadres in different streams and to have better efficiency in administration. This is a fundamental aspect that has to be borne in mind before proceeding any further coupled with the undisputed position in law that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditionsIf the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting CadreWhile the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redressFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of lawFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of | 1 | 1,484 | 966 | ### 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:
that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard.7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc. In the aforesaid backdrop, the limited judicial exercise that would be called for would be to examine as to whether the rights of the incumbents in the said two cadres including the right for consideration of promotion has been affected in any substantial manner by the order dated 18.05.2004 declaring the two cadres as "Wasting Cadre".8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions.9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer.10. Following the decision to declare the two cadres as Wasting Cadre dated 18.05.2004, the 2002 Rules were amended on 19th January, 2005 by giving an additional quota of 10% to the Junior and Senior Accountants for promotion to the post of Junior Accounts Officer. Insofar as this segment i.e. 10% is concerned, the requirement of being a graduate was dispensed with by the amendment and the stipulation with regard to 10 years of service was altered to 5 years. The requirement of passing the screening test also stood withdrawn. The 40% quota under the 2002 Rules continued in the same form both for the Junior and Senior Accountants. The remaining 50% of the posts of Junior Accounts Officer, like before, was required to be filled up by direct requirement.11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditions.12. Consequential changes following the declaration of Wasting Cadre was bound to follow. The question is whether such consequential changes are so adverse to the interests of the serving and continuing Junior Accountants and Senior Accountants that the same could offend the prospects and chances of fair consideration of their cases for career progression. If the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting Cadre.13. An issue has been raised by the learned Counsel for the Respondents that the situation on the ground is quite different in view of the meagre number of posts that would be available against the additional 10% quota. While the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redress.14. An issue has been struck by the learned Counsel for the Respondents as to whether the 2005 Rules amending the 2002 Rules could have been given effect to without the approval of the Board. From the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of law.
### Response:
1
### Explanation:
6. The order declaring the two cadres as Wasting Cadre and the additional affidavit dated 14.03.2018 filed by the Appellants before the Court makes it clear that the decision to declare the cadres in question as Wasting Cadre was taken to avoid multiplicity of cadres; to avoid continuance of isolated cadres in different streams and to have better efficiency in administration. This is a fundamental aspect that has to be borne in mind before proceeding any further coupled with the undisputed position in law that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditionsIf the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting CadreWhile the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redressFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of lawFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of
|
The Indian Aluminium Co. Ltd Vs. The Commissioner of Income-tax, West Bengal I, Calcutta | be, and in the cases specified in sub-section (3D) the company of which he is the principal officer shall, without prejudice to any other consequences which he or it may incur, be deemed to lie an assessee in default in respect of the tax."Provided that. . . ." Now the Act contains provisions for collecting taxes in two modes; one is by direct levy and the other is by means of deduction at the source Section 18 provides for deduction in cases inter alia of "Salaries", "Interest on securities", "Dividends", interest and other sums chargeable under the Act and paid to non-residents. There is no dispute that in the present case the assessee was bound under sub-s. (3-B) to deduct the sum chargeable under the provisions of the Act at the time of payment of the retainer fees to the Montreal Company. Under sub-s. (7) if the assessee did not deduct the amount of tax as required under the section it was to be deemed to be in default in respect of the tax. The argument raised on behalf of the appellant is that the Montreal Company refused to reimburse it for the payment of the amount in question for the reasons stated in the letter dated August 3, 1954. It was stated in this letter that the Montreal Company was not contractually bound to meet the obligation of Indian tax liability. The concluding portion of the letter was as follows:Again this involves a question of principle for us. If every State to which we have to render technical assistancee, based on the researches carried on by us in our plant and laboratories, starts demanding income tax and super tax on our charges, no such State could ever receive any technical assistance at all and we ourselves could hardly afford to render such technical assistance and the expensive taxes involved. We have given this matter our serious consideration and cannot bring ourselves on any score, equitable, legal contractual, or moral to reimburse to you any monies you may have to pay to the Indian-taxing Authorities.4. The claim of the assessee principally is two fold It is maintained firstly that after the refusal of the Mortreal Company in the matter of reimbursement the amount of Rupees 1,24,199/- was written off as a bad and irrecoverable debt. It was, therefore, deductible under S. 10 (2) (xi) of the Act. In the section the debt certainly means something more than a mere advance. It is something which is related to business or results from it. To be claimable as a bad and irrecoverable debt it must first be shown as a proper debt. (Vide A. V. Thomas and Co. Ltd. v. Commissioner of Income tax, (1963) 48 ITR 67 at p. 75 (SC). ) It is well settled that a business or trading debt should spring directly from the carrying on of a business or trade and should be incidental to it and it cannot be just any loss sustained by the assessee even if it has some connection with his business.5. Although it is true that the retainer fees were paid by the assessee to the Montreal Company for technical assistance which had a connection with the business of the assessee but it is not possible to regard the amount which the assessee was bound to deduct from the total payment made to the Montreal Company under S. 18 (3-B) of the Act and which it failed to recover from that company as a debt which could be deducted under S. 10 (2) (xi). The debt was not incidental to the business because it, arose out of non-compliance with the provisions of the Act. The payment which the assessee made to the income tax authorities and which it failed to recover from the Montreal Company was more a matter of commercial expediency and proceeded out of motives of business relationship because the assessee was anxious not to annoy or offend the Montreal Company so as to avail of its continued technical assistance and advice.Indeed the argument on behalf of the appellant has rested a great deal on this aspect of the matter and it has been urged strenuously that the assessee could not afford to displease the Montreal Company as it stood greatly in need of the latters technical assistance.6. Secondly the question is whether the assessee could claim deduction under S. 10 (2) (xv) of the Act. For that purpose the assessee had to establish that the amount in question had been wholly and exclusively laid out for the purpose of its business. Our attention has been invited to a decision of the Bombay High Court in Commissioner of Income tax, Bombay v. M/s Pannalal Narotamdas and Co. Bombay (1969) 1 ITJ 32 (Bom) in which it was held that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Authorities could be regarded as wholly and exclusively incurred for the purpose of his business. We consider it unnecessary to pronounce on the correctness of this decision. The point which came up for consideration there was altogether different and it can afford no assistance to us in determining whether an amount which an assessee had to pay by virtue of the provisions of the Act could be regarded as an expense incurred wholly and exclusively for the purpose of the business. The assessee was presumed to know the relevant provisions of the Act at the time when it entered into an agreement with the Montreal Company. There was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessee to make payment of the taxes deductible under S. 18 (3-B). At any rate it is difficult to understand how a payment made under a statutory obligation, because the assessee was in default, could constitute expenditure laid out for the purpose of the assessees business. | 0[ds]4. The claim of the assessee principally is two fold It is maintained firstly that after the refusal of the Mortreal Company in the matter of reimbursement the amount of Rupees 1,24,199/- was written off as a bad and irrecoverable debt. It was, therefore, deductible under S. 10 (2) (xi) of the Act. In the section the debt certainly means something more than a mere advance. It is something which is related to business or results from it. To be claimable as a bad and irrecoverable debt it must first be shown as a proper debt. (Vide A. V. Thomas and Co. Ltd. v. Commissioner of Income tax, (1963) 48 ITR 67 at p. 75 (SC). ) It is well settled that a business or trading debt should spring directly from the carrying on of a business or trade and should be incidental to it and it cannot be just any loss sustained by the assessee even if it has some connection with his business.5. Although it is true that the retainer fees were paid by the assessee to the Montreal Company for technical assistance which had a connection with the business of the assessee but it is not possible to regard the amount which the assessee was bound to deduct from the total payment made to the Montreal Company under S. 18 (3-B) of the Act and which it failed to recover from that company as a debt which could be deducted under S. 10 (2) (xi). The debt was not incidental to the business because it, arose out of non-compliance with the provisions of the Act. The payment which the assessee made to the income tax authorities and which it failed to recover from the Montreal Company was more a matter of commercial expediency and proceeded out of motives of business relationship because the assessee was anxious not to annoy or offend the Montreal Company so as to avail of its continued technical assistance and advice.Indeed the argument on behalf of the appellant has rested a great deal on this aspect of the matter and it has been urged strenuously that the assessee could not afford to displease the Montreal Company as it stood greatly in need of the latters technicalthat purpose the assessee had to establish that the amount in question had been wholly and exclusively laid out for the purpose of its business. Our attention has been invited to a decision of the Bombay High Court in Commissioner of Income tax, Bombay v. M/s Pannalal Narotamdas and Co. Bombay (1969) 1 ITJ 32 (Bom) in which it was held that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Authorities could be regarded as wholly and exclusively incurred for the purpose of his business. We consider it unnecessary to pronounce on the correctness of this decision. The point which came up for consideration there was altogether different and it can afford no assistance to us in determining whether an amount which an assessee had to pay by virtue of the provisions of the Act could be regarded as an expense incurred wholly and exclusively for the purpose of the business. The assessee was presumed to know the relevant provisions of the Act at the time when it entered into an agreement with the Montreal Company. There was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessee to make payment of the taxes deductible under S. 18 (3-B). At any rate it is difficult to understand how a payment made under a statutory obligation, because the assessee was in default, could constitute expenditure laid out for the purpose of the assessees business. | 0 | 2,124 | 685 | ### 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:
be, and in the cases specified in sub-section (3D) the company of which he is the principal officer shall, without prejudice to any other consequences which he or it may incur, be deemed to lie an assessee in default in respect of the tax."Provided that. . . ." Now the Act contains provisions for collecting taxes in two modes; one is by direct levy and the other is by means of deduction at the source Section 18 provides for deduction in cases inter alia of "Salaries", "Interest on securities", "Dividends", interest and other sums chargeable under the Act and paid to non-residents. There is no dispute that in the present case the assessee was bound under sub-s. (3-B) to deduct the sum chargeable under the provisions of the Act at the time of payment of the retainer fees to the Montreal Company. Under sub-s. (7) if the assessee did not deduct the amount of tax as required under the section it was to be deemed to be in default in respect of the tax. The argument raised on behalf of the appellant is that the Montreal Company refused to reimburse it for the payment of the amount in question for the reasons stated in the letter dated August 3, 1954. It was stated in this letter that the Montreal Company was not contractually bound to meet the obligation of Indian tax liability. The concluding portion of the letter was as follows:Again this involves a question of principle for us. If every State to which we have to render technical assistancee, based on the researches carried on by us in our plant and laboratories, starts demanding income tax and super tax on our charges, no such State could ever receive any technical assistance at all and we ourselves could hardly afford to render such technical assistance and the expensive taxes involved. We have given this matter our serious consideration and cannot bring ourselves on any score, equitable, legal contractual, or moral to reimburse to you any monies you may have to pay to the Indian-taxing Authorities.4. The claim of the assessee principally is two fold It is maintained firstly that after the refusal of the Mortreal Company in the matter of reimbursement the amount of Rupees 1,24,199/- was written off as a bad and irrecoverable debt. It was, therefore, deductible under S. 10 (2) (xi) of the Act. In the section the debt certainly means something more than a mere advance. It is something which is related to business or results from it. To be claimable as a bad and irrecoverable debt it must first be shown as a proper debt. (Vide A. V. Thomas and Co. Ltd. v. Commissioner of Income tax, (1963) 48 ITR 67 at p. 75 (SC). ) It is well settled that a business or trading debt should spring directly from the carrying on of a business or trade and should be incidental to it and it cannot be just any loss sustained by the assessee even if it has some connection with his business.5. Although it is true that the retainer fees were paid by the assessee to the Montreal Company for technical assistance which had a connection with the business of the assessee but it is not possible to regard the amount which the assessee was bound to deduct from the total payment made to the Montreal Company under S. 18 (3-B) of the Act and which it failed to recover from that company as a debt which could be deducted under S. 10 (2) (xi). The debt was not incidental to the business because it, arose out of non-compliance with the provisions of the Act. The payment which the assessee made to the income tax authorities and which it failed to recover from the Montreal Company was more a matter of commercial expediency and proceeded out of motives of business relationship because the assessee was anxious not to annoy or offend the Montreal Company so as to avail of its continued technical assistance and advice.Indeed the argument on behalf of the appellant has rested a great deal on this aspect of the matter and it has been urged strenuously that the assessee could not afford to displease the Montreal Company as it stood greatly in need of the latters technical assistance.6. Secondly the question is whether the assessee could claim deduction under S. 10 (2) (xv) of the Act. For that purpose the assessee had to establish that the amount in question had been wholly and exclusively laid out for the purpose of its business. Our attention has been invited to a decision of the Bombay High Court in Commissioner of Income tax, Bombay v. M/s Pannalal Narotamdas and Co. Bombay (1969) 1 ITJ 32 (Bom) in which it was held that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Authorities could be regarded as wholly and exclusively incurred for the purpose of his business. We consider it unnecessary to pronounce on the correctness of this decision. The point which came up for consideration there was altogether different and it can afford no assistance to us in determining whether an amount which an assessee had to pay by virtue of the provisions of the Act could be regarded as an expense incurred wholly and exclusively for the purpose of the business. The assessee was presumed to know the relevant provisions of the Act at the time when it entered into an agreement with the Montreal Company. There was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessee to make payment of the taxes deductible under S. 18 (3-B). At any rate it is difficult to understand how a payment made under a statutory obligation, because the assessee was in default, could constitute expenditure laid out for the purpose of the assessees business.
### Response:
0
### Explanation:
4. The claim of the assessee principally is two fold It is maintained firstly that after the refusal of the Mortreal Company in the matter of reimbursement the amount of Rupees 1,24,199/- was written off as a bad and irrecoverable debt. It was, therefore, deductible under S. 10 (2) (xi) of the Act. In the section the debt certainly means something more than a mere advance. It is something which is related to business or results from it. To be claimable as a bad and irrecoverable debt it must first be shown as a proper debt. (Vide A. V. Thomas and Co. Ltd. v. Commissioner of Income tax, (1963) 48 ITR 67 at p. 75 (SC). ) It is well settled that a business or trading debt should spring directly from the carrying on of a business or trade and should be incidental to it and it cannot be just any loss sustained by the assessee even if it has some connection with his business.5. Although it is true that the retainer fees were paid by the assessee to the Montreal Company for technical assistance which had a connection with the business of the assessee but it is not possible to regard the amount which the assessee was bound to deduct from the total payment made to the Montreal Company under S. 18 (3-B) of the Act and which it failed to recover from that company as a debt which could be deducted under S. 10 (2) (xi). The debt was not incidental to the business because it, arose out of non-compliance with the provisions of the Act. The payment which the assessee made to the income tax authorities and which it failed to recover from the Montreal Company was more a matter of commercial expediency and proceeded out of motives of business relationship because the assessee was anxious not to annoy or offend the Montreal Company so as to avail of its continued technical assistance and advice.Indeed the argument on behalf of the appellant has rested a great deal on this aspect of the matter and it has been urged strenuously that the assessee could not afford to displease the Montreal Company as it stood greatly in need of the latters technicalthat purpose the assessee had to establish that the amount in question had been wholly and exclusively laid out for the purpose of its business. Our attention has been invited to a decision of the Bombay High Court in Commissioner of Income tax, Bombay v. M/s Pannalal Narotamdas and Co. Bombay (1969) 1 ITJ 32 (Bom) in which it was held that the amount of penalty imposed not for the fault of the assessee but because he had to pay the same for the purpose of getting the goods released from the Customs Authorities could be regarded as wholly and exclusively incurred for the purpose of his business. We consider it unnecessary to pronounce on the correctness of this decision. The point which came up for consideration there was altogether different and it can afford no assistance to us in determining whether an amount which an assessee had to pay by virtue of the provisions of the Act could be regarded as an expense incurred wholly and exclusively for the purpose of the business. The assessee was presumed to know the relevant provisions of the Act at the time when it entered into an agreement with the Montreal Company. There was no provision in the agreement with the Montreal Company which created a contractual obligation on the assessee to make payment of the taxes deductible under S. 18 (3-B). At any rate it is difficult to understand how a payment made under a statutory obligation, because the assessee was in default, could constitute expenditure laid out for the purpose of the assessees business.
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M/S Bhs Industries Vs. Export Credit Guarantee Corp | Ltd., an instrumentality of State, had repudiated the claim of the claimant against which a writ petition was filed before the learned Single Judge of the Calcutta High Court praying for quashment of the repudiation. The learned Single Judge after hearing parties came to the conclusion that the dispute between the parties arose out of a contract of insurance and the first respondent being a State for the purpose of Article 12, was bound by the terms of the contract and accordingly allowed the writ petition. In intra-court appeal the Division Bench opined that the claim of the writ petitioner involved disputed questions of fact and hence, could not be adjudicated in a writ proceeding under Article 226 of the Constitution. However, it proceeded to state that the learned Single Judge had erroneously applied the law and further came to hold that the insured had violated certain terms of the contract. This Court referred to number of decisions as regards the maintainability of the writ petition and expressed the view that merely because one of the parties to the litigation raises a dispute in regards to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. After so holding the Court opined once the State or instrumentality is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India, and therefore, being the instrumentality of the State, the Corporation had acted in contravention of the requirements of Article 14, and hence, the writ court could issue appropriate writ to nullify the arbitrary action. The court referred to relevant Clauses of contract of insurance in the background of admitted facts. The contract of insurance between the insured and insurer was primarily based on the contract between exporter and the Kazak Corporation. The relevant Clause in regard to payment of the tea exported was incorporated in Clause 6. The said Clause came to be amended on the very same day when the contract was signed by the exporter and the Kazak Corporation by way of an addendum. The Court opined the addendum in the obtaining facts therein had become an integral part of the original Clause 6 of the Contract. The Court further proceeded to deal with the Clauses in the agreement and held that alternative modes of payment of consideration were permissible as per Clause 6. In that context the Court further opined:- “The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum, therefore, without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy, it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk, that is: (i) there should be a default on the part of the Kazak Corporation to pay for the goods received; and (ii) there should be a failure on the part of the Kazakhstan Government to fulfil their guarantee.” After so stating the court ruled that there was no violation of the stipulations of the contract by the insured. While dealing with the grant of relief the court referred to the decision in Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212 ) and held thus:- “53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of the State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs. 16 lakhs. On facts we have found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when the Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner.” 29. Mr. Gupta learned senior counsel has laid immense emphasis on the aforequoted paragraph. We have analysed the decision to appreciate the context and the factual score as depicted in the decision which clearly show that the court had arrived at indubitable conclusion that there had been no violation of the terms of the contract of insurance. Therefore, the said decision in our considered opinion is not applicable to the facts of the present case as in the instant case, as has been held earlier, there have been violations of the terms and conditions of the contract of insurance. We are compelled to observe that the said decision possibly has been cited as an authority as the respondent-corporation was also the respondent therein. | 0[ds]7. On a scrutiny of facts, it is clear as crystal that one consignment of Rs.6,50,000/was sent to M/s. Treasures of India on 15.7.1999 and a declaration to that effect was also communicated to the respondents. Similarly, on 20.8.1999, the appellant made another shipment of Rs.4,76,139/to the same buyer i.e. M/s. Treasures of India and declaration was sent to the Corporation.Clause 5(c) of the policy, as we find, requires the grant of credit by the insured to the buyer not for a longer period than 180 days unless specifically agreed to the contrary by the Corporation in writing. As per the letter dated 2.9.1999, the appellant has shown the terms of payment due within 90 days of the shipment. The appellant had given a credit of 60 days which is well within the outer limit of 90 days. If the Clause 5(c) is properly understood, in the obtaining factual matrix we are unable to agree with the findings recorded by the State Commission and the Commission that there has been violation of the terms of the policy as regards the reduction of the period for payment. What is stipulated is that the Corporation should not be liable if the insured gives credit for more than 180 days. That is the outer limit and as the insured has fixed the debt within the said period, that cannot be held against him.Keeping in view the aforesaid parameters of law, we are required to appreciate the stipulations in the policy pertaining to rejection on the said score. Clause 8(a) which deals with declarations, assumes significance. The said clause requires that before the 15th day of each calendar month, the insured shall deliver to the Corporation a declaration in the prescribed format of all shipments made by him during the previous month and if no shipment has been made during a month, adeclaration shall nevertheless beprescription of twin requirements in Clause 19(a) are cumulative. They cannot be read in segregation. The insured has to declare the shipments in terms of Clause 8(a) without omission and also pay the premium in terms of Clause 10. Premium of payment alone does not make the Corporation liable to indemnify the loss or fasten the liability on it. It is also required on the part of the insured for the purpose of sustaining the claim to show that there has been compliance as regards the declaration. To construe Clause 8(a) that the insured has a choice to declare which shipment he would cover and which ones he would leave, would run counter to the mandate of the policy. It has to be borne in mind that these are specific clauses relating to the obligations of the insured. The attempt on the part of the appellant to inject concept of payment of premium and the risk covered to this realm would not be acceptable. The general clauses basically convey which risks are covered and which risks are not covered, how the premium is to be computed and paid. What eventually matters is where the liability of the insurer is exclusively excluded, the said clauses of the policy are absolutely clear, unequivocal and unambiguous. The insured after availing a policy in commercial transactions is to understand the policy in entirety. The construction of the policy in entirety and in a harmonious manner leaves no room for doubt that there is no equivocality or ambiguity warranting an interpretation in favour of theWhatever the reasons the appellant may give, he having not declared as prescribed in Clause 8(a), which is again reiterated by way of reference in Clause 19(a), the exclusionary clause, it will be an anathema to the concept of interpretation of contract of insurance of such a nature, if liability is fastened on the insurer. The finding of the Commission that the appellant had not take steps to retrieve the goods is absolutely immaterial for the present purpose. The said finding though is flawed, the ultimate conclusion, which is based upon our independent analysis, isCourt referred to number of decisions as regards the maintainability of the writ petition and expressed the view that merely because one of the parties to the litigation raises a dispute in regards to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. After so holding the Court opined once the State or instrumentality is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India, and therefore, being the instrumentality of the State, the Corporation had acted in contravention of the requirements of Article 14, and hence, the writ court could issue appropriate writ to nullify the arbitrary action. The court referred to relevant Clauses of contract of insurance in the background of admitted facts. The contract of insurance between the insured and insurer was primarily based on the contract between exporter and the Kazak Corporation. The relevant Clause in regard to payment of the tea exported was incorporated in Clause 6. The said Clause came to be amended on the very same day when the contract was signed by the exporter and the Kazak Corporation by way of an addendum. The Court opined the addendum in the obtaining facts therein had become an integral part of the original Clause 6 of the Contract. The Court further proceeded to deal with the Clauses in the agreement and held that alternative modes of payment of consideration were permissible as per Clause 6.Mr. Gupta learned senior counsel has laid immense emphasis on the aforequoted paragraph. We have analysed the decision to appreciate the context and the factual score as depicted in the decision which clearly show that the court had arrived at indubitable conclusion that there had been no violation of the terms of the contract of insurance. Therefore, the said decision in our considered opinion is not applicable to the facts of the present case as in the instant case, as has been held earlier, there have been violations of the terms and conditions of the contract of insurance. We are compelled to observe that the said decision possibly has been cited as an authority as thewas also the respondent therein. | 0 | 8,779 | 1,153 | ### 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:
Ltd., an instrumentality of State, had repudiated the claim of the claimant against which a writ petition was filed before the learned Single Judge of the Calcutta High Court praying for quashment of the repudiation. The learned Single Judge after hearing parties came to the conclusion that the dispute between the parties arose out of a contract of insurance and the first respondent being a State for the purpose of Article 12, was bound by the terms of the contract and accordingly allowed the writ petition. In intra-court appeal the Division Bench opined that the claim of the writ petitioner involved disputed questions of fact and hence, could not be adjudicated in a writ proceeding under Article 226 of the Constitution. However, it proceeded to state that the learned Single Judge had erroneously applied the law and further came to hold that the insured had violated certain terms of the contract. This Court referred to number of decisions as regards the maintainability of the writ petition and expressed the view that merely because one of the parties to the litigation raises a dispute in regards to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. After so holding the Court opined once the State or instrumentality is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India, and therefore, being the instrumentality of the State, the Corporation had acted in contravention of the requirements of Article 14, and hence, the writ court could issue appropriate writ to nullify the arbitrary action. The court referred to relevant Clauses of contract of insurance in the background of admitted facts. The contract of insurance between the insured and insurer was primarily based on the contract between exporter and the Kazak Corporation. The relevant Clause in regard to payment of the tea exported was incorporated in Clause 6. The said Clause came to be amended on the very same day when the contract was signed by the exporter and the Kazak Corporation by way of an addendum. The Court opined the addendum in the obtaining facts therein had become an integral part of the original Clause 6 of the Contract. The Court further proceeded to deal with the Clauses in the agreement and held that alternative modes of payment of consideration were permissible as per Clause 6. In that context the Court further opined:- “The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum, therefore, without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy, it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk, that is: (i) there should be a default on the part of the Kazak Corporation to pay for the goods received; and (ii) there should be a failure on the part of the Kazakhstan Government to fulfil their guarantee.” After so stating the court ruled that there was no violation of the stipulations of the contract by the insured. While dealing with the grant of relief the court referred to the decision in Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212 ) and held thus:- “53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of the State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs. 16 lakhs. On facts we have found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when the Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner.” 29. Mr. Gupta learned senior counsel has laid immense emphasis on the aforequoted paragraph. We have analysed the decision to appreciate the context and the factual score as depicted in the decision which clearly show that the court had arrived at indubitable conclusion that there had been no violation of the terms of the contract of insurance. Therefore, the said decision in our considered opinion is not applicable to the facts of the present case as in the instant case, as has been held earlier, there have been violations of the terms and conditions of the contract of insurance. We are compelled to observe that the said decision possibly has been cited as an authority as the respondent-corporation was also the respondent therein.
### Response:
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### Explanation:
Treasures of India and declaration was sent to the Corporation.Clause 5(c) of the policy, as we find, requires the grant of credit by the insured to the buyer not for a longer period than 180 days unless specifically agreed to the contrary by the Corporation in writing. As per the letter dated 2.9.1999, the appellant has shown the terms of payment due within 90 days of the shipment. The appellant had given a credit of 60 days which is well within the outer limit of 90 days. If the Clause 5(c) is properly understood, in the obtaining factual matrix we are unable to agree with the findings recorded by the State Commission and the Commission that there has been violation of the terms of the policy as regards the reduction of the period for payment. What is stipulated is that the Corporation should not be liable if the insured gives credit for more than 180 days. That is the outer limit and as the insured has fixed the debt within the said period, that cannot be held against him.Keeping in view the aforesaid parameters of law, we are required to appreciate the stipulations in the policy pertaining to rejection on the said score. Clause 8(a) which deals with declarations, assumes significance. The said clause requires that before the 15th day of each calendar month, the insured shall deliver to the Corporation a declaration in the prescribed format of all shipments made by him during the previous month and if no shipment has been made during a month, adeclaration shall nevertheless beprescription of twin requirements in Clause 19(a) are cumulative. They cannot be read in segregation. The insured has to declare the shipments in terms of Clause 8(a) without omission and also pay the premium in terms of Clause 10. Premium of payment alone does not make the Corporation liable to indemnify the loss or fasten the liability on it. It is also required on the part of the insured for the purpose of sustaining the claim to show that there has been compliance as regards the declaration. To construe Clause 8(a) that the insured has a choice to declare which shipment he would cover and which ones he would leave, would run counter to the mandate of the policy. It has to be borne in mind that these are specific clauses relating to the obligations of the insured. The attempt on the part of the appellant to inject concept of payment of premium and the risk covered to this realm would not be acceptable. The general clauses basically convey which risks are covered and which risks are not covered, how the premium is to be computed and paid. What eventually matters is where the liability of the insurer is exclusively excluded, the said clauses of the policy are absolutely clear, unequivocal and unambiguous. The insured after availing a policy in commercial transactions is to understand the policy in entirety. The construction of the policy in entirety and in a harmonious manner leaves no room for doubt that there is no equivocality or ambiguity warranting an interpretation in favour of theWhatever the reasons the appellant may give, he having not declared as prescribed in Clause 8(a), which is again reiterated by way of reference in Clause 19(a), the exclusionary clause, it will be an anathema to the concept of interpretation of contract of insurance of such a nature, if liability is fastened on the insurer. The finding of the Commission that the appellant had not take steps to retrieve the goods is absolutely immaterial for the present purpose. The said finding though is flawed, the ultimate conclusion, which is based upon our independent analysis, isCourt referred to number of decisions as regards the maintainability of the writ petition and expressed the view that merely because one of the parties to the litigation raises a dispute in regards to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. After so holding the Court opined once the State or instrumentality is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India, and therefore, being the instrumentality of the State, the Corporation had acted in contravention of the requirements of Article 14, and hence, the writ court could issue appropriate writ to nullify the arbitrary action. The court referred to relevant Clauses of contract of insurance in the background of admitted facts. The contract of insurance between the insured and insurer was primarily based on the contract between exporter and the Kazak Corporation. The relevant Clause in regard to payment of the tea exported was incorporated in Clause 6. The said Clause came to be amended on the very same day when the contract was signed by the exporter and the Kazak Corporation by way of an addendum. The Court opined the addendum in the obtaining facts therein had become an integral part of the original Clause 6 of the Contract. The Court further proceeded to deal with the Clauses in the agreement and held that alternative modes of payment of consideration were permissible as per Clause 6.Mr. Gupta learned senior counsel has laid immense emphasis on the aforequoted paragraph. We have analysed the decision to appreciate the context and the factual score as depicted in the decision which clearly show that the court had arrived at indubitable conclusion that there had been no violation of the terms of the contract of insurance. Therefore, the said decision in our considered opinion is not applicable to the facts of the present case as in the instant case, as has been held earlier, there have been violations of the terms and conditions of the contract of insurance. We are compelled to observe that the said decision possibly has been cited as an authority as thewas also the respondent therein.
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Satya Sundar Sen Vs. State of W.B | Shelat, J.1. The order of detention impugned in this petition is in identical terms as the one in Writ Petition 322 of 1971, D/- 3-2-72 (S. C.) (Ananta Mukhi v. The State of West Bengal). For the reasons given in the judgment in that petition the impugned order must be held to be bad. Consequently, the respondent State is directed to release the petitioner and set him at liberty forthwith.2. Khanna, J.(For himself and Mathew J.). This is a petition through jail under Art. 32 of the Constitution of India for the issuance of a writ of habeas corpus by Satya Sunder Sen who has been ordered to be detained under Sec. 3 of the West Bengal (Prevention of Violent, Activities) Act, 1970 (Presidents Act No. 19 of 1970).3. The order of detention which was made against the petitioner reads as under :"Whereas I am satisfied with respect to the person known as Shri Satya Sunder Sen alias Mathur Sen, son of late Amulya Ratan Sen of Lalbazar, Dubrajpur, P. S. Dubrajpur, Dt. Birbhum, that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do. I, therefore, in exercise of the powers conferred by sub-section (1) read with sub-section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), make this order directing that the said Shri Satya Sunder Sen alias Mathur Sen be detained.Given under my hand and seal of officeSd/ M/ Gupta10/6/71District Magistrate, Birbhum."4. The petition has been resisted on behalf of the respondent and the affidavit of Shri Chandi Charan Bose, Deputy Secretary Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.Mr. Francis, who has argued the case amicus curiae on behalf of the petitioner, has raised only one contention. It is urged that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention. Similar argument was advanced before us in the case of (Writ Petition No. 322 of 1971, D/- 3-2-1972 (SC) and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order. | 0[ds]Mr. Francis, who has argued the case amicus curiae on behalf of the petitioner, has raised only one contention. It is urged that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention.Similar argument was advanced before us in the case of (Writ Petition No. 322 of 1971, D/(SC) and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order. | 0 | 537 | 178 | ### 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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Shelat, J.1. The order of detention impugned in this petition is in identical terms as the one in Writ Petition 322 of 1971, D/- 3-2-72 (S. C.) (Ananta Mukhi v. The State of West Bengal). For the reasons given in the judgment in that petition the impugned order must be held to be bad. Consequently, the respondent State is directed to release the petitioner and set him at liberty forthwith.2. Khanna, J.(For himself and Mathew J.). This is a petition through jail under Art. 32 of the Constitution of India for the issuance of a writ of habeas corpus by Satya Sunder Sen who has been ordered to be detained under Sec. 3 of the West Bengal (Prevention of Violent, Activities) Act, 1970 (Presidents Act No. 19 of 1970).3. The order of detention which was made against the petitioner reads as under :"Whereas I am satisfied with respect to the person known as Shri Satya Sunder Sen alias Mathur Sen, son of late Amulya Ratan Sen of Lalbazar, Dubrajpur, P. S. Dubrajpur, Dt. Birbhum, that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do. I, therefore, in exercise of the powers conferred by sub-section (1) read with sub-section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), make this order directing that the said Shri Satya Sunder Sen alias Mathur Sen be detained.Given under my hand and seal of officeSd/ M/ Gupta10/6/71District Magistrate, Birbhum."4. The petition has been resisted on behalf of the respondent and the affidavit of Shri Chandi Charan Bose, Deputy Secretary Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.Mr. Francis, who has argued the case amicus curiae on behalf of the petitioner, has raised only one contention. It is urged that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention. Similar argument was advanced before us in the case of (Writ Petition No. 322 of 1971, D/- 3-2-1972 (SC) and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order.
### Response:
0
### Explanation:
Mr. Francis, who has argued the case amicus curiae on behalf of the petitioner, has raised only one contention. It is urged that the order of detention made against the petitioner by the District Magistrate shows an element of casualness and absence of due application of mind, as according to the order the petitioner was detained "with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order". It is urged that the use of the word "or" in the order shows that the detaining authority was not definite regarding the ground of detention.Similar argument was advanced before us in the case of (Writ Petition No. 322 of 1971, D/(SC) and was rejected. It has been held by us that the use of the word "or" in the detention order would not introduce an infirmity as might justify the quashing of that order.
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Bank Of India Vs. M/S. Mehta Brothers | with. The said paragraph noted two significant changes which were effected in Order 9 Rule 13 of the Code namely, the words "as against him" were added after the words "shall make an order setting aside the decree" and the proviso to the Rule. Accordingly, from this paragraph of the Full Bench decision, the changes left no room for doubt that as a general rule, the decree was to be set aside against the person making the application under Order 9 Rule 13 of the Code, but in exceptional cases, contemplated by the proviso, it could be set aside against all or any of the other defendants. Emphasis was made in this paragraph that the decree to be set aside must be a decree "against the defendants and not a decree in their favour". It is needless to say that the learned single judge of the Delhi High Court had followed the minority decision of the Assam High Court and held that the decree was indivisible which was set aside by the Division Bench in the aforesaid manner. In our view, considering the issues framed in the present suit and the reliefs claimed by the appellant Bank and the findings arrived at on such issues, as noted herein above, we are of the opinion that the learned single judge was fully justified in restoring the suit in toto and was correct in setting aside the entire decree and restore the suit in its entirety on an application under Order 9 Rule 13 of the Code which also, in view of our discussions made herein earlier, was correct in the approach of Order 9 Rule 13 of the Code. 21. Reliance on paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants on contest. 22. As noted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte against it. 23. Before we conclude, we may mention one short submission of the learned counsel for respondent Nos. 1 to 5. According to the learned counsel for respondent Nos.1 to 5, it was not open to the appellant Bank to restore the suit in toto on the application under Order 9 Rule 13 of the Code filed by respondent No.6, because the appellant Bank did not choose to prefer any appeal against the order of dismissal of the suit passed in favour of respondent Nos.1 to 5. In view of our discussions made herein above in which we have already come to the conclusion that the decree was indivisible and was dependent on the decision of the issues indicated herein earlier, it was not possible for the court to set aside the ex parte decree only against respondent No.6. Therefore, we do not think that this argument of the learned counsel for respondent Nos. 1 to 5 would be of any help. That apart, the learned single judge having set aside the decree in toto and restored the suit in its entirety, it was not necessary for the appellant Bank to file any appeal against the dismissal of the suit as against respondent Nos.1 to 5.24. Accordingly, we set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him. 25. For the reasons aforesaid, the | 1[ds]In our view, the Division Bench was not justified in setting aside the above part of the order of the learned Single Judge on the ground that the decrees were two distinct decrees : one against respondent No.6 and one in favour of the respondent Nos. 1 to 5. It is to be noted that the judgment of the learned single judge as well as of the Division Bench had not proceeded on the basis that the decree was entirely ex parte against all the defendants. Therefore, we have to see the nature of the decree for the purpose of coming to a proper conclusion whether the decree could be indivisible or the decree that was passed were two separate distinct decrees. In this connection, it would be important to refer to a minority decision of the Assam High Court in the case of Khargesh Chandra Vs. Chandra Kanta Barua [AIR 1954, Assam 183], which would be relevant for us to illustrate and answer thison paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants onnoted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte againstwe set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him. | 1 | 8,586 | 715 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
with. The said paragraph noted two significant changes which were effected in Order 9 Rule 13 of the Code namely, the words "as against him" were added after the words "shall make an order setting aside the decree" and the proviso to the Rule. Accordingly, from this paragraph of the Full Bench decision, the changes left no room for doubt that as a general rule, the decree was to be set aside against the person making the application under Order 9 Rule 13 of the Code, but in exceptional cases, contemplated by the proviso, it could be set aside against all or any of the other defendants. Emphasis was made in this paragraph that the decree to be set aside must be a decree "against the defendants and not a decree in their favour". It is needless to say that the learned single judge of the Delhi High Court had followed the minority decision of the Assam High Court and held that the decree was indivisible which was set aside by the Division Bench in the aforesaid manner. In our view, considering the issues framed in the present suit and the reliefs claimed by the appellant Bank and the findings arrived at on such issues, as noted herein above, we are of the opinion that the learned single judge was fully justified in restoring the suit in toto and was correct in setting aside the entire decree and restore the suit in its entirety on an application under Order 9 Rule 13 of the Code which also, in view of our discussions made herein earlier, was correct in the approach of Order 9 Rule 13 of the Code. 21. Reliance on paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants on contest. 22. As noted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte against it. 23. Before we conclude, we may mention one short submission of the learned counsel for respondent Nos. 1 to 5. According to the learned counsel for respondent Nos.1 to 5, it was not open to the appellant Bank to restore the suit in toto on the application under Order 9 Rule 13 of the Code filed by respondent No.6, because the appellant Bank did not choose to prefer any appeal against the order of dismissal of the suit passed in favour of respondent Nos.1 to 5. In view of our discussions made herein above in which we have already come to the conclusion that the decree was indivisible and was dependent on the decision of the issues indicated herein earlier, it was not possible for the court to set aside the ex parte decree only against respondent No.6. Therefore, we do not think that this argument of the learned counsel for respondent Nos. 1 to 5 would be of any help. That apart, the learned single judge having set aside the decree in toto and restored the suit in its entirety, it was not necessary for the appellant Bank to file any appeal against the dismissal of the suit as against respondent Nos.1 to 5.24. Accordingly, we set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him. 25. For the reasons aforesaid, the
### Response:
1
### Explanation:
In our view, the Division Bench was not justified in setting aside the above part of the order of the learned Single Judge on the ground that the decrees were two distinct decrees : one against respondent No.6 and one in favour of the respondent Nos. 1 to 5. It is to be noted that the judgment of the learned single judge as well as of the Division Bench had not proceeded on the basis that the decree was entirely ex parte against all the defendants. Therefore, we have to see the nature of the decree for the purpose of coming to a proper conclusion whether the decree could be indivisible or the decree that was passed were two separate distinct decrees. In this connection, it would be important to refer to a minority decision of the Assam High Court in the case of Khargesh Chandra Vs. Chandra Kanta Barua [AIR 1954, Assam 183], which would be relevant for us to illustrate and answer thison paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants onnoted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte againstwe set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him.
|
K.N. RAJAKUMAR Vs. V. NAGARAJAN & ORS | of CIRP proceedings under Section 12A of the IBC. It is the contention of K.N. Rajakumar that as a matter of fact, NCLT and NCLAT ought to have held that CoC should consist only of HDFC Bank, which is now the sole financial creditor. 11. Though, various submissions have been advanced on behalf of the rival parties, we do not find it necessary to go into the said issues. It is a settled principle of law that the Court should not go into the academic issues and seek to interpret the provisions of law when it is not necessary for deciding the issues in the appeal(s). Reference in this regard could be made to the judgments of this Court in the cases of Vidya Charan Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 84 and K.I. Shephard and others v. Union of India and others (1987) 4 SCC 431 . 12. At this juncture, it would be relevant to refer to Section 12A of the IBC, which reads thus: 12A. Withdrawal of application admitted under section 7, 9 or 10.— The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent voting share of the committee of creditors, in such manner as may be specified. 13. It could thus be seen that the Adjudicating Authority is entitled to withdraw the application admitted under Section 7 or Section 9 or Section 10, on an application made by the applicant with the approval of 90% voting share of the CoC. 14. It is not in dispute that the resolution of CoC approving withdrawal of CIRP proceedings was supported by the requisite voting majority. NCLT after considering the resolution passed by CoC in its 8th meeting held on 25.5.2021 has allowed the application filed by K.N. Rajakumar vide order dated 4.6.2021. 15. This Court in the case of Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through The Director and Others 2021 SCC OnLine SC 313 after considering the earlier pronouncements of law by this Court with regard to aims and objects of IBC has observed thus: 86. As discussed hereinabove, one of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I&B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on-going concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the Adjudicating Authority can grant its approval to the plan. It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable. 16. It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort. 17. From the order of NCLT dated 4.6.2021, it could be seen that the Corporate Debtor has already settled the issue with the erstwhile financial creditors, who have resolved to withdraw the CIRP proceedings and by virtue of withdrawal of CIRP proceedings, the Corporate Debtor now is a going concern. 18. Insofar as the appeal filed by D. Ramjee is concerned, we have already observed that the order of NCLAT dated 2.8.2017 allowing the appeal filed by the Corporate Debtor and setting aside the order dated 13.6.2017 passed by NCLT in D. Ramjees application under Section 9 of the IBC has admittedly not been challenged by D. Ramjee. In pursuance of the assurance given before NCLAT, an amount of Rs.18,50,000/- was also paid to D. Ramjee towards arrears of salary by the Corporate Debtor. The application for permission to file an appeal filed by D. Ramjee before this Court has been rejected by this Court vide judgment and order dated 3.3.2021. 19. In that view of the matter, we find that insofar as D. Ramjee is concerned, the issue has attained finality as on 2.8.2017 when the appeal filed by the Corporate Debtor came to be allowed by NCLAT. We find that NCLT vide order dated 6.7.2021, passed in the application (I.A.No.540/CHE/2021) filed by D.Ramjee, has rightly held that from the date of the order dated 4.6.2021, after the withdrawal of CIRP proceedings, the powers and management of the Corporate Debtor were handed over to the Directors of the Corporate Debtor and from that date RP and CoC in relation to the Corporate Debtor had become functus officio. NCLT has rightly disposed of the application filed by D.Ramjee having rendered infructuous. | 0[ds]11. Though, various submissions have been advanced on behalf of the rival parties, we do not find it necessary to go into the said issues. It is a settled principle of law that the Court should not go into the academic issues and seek to interpret the provisions of law when it is not necessary for deciding the issues in the appeal(s). Reference in this regard could be made to the judgments of this Court in the cases of Vidya Charan Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 84 and K.I. Shephard and others v. Union of India and others (1987) 4 SCC 431 .13. It could thus be seen that the Adjudicating Authority is entitled to withdraw the application admitted under Section 7 or Section 9 or Section 10, on an application made by the applicant with the approval of 90% voting share of the CoC.14. It is not in dispute that the resolution of CoC approving withdrawal of CIRP proceedings was supported by the requisite voting majority. NCLT after considering the resolution passed by CoC in its 8th meeting held on 25.5.2021 has allowed the application filed by K.N. Rajakumar vide order dated 4.6.2021.15. This Court in the case of Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through The Director and Others 2021 SCC OnLine SC 313 after considering the earlier pronouncements of law by this Court with regard to aims and objects of IBC has observed thus:86. As discussed hereinabove, one of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I&B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on-going concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the Adjudicating Authority can grant its approval to the plan. It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable.16. It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort.17. From the order of NCLT dated 4.6.2021, it could be seen that the Corporate Debtor has already settled the issue with the erstwhile financial creditors, who have resolved to withdraw the CIRP proceedings and by virtue of withdrawal of CIRP proceedings, the Corporate Debtor now is a going concern.18. Insofar as the appeal filed by D. Ramjee is concerned, we have already observed that the order of NCLAT dated 2.8.2017 allowing the appeal filed by the Corporate Debtor and setting aside the order dated 13.6.2017 passed by NCLT in D. Ramjees application under Section 9 of the IBC has admittedly not been challenged by D. Ramjee. In pursuance of the assurance given before NCLAT, an amount of Rs.18,50,000/- was also paid to D. Ramjee towards arrears of salary by the Corporate Debtor. The application for permission to file an appeal filed by D. Ramjee before this Court has been rejected by this Court vide judgment and order dated 3.3.2021.19. In that view of the matter, we find that insofar as D. Ramjee is concerned, the issue has attained finality as on 2.8.2017 when the appeal filed by the Corporate Debtor came to be allowed by NCLAT. We find that NCLT vide order dated 6.7.2021, passed in the application (I.A.No.540/CHE/2021) filed by D.Ramjee, has rightly held that from the date of the order dated 4.6.2021, after the withdrawal of CIRP proceedings, the powers and management of the Corporate Debtor were handed over to the Directors of the Corporate Debtor and from that date RP and CoC in relation to the Corporate Debtor had become functus officio. NCLT has rightly disposed of the application filed by D.Ramjee having rendered infructuous. | 0 | 3,334 | 957 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of CIRP proceedings under Section 12A of the IBC. It is the contention of K.N. Rajakumar that as a matter of fact, NCLT and NCLAT ought to have held that CoC should consist only of HDFC Bank, which is now the sole financial creditor. 11. Though, various submissions have been advanced on behalf of the rival parties, we do not find it necessary to go into the said issues. It is a settled principle of law that the Court should not go into the academic issues and seek to interpret the provisions of law when it is not necessary for deciding the issues in the appeal(s). Reference in this regard could be made to the judgments of this Court in the cases of Vidya Charan Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 84 and K.I. Shephard and others v. Union of India and others (1987) 4 SCC 431 . 12. At this juncture, it would be relevant to refer to Section 12A of the IBC, which reads thus: 12A. Withdrawal of application admitted under section 7, 9 or 10.— The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent voting share of the committee of creditors, in such manner as may be specified. 13. It could thus be seen that the Adjudicating Authority is entitled to withdraw the application admitted under Section 7 or Section 9 or Section 10, on an application made by the applicant with the approval of 90% voting share of the CoC. 14. It is not in dispute that the resolution of CoC approving withdrawal of CIRP proceedings was supported by the requisite voting majority. NCLT after considering the resolution passed by CoC in its 8th meeting held on 25.5.2021 has allowed the application filed by K.N. Rajakumar vide order dated 4.6.2021. 15. This Court in the case of Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through The Director and Others 2021 SCC OnLine SC 313 after considering the earlier pronouncements of law by this Court with regard to aims and objects of IBC has observed thus: 86. As discussed hereinabove, one of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I&B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on-going concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the Adjudicating Authority can grant its approval to the plan. It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable. 16. It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort. 17. From the order of NCLT dated 4.6.2021, it could be seen that the Corporate Debtor has already settled the issue with the erstwhile financial creditors, who have resolved to withdraw the CIRP proceedings and by virtue of withdrawal of CIRP proceedings, the Corporate Debtor now is a going concern. 18. Insofar as the appeal filed by D. Ramjee is concerned, we have already observed that the order of NCLAT dated 2.8.2017 allowing the appeal filed by the Corporate Debtor and setting aside the order dated 13.6.2017 passed by NCLT in D. Ramjees application under Section 9 of the IBC has admittedly not been challenged by D. Ramjee. In pursuance of the assurance given before NCLAT, an amount of Rs.18,50,000/- was also paid to D. Ramjee towards arrears of salary by the Corporate Debtor. The application for permission to file an appeal filed by D. Ramjee before this Court has been rejected by this Court vide judgment and order dated 3.3.2021. 19. In that view of the matter, we find that insofar as D. Ramjee is concerned, the issue has attained finality as on 2.8.2017 when the appeal filed by the Corporate Debtor came to be allowed by NCLAT. We find that NCLT vide order dated 6.7.2021, passed in the application (I.A.No.540/CHE/2021) filed by D.Ramjee, has rightly held that from the date of the order dated 4.6.2021, after the withdrawal of CIRP proceedings, the powers and management of the Corporate Debtor were handed over to the Directors of the Corporate Debtor and from that date RP and CoC in relation to the Corporate Debtor had become functus officio. NCLT has rightly disposed of the application filed by D.Ramjee having rendered infructuous.
### Response:
0
### Explanation:
11. Though, various submissions have been advanced on behalf of the rival parties, we do not find it necessary to go into the said issues. It is a settled principle of law that the Court should not go into the academic issues and seek to interpret the provisions of law when it is not necessary for deciding the issues in the appeal(s). Reference in this regard could be made to the judgments of this Court in the cases of Vidya Charan Shukla v. Purshottam Lal Kaushik (1981) 2 SCC 84 and K.I. Shephard and others v. Union of India and others (1987) 4 SCC 431 .13. It could thus be seen that the Adjudicating Authority is entitled to withdraw the application admitted under Section 7 or Section 9 or Section 10, on an application made by the applicant with the approval of 90% voting share of the CoC.14. It is not in dispute that the resolution of CoC approving withdrawal of CIRP proceedings was supported by the requisite voting majority. NCLT after considering the resolution passed by CoC in its 8th meeting held on 25.5.2021 has allowed the application filed by K.N. Rajakumar vide order dated 4.6.2021.15. This Court in the case of Ghanashyam Mishra and Sons Private Limited through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through The Director and Others 2021 SCC OnLine SC 313 after considering the earlier pronouncements of law by this Court with regard to aims and objects of IBC has observed thus:86. As discussed hereinabove, one of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I&B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum. The resolution applicants submit their plans on the basis of the details provided in the information memorandum. The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on-going concern. After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the I&B Code. Only thereafter, the Adjudicating Authority can grant its approval to the plan. It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable.16. It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort.17. From the order of NCLT dated 4.6.2021, it could be seen that the Corporate Debtor has already settled the issue with the erstwhile financial creditors, who have resolved to withdraw the CIRP proceedings and by virtue of withdrawal of CIRP proceedings, the Corporate Debtor now is a going concern.18. Insofar as the appeal filed by D. Ramjee is concerned, we have already observed that the order of NCLAT dated 2.8.2017 allowing the appeal filed by the Corporate Debtor and setting aside the order dated 13.6.2017 passed by NCLT in D. Ramjees application under Section 9 of the IBC has admittedly not been challenged by D. Ramjee. In pursuance of the assurance given before NCLAT, an amount of Rs.18,50,000/- was also paid to D. Ramjee towards arrears of salary by the Corporate Debtor. The application for permission to file an appeal filed by D. Ramjee before this Court has been rejected by this Court vide judgment and order dated 3.3.2021.19. In that view of the matter, we find that insofar as D. Ramjee is concerned, the issue has attained finality as on 2.8.2017 when the appeal filed by the Corporate Debtor came to be allowed by NCLAT. We find that NCLT vide order dated 6.7.2021, passed in the application (I.A.No.540/CHE/2021) filed by D.Ramjee, has rightly held that from the date of the order dated 4.6.2021, after the withdrawal of CIRP proceedings, the powers and management of the Corporate Debtor were handed over to the Directors of the Corporate Debtor and from that date RP and CoC in relation to the Corporate Debtor had become functus officio. NCLT has rightly disposed of the application filed by D.Ramjee having rendered infructuous.
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Srikanta Datta Narasimharaja Wodiyarb Vs. Enforcement Officer, Mysore | achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose. Paragraph 36-A of the Provident Funds Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5-A mentioning details of its branches and departments, owners, occupiers, Directors, partners, Managers or any other person or persons who have ultimate control over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and Directors etc. is not an empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. The anxiety of the legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from Section 10 and 11 of the Act. The former grants immunity to provident fund from being attached for any debt outstanding against the employee. and the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the Company is winded up. Such being the nature or provident fund any violation or breach in this regard has to be construed strictly and against the employer 14. Reverting to the statutory provisions Sections 14 and 14-A provide for penalties. The one applies to whosoever is guilty of avoiding payment of provident fund and to employer if he commits breach of provisions mentioned in its various clauses whereas Section 14-A fastens liability on certain persons if the person committing the offence is a company. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the Company for the offence committed by it. Section 14-A reads as under "14-A. Offences by Companies. - (1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (2) Notwithstanding anything contained in sub-section, (1), where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordinglyExplanation. - For the purposes of this section - (i) company means any body corporate and includes a firm and other association of individuals; and (ii) director, in relation to a firm means a partner in the firm" 15. Sub-sections (1) and (2) extend the liability for any offence by any person including a partner by virtue of explanation if he was in charge or was responsible to the Company at the time of committing the offence. The expression, was in charge of and was responsible to the Company for the conduct of the business are very wide in their import. It could not, therefore, be confined to employer only. The employer is defined by Section 2(e) as follows "2.(e) employer means - (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f)of sub-section (1) of section 7 of the Factories Act, 1948, the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;" * Both clauses (i) and (ii) again are wide in their sweep. In clause (i) are included not only owner or occupier but even the agent of Manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the Company. It includes even Director. Therefore, every such person who has the ultimate control over the affairs of Company becomes employer. To say therefore that since paragraph 36-A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5-A including appellant as one of the persons in charge and responsible for affairs of the Company was in accordance with law. Therefore his prosecution for violation of the Scheme does not suffer from any error of jurisdiction or lawORDER | 0[ds]It is made mandatory to the employer to abide by the same and non-compliance therewith is liable for prosecution under Section 14-A of the Act. Section 14(1-A) relied on by Shri Nesargi relates to only liability for punishment for contravention or making default to comply with Section 6 or Section 17(3-A) insofar as it relates to the payment of inspection charges and para 38 of the Scheme insofar as it relates to payment of administrative charges. That has no application as regards the offence covered under Section 14-A by the companies are concerned. Accordingly we hold that the appellant having been declared himself as one of the persons in charges of and responsible for conduct of the business of the establishment or the factory, the complaint and non-compliance therewith having been enumerated in subsequent paras of the complaint, it was validly made against the appellant along with order accused for the alleged contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the learned Magistrate has rightly taken cognizance of the offence alleged against the appellant11. Employees State Insurance Corpn. v. Gurdial Singh 1991 (S1) SCC 204 : 1991 SCC(L&S) 833) is the case relating to an admission made by the prosecution that the Directors were not in charge nor are responsible for compliance with the provisions of the Employees State Insurance Act, 1948. "Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It is also not in dispute that it has a Manager too". In view of this admission the Directors were held not responsible for non-compliance with the provisions of the Employees State Insurance Act, 1948. The ratio therein, therefore, does not assist the appellant. Equally in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi 1983 (1) SCC 1 : 1983 SCC(L&S) 833) for an offence under Prevention of Food Adulteration Act specific provisions of Food Adulteration Rules provide for nomination of occupier of Manager responsible for the production or manufacture of articles of food, etc. by the company and were nominated. Under those circumstances, this Court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors. The appeals are thus dismissed | 0 | 3,841 | 440 | ### 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:
achieving this objective by enacting provisions requiring the employer to contribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose. Paragraph 36-A of the Provident Funds Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5-A mentioning details of its branches and departments, owners, occupiers, Directors, partners, Managers or any other person or persons who have ultimate control over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and Directors etc. is not an empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. The anxiety of the legislature to ensure that the employees are not put to any hardship in respect of Provident Fund is manifest from Section 10 and 11 of the Act. The former grants immunity to provident fund from being attached for any debt outstanding against the employee. and the latter provides for priority of provident fund contribution over other debts if the employer is adjudged insolvent or the Company is winded up. Such being the nature or provident fund any violation or breach in this regard has to be construed strictly and against the employer 14. Reverting to the statutory provisions Sections 14 and 14-A provide for penalties. The one applies to whosoever is guilty of avoiding payment of provident fund and to employer if he commits breach of provisions mentioned in its various clauses whereas Section 14-A fastens liability on certain persons if the person committing the offence is a company. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the Company for the offence committed by it. Section 14-A reads as under "14-A. Offences by Companies. - (1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence (2) Notwithstanding anything contained in sub-section, (1), where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordinglyExplanation. - For the purposes of this section - (i) company means any body corporate and includes a firm and other association of individuals; and (ii) director, in relation to a firm means a partner in the firm" 15. Sub-sections (1) and (2) extend the liability for any offence by any person including a partner by virtue of explanation if he was in charge or was responsible to the Company at the time of committing the offence. The expression, was in charge of and was responsible to the Company for the conduct of the business are very wide in their import. It could not, therefore, be confined to employer only. The employer is defined by Section 2(e) as follows "2.(e) employer means - (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f)of sub-section (1) of section 7 of the Factories Act, 1948, the person so named; and (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;" * Both clauses (i) and (ii) again are wide in their sweep. In clause (i) are included not only owner or occupier but even the agent of Manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the Company. It includes even Director. Therefore, every such person who has the ultimate control over the affairs of Company becomes employer. To say therefore that since paragraph 36-A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5-A including appellant as one of the persons in charge and responsible for affairs of the Company was in accordance with law. Therefore his prosecution for violation of the Scheme does not suffer from any error of jurisdiction or lawORDER
### Response:
0
### Explanation:
It is made mandatory to the employer to abide by the same and non-compliance therewith is liable for prosecution under Section 14-A of the Act. Section 14(1-A) relied on by Shri Nesargi relates to only liability for punishment for contravention or making default to comply with Section 6 or Section 17(3-A) insofar as it relates to the payment of inspection charges and para 38 of the Scheme insofar as it relates to payment of administrative charges. That has no application as regards the offence covered under Section 14-A by the companies are concerned. Accordingly we hold that the appellant having been declared himself as one of the persons in charges of and responsible for conduct of the business of the establishment or the factory, the complaint and non-compliance therewith having been enumerated in subsequent paras of the complaint, it was validly made against the appellant along with order accused for the alleged contravention. Necessary allegations bringing out the ingredient of offence have been made out in the complaint. Therefore, the learned Magistrate has rightly taken cognizance of the offence alleged against the appellant11. Employees State Insurance Corpn. v. Gurdial Singh 1991 (S1) SCC 204 : 1991 SCC(L&S) 833) is the case relating to an admission made by the prosecution that the Directors were not in charge nor are responsible for compliance with the provisions of the Employees State Insurance Act, 1948. "Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It is also not in dispute that it has a Manager too". In view of this admission the Directors were held not responsible for non-compliance with the provisions of the Employees State Insurance Act, 1948. The ratio therein, therefore, does not assist the appellant. Equally in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi 1983 (1) SCC 1 : 1983 SCC(L&S) 833) for an offence under Prevention of Food Adulteration Act specific provisions of Food Adulteration Rules provide for nomination of occupier of Manager responsible for the production or manufacture of articles of food, etc. by the company and were nominated. Under those circumstances, this Court upheld the quashing of the proceedings against the Directors as the complaint did not contain necessary allegations constituting the offence against the Directors. The appeals are thus dismissed
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Northern Mineral Ltd Vs. Union of India and Anr | act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified. 12. The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehras contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.14. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. The shelf-life of the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry of shelf-life. It is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time-schedule, so that innocent persons are not prosecuted and real culprits not left out. | 1[ds]6. We find substance in the submission of Mr. Nehra and the decision relied on clearly supports his contention. Statute mandates disclosure of expiry date of the insecticide. The form prescribed for submission of the report by Insecticide Analyst contains columns for the date of the manufacture and expiry. Insecticides are substances specified in the schedule of the Insecticides Act and from perusal thereof it is evident that many of substances with passage of time may lose its identity if exposed or comes into contact with other substance. Therefore, there is no escape from the conclusion that shelflife of an insecticide shall have its bearing when it is tested or analysed in the laboratory.The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehras contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.14. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. Theof the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry ofIt is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to theso that innocent persons are not prosecuted and real culprits not left out. | 1 | 4,169 | 1,055 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified. 12. The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehras contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.14. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. The shelf-life of the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry of shelf-life. It is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time-schedule, so that innocent persons are not prosecuted and real culprits not left out.
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6. We find substance in the submission of Mr. Nehra and the decision relied on clearly supports his contention. Statute mandates disclosure of expiry date of the insecticide. The form prescribed for submission of the report by Insecticide Analyst contains columns for the date of the manufacture and expiry. Insecticides are substances specified in the schedule of the Insecticides Act and from perusal thereof it is evident that many of substances with passage of time may lose its identity if exposed or comes into contact with other substance. Therefore, there is no escape from the conclusion that shelflife of an insecticide shall have its bearing when it is tested or analysed in the laboratory.The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. & Ors. (Supra) and M/s. Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehras contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for anlaysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of M/s Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the Inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.13. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.14. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. Theof the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry ofIt is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to theso that innocent persons are not prosecuted and real culprits not left out.
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Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari | Ors., (1987) 3 SCC 684 , wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. The name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:- …The learned Single Judge has focused his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery…. Furthermore, the legal infirmity is of such a nature which could be easily cured... 18. What is discernible from the U.P. Pollution Control Boards case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint. 19. In the instant case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem Khalnayakaru being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India. 18. What we are emphasis1 ing is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated. 19. In this context, provisions of Sub-Section(2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub-Section(2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows: (2).If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases. 21 We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court. 22. | 0[ds]g is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated19. In this context, provisions of Sub-Section(2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub-Section(2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows:(2).If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases21 We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court | 0 | 4,611 | 463 | ### 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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Ors., (1987) 3 SCC 684 , wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. The name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:- …The learned Single Judge has focused his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery…. Furthermore, the legal infirmity is of such a nature which could be easily cured... 18. What is discernible from the U.P. Pollution Control Boards case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint. 19. In the instant case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem Khalnayakaru being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India. 18. What we are emphasis1 ing is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated. 19. In this context, provisions of Sub-Section(2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub-Section(2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows: (2).If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases. 21 We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court. 22.
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g is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated19. In this context, provisions of Sub-Section(2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub-Section(2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows:(2).If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases21 We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court
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NATIONAL INSURANCE COMPANY LTD Vs. MANNAT JOHAL | factors, as indicated infra. 12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia 12.1. The aforesaid decision in Shashi Sharma has been explained and distinguished by another three-Judge Bench of this Court in Sebastiani Lakra (supra) in the following:- 10. In Shashi Sharmas case, 2016 ACJ 2723 (SC), this court was dealing with the payments made to the legal heirs of the deceased in terms of rule 5(1) of the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (for short the said Rules). Under rule 5 of the said Rules on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods set out in the Rules and after the said period the family was entitled to receive family pension. The family was also entitled to retain the Government accommodation for a period of one year in addition to payment of Rs. 25,000 as ex gratia. In this case, the three-Judge Bench adverted to the principles laid down in Helen C. Rebellos case 1999 ACJ 10 (SC), followed in Patricia Jean Mahajans case 2002 ACJ 1441 (SC), and came to the conclusion that the decision in Vimal Kanwars case 2013 ACJ 1441 (SC), did not take a view contrary to Helen C. Rebello or Patricia Jean Mahajan cases (supra). The following observations are relevant: (12) The principle expounded in this decision in Helen C. Rebellos case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the pecuniary advantage from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the MotorVehicles Act, 1988. This principle has been re- stated in the subsequent decision of the two-Judge Bench in Patricia Jean Mahajans case, 2002 ACJ 1441 (SC), to reject the argument of the insurance company to deduct the amount receivable by the dependants of the deceased by way of social security compensation and life insurance policy. However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the head of pay and other allowances last drawn by the employee. We may note that on principle this court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan (supra), but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules. 12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary. 12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference. 13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court. | 0[ds]7. Having given anxious consideration to the rival submissions and having examined the record, we are clearly of the view that the modified award made by the High Court in this case remains that of just compensation and no case for interference is made out in either of these appeals8. It remains trite, and need not be over-emphasised, that while dealing with the question of quantification in a claim for compensation under the Motor Vehicles Act, 1988 (the Act of 1988), the endeavor has to be to ensure awarding of just compensation to the claimant/s9. In a case like the present one, relating to the death of the vehicular accident victim, any process of awarding just compensation involves assessment of such amount of pecuniary loss which could be reasonably taken as the loss of dependency suffered by the claimants due to the demise of the victim. In other words, such a process, by its very nature, involves the assessment of monetary contribution that the claimants were likely to receive from the deceased had he not met with the untimely end due to the accident. For the purpose of such an assessment, while some of the basic facts, like the age, job and income of the deceased and the number of dependents with extent of their dependency, could be reasonably ascertained from the evidence on record, yet, several uncertain factors also, per force, come into play, like the future prospects of the deceased coupled with various imponderables related with a human life. As the process, by its very nature, involves a substantial deal of guess-work, this Court, over the years, has evolved and applied several principles so as to ensure that as far as possible, the methods for assessment remain uniform, curbing against disparity in the amount of compensation to be awarded in similarly circumstanced cases. It is not necessary for the present purpose to traverse through the large number of past decisions, particularly for the reason that the basic parameters stand explained and standardised with the larger Bench decision in Pranay Sethi (supra), wherein this Court has partly modulated the parameters enunciated in the two-Judge Bench decision in Sarla Verma (supra), and has laid down the principles as follows:-3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment59.7. The age of the deceased should be the basis for applying the multiplier59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years10. Applying the principles aforesaid to the present case, we find that the award made by the Tribunal suffered from a few fundamental errors and shortcomings as regards the assessment of multiplicand. The Tribunal, instead of taking the last drawn emoluments of the deceased, chose to proceed on his enhanced projected emoluments after the expected promotion and pay revision. However, thereafter, the Tribunal did not provide for any further future prospects. The Tribunal also did not make any deduction towards the tax component. Moreover, the Tribunal deducted one-third towards personal expenses of the deceased though he had had five dependents. Then, the Tribunal applied the multiplier of 16. Apparently, the assessment made by the Tribunal could not have been countenanced, for being not in conformity with the principles in Pranay Sethi (supra)11.1. The assessment so made by the High Court stands more or less in conformity with the principles enunciated in Pranay Sethi (supra). The only doubtful area is that the High Court provided for enhancement towards future prospects only at 40% on the last drawn emoluments of the deceased and not at 50% though he was shown to be in a settled employment with future chances of promotion as also pay revision. However, on the facts and in the circumstances of the present case, we are not considering any modification in the amount awarded by the High Court for a variety of factors, as indicated infra12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court. | 0 | 5,205 | 1,553 | ### 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:
factors, as indicated infra. 12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia 12.1. The aforesaid decision in Shashi Sharma has been explained and distinguished by another three-Judge Bench of this Court in Sebastiani Lakra (supra) in the following:- 10. In Shashi Sharmas case, 2016 ACJ 2723 (SC), this court was dealing with the payments made to the legal heirs of the deceased in terms of rule 5(1) of the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (for short the said Rules). Under rule 5 of the said Rules on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods set out in the Rules and after the said period the family was entitled to receive family pension. The family was also entitled to retain the Government accommodation for a period of one year in addition to payment of Rs. 25,000 as ex gratia. In this case, the three-Judge Bench adverted to the principles laid down in Helen C. Rebellos case 1999 ACJ 10 (SC), followed in Patricia Jean Mahajans case 2002 ACJ 1441 (SC), and came to the conclusion that the decision in Vimal Kanwars case 2013 ACJ 1441 (SC), did not take a view contrary to Helen C. Rebello or Patricia Jean Mahajan cases (supra). The following observations are relevant: (12) The principle expounded in this decision in Helen C. Rebellos case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the pecuniary advantage from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the MotorVehicles Act, 1988. This principle has been re- stated in the subsequent decision of the two-Judge Bench in Patricia Jean Mahajans case, 2002 ACJ 1441 (SC), to reject the argument of the insurance company to deduct the amount receivable by the dependants of the deceased by way of social security compensation and life insurance policy. However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the head of pay and other allowances last drawn by the employee. We may note that on principle this court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan (supra), but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules. 12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary. 12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference. 13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.
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0
### Explanation:
age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment59.7. The age of the deceased should be the basis for applying the multiplier59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years10. Applying the principles aforesaid to the present case, we find that the award made by the Tribunal suffered from a few fundamental errors and shortcomings as regards the assessment of multiplicand. The Tribunal, instead of taking the last drawn emoluments of the deceased, chose to proceed on his enhanced projected emoluments after the expected promotion and pay revision. However, thereafter, the Tribunal did not provide for any further future prospects. The Tribunal also did not make any deduction towards the tax component. Moreover, the Tribunal deducted one-third towards personal expenses of the deceased though he had had five dependents. Then, the Tribunal applied the multiplier of 16. Apparently, the assessment made by the Tribunal could not have been countenanced, for being not in conformity with the principles in Pranay Sethi (supra)11.1. The assessment so made by the High Court stands more or less in conformity with the principles enunciated in Pranay Sethi (supra). The only doubtful area is that the High Court provided for enhancement towards future prospects only at 40% on the last drawn emoluments of the deceased and not at 50% though he was shown to be in a settled employment with future chances of promotion as also pay revision. However, on the facts and in the circumstances of the present case, we are not considering any modification in the amount awarded by the High Court for a variety of factors, as indicated infra12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.
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Silver Jubilee Tailoring House And Others Vs. Chief Inspector Of Shops And Establishments And Another | to the instructions of the employer, or who has been absent from the shop for a long time as spoken to by the Inspector of Labour in his evidence, would be speak of control and supervision consistent with the character of the business. 33. That the workers work on the machines supplied by the proprietor of the shop is an important consideration in determining the nature of the relationship. If the employer provides the equipment, this is some indication that the contract is a contract of service. whereas if the other party provides the equipment, this is some evidence that he is an independent contractor. It seems that this is not based on the theory that if the employer provides the equipment he retains some greater degree of control, for, as already seen, where the control arises only from the need to protect ones own property, little significance can attach to the power of control for this purpose It seems, therefore, that the importance of the provision of equipment lies in the simple fact that, in most circumstances, where a person hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipment, whereas if he employs a servant he expects to provide them himself. It follows from this that no sensible inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment-See Atiyah, P. S., "Vicarious Liability in the Law of Torts, p. 65. 34. Section 220 (2) of the American Restatement, Agency 2d. includes among the relevant factors:"(e) Whether the employer or the workmen supplies the instrumentalities, tools, and the place of work for the person doing the work. The comment on the first part of this paragraph is in these words:"Ownership of instrumentalities: The ownership of the instrumentalities and tools used in the work is of importance. The fact that a worker supplies his own tools is some evidence that he is not a servant. On the others hand, if the worker is using his employers tools or instrumentalities especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and this indicates that the owner is a master. This fact is, however, only of evidential value.It might be that little weight can today be put upon the provisions of tools of minor character as opposed to plant and equipment on a large scale. But so far as tailoring is concerned, I think the fact that sewing machines on which the workers do the work generally belong to the employer is an important consideration for deciding that the relationship is that of master and servant." 35. Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this court is also present. 36. The reputation of a tailoring establishment depends not only on the cutter but also upon the tailors. In many cases, stitching is a delicate operation when the cloth upon which it is to be carried on is expensive. The defect in stitching might mar the appearance not only of the garment but also of its wearer. So when the tailor returns a garment, the proprietor has got to inspect is to see that it is perfect. He has to keep his customers pleased and he has also to be punctual which means that the stitching must be done according to the instruction of the employer and within the time specified. The degree of control and supervision would be different in different types of business. If an ultimate authority over the worker resided in the employer so that he was subject to the latters direction, that would be sufficient. In Humberstone v. Northern Timber Mills, (1949) 79 CLR 389, Dixon, J. said:"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latters order and directions. 37. That some of the employees take up the work from other tailoring establishments and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer. See "The Modern Law of Employment by G. H. L. Fridman, p. 18., and also, Between Patwardhan Tailors, Poona and Their Workmen, (1960) 1 Lab LJ 722, at p. 726. 38. That the workers are not obliged to work for the whole day in the shop is not very material.There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S. 2 (14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a "person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed. | 0[ds]30. During the last two decades the emphasis in the field has shifted and no longer rest so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is now no more than a factor, although an important one Seet v. Minister of Social Security (1968), 1 WLR1749, at p. 175931. The fact that generally the workers attend the shop which belongs to the employer and work there, on the machines, also belonging to him, is a relevant factor. When the services are performed generally in the employers premises, this is some indication that the contract is a contract of service. It is possible that this is another facet of the incidental feature of employment. This is the sort of situation in which a court may well feel inclined to apply the "organisation test suggested by Denning, L. J. in32. The further fact that "a worker can be removed which means nothing more than that the employer has the liberty not to give further work to an employee who has not performed his job according to the instructions of the employer, or who has been absent from the shop for a long time as spoken to by the Inspector of Labour in his evidence, would be speak of control and supervision consistent with the character of the business33. That the workers work on the machines supplied by the proprietor of the shop is an important consideration in determining the nature of the relationship. If the employer provides the equipment, this is some indication that the contract is a contract of service. whereas if the other party provides the equipment, this is some evidence that he is an independent contractor. It seems that this is not based on the theory that if the employer provides the equipment he retains some greater degree of control, for, as already seen, where the control arises only from the need to protect ones own property, little significance can attach to the power of control for this purpose It seems, therefore, that the importance of the provision of equipment lies in the simple fact that, in most circumstances, where a person hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipment, whereas if he employs a servant he expects to provide them himself. It follows from this that no sensible inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment-See Atiyah, P. S., "Vicarious Liability in the Law of Torts, p. 6535. Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this court is also present36. The reputation of a tailoring establishment depends not only on the cutter but also upon the tailors. In many cases, stitching is a delicate operation when the cloth upon which it is to be carried on is expensive. The defect in stitching might mar the appearance not only of the garment but also of its wearer. So when the tailor returns a garment, the proprietor has got to inspect is to see that it is perfect. He has to keep his customers pleased and he has also to be punctual which means that the stitching must be done according to the instruction of the employer and within the time specified. The degree of control and supervision would be different in different types of business. If an ultimate authority over the worker resided in the employer so that he was subject to the latters direction, that would be sufficient37. That some of the employees take up the work from other tailoring establishments and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer38. That the workers are not obliged to work for the whole day in the shop is not very material.There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S. 2 (14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a "person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed. | 0 | 5,978 | 971 | ### 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:
to the instructions of the employer, or who has been absent from the shop for a long time as spoken to by the Inspector of Labour in his evidence, would be speak of control and supervision consistent with the character of the business. 33. That the workers work on the machines supplied by the proprietor of the shop is an important consideration in determining the nature of the relationship. If the employer provides the equipment, this is some indication that the contract is a contract of service. whereas if the other party provides the equipment, this is some evidence that he is an independent contractor. It seems that this is not based on the theory that if the employer provides the equipment he retains some greater degree of control, for, as already seen, where the control arises only from the need to protect ones own property, little significance can attach to the power of control for this purpose It seems, therefore, that the importance of the provision of equipment lies in the simple fact that, in most circumstances, where a person hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipment, whereas if he employs a servant he expects to provide them himself. It follows from this that no sensible inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment-See Atiyah, P. S., "Vicarious Liability in the Law of Torts, p. 65. 34. Section 220 (2) of the American Restatement, Agency 2d. includes among the relevant factors:"(e) Whether the employer or the workmen supplies the instrumentalities, tools, and the place of work for the person doing the work. The comment on the first part of this paragraph is in these words:"Ownership of instrumentalities: The ownership of the instrumentalities and tools used in the work is of importance. The fact that a worker supplies his own tools is some evidence that he is not a servant. On the others hand, if the worker is using his employers tools or instrumentalities especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and this indicates that the owner is a master. This fact is, however, only of evidential value.It might be that little weight can today be put upon the provisions of tools of minor character as opposed to plant and equipment on a large scale. But so far as tailoring is concerned, I think the fact that sewing machines on which the workers do the work generally belong to the employer is an important consideration for deciding that the relationship is that of master and servant." 35. Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this court is also present. 36. The reputation of a tailoring establishment depends not only on the cutter but also upon the tailors. In many cases, stitching is a delicate operation when the cloth upon which it is to be carried on is expensive. The defect in stitching might mar the appearance not only of the garment but also of its wearer. So when the tailor returns a garment, the proprietor has got to inspect is to see that it is perfect. He has to keep his customers pleased and he has also to be punctual which means that the stitching must be done according to the instruction of the employer and within the time specified. The degree of control and supervision would be different in different types of business. If an ultimate authority over the worker resided in the employer so that he was subject to the latters direction, that would be sufficient. In Humberstone v. Northern Timber Mills, (1949) 79 CLR 389, Dixon, J. said:"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latters order and directions. 37. That some of the employees take up the work from other tailoring establishments and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer. See "The Modern Law of Employment by G. H. L. Fridman, p. 18., and also, Between Patwardhan Tailors, Poona and Their Workmen, (1960) 1 Lab LJ 722, at p. 726. 38. That the workers are not obliged to work for the whole day in the shop is not very material.There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S. 2 (14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a "person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed.
### Response:
0
### Explanation:
30. During the last two decades the emphasis in the field has shifted and no longer rest so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is now no more than a factor, although an important one Seet v. Minister of Social Security (1968), 1 WLR1749, at p. 175931. The fact that generally the workers attend the shop which belongs to the employer and work there, on the machines, also belonging to him, is a relevant factor. When the services are performed generally in the employers premises, this is some indication that the contract is a contract of service. It is possible that this is another facet of the incidental feature of employment. This is the sort of situation in which a court may well feel inclined to apply the "organisation test suggested by Denning, L. J. in32. The further fact that "a worker can be removed which means nothing more than that the employer has the liberty not to give further work to an employee who has not performed his job according to the instructions of the employer, or who has been absent from the shop for a long time as spoken to by the Inspector of Labour in his evidence, would be speak of control and supervision consistent with the character of the business33. That the workers work on the machines supplied by the proprietor of the shop is an important consideration in determining the nature of the relationship. If the employer provides the equipment, this is some indication that the contract is a contract of service. whereas if the other party provides the equipment, this is some evidence that he is an independent contractor. It seems that this is not based on the theory that if the employer provides the equipment he retains some greater degree of control, for, as already seen, where the control arises only from the need to protect ones own property, little significance can attach to the power of control for this purpose It seems, therefore, that the importance of the provision of equipment lies in the simple fact that, in most circumstances, where a person hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipment, whereas if he employs a servant he expects to provide them himself. It follows from this that no sensible inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment-See Atiyah, P. S., "Vicarious Liability in the Law of Torts, p. 6535. Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this court is also present36. The reputation of a tailoring establishment depends not only on the cutter but also upon the tailors. In many cases, stitching is a delicate operation when the cloth upon which it is to be carried on is expensive. The defect in stitching might mar the appearance not only of the garment but also of its wearer. So when the tailor returns a garment, the proprietor has got to inspect is to see that it is perfect. He has to keep his customers pleased and he has also to be punctual which means that the stitching must be done according to the instruction of the employer and within the time specified. The degree of control and supervision would be different in different types of business. If an ultimate authority over the worker resided in the employer so that he was subject to the latters direction, that would be sufficient37. That some of the employees take up the work from other tailoring establishments and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer38. That the workers are not obliged to work for the whole day in the shop is not very material.There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S. 2 (14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a "person employed within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed.
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Bank of Baroda Vs. Perchem Industries & Others | the suit out of which the plea arises was filed in 1976. In other words, section 21 is held to be applicable to pending proceedings.16. Reading section 21-A as it is, it appears to be retroactive in operation, if effect is to be given to the language and also the intent of the provision. A retrospective operation is not to be given to a statute so as to impair the existing rights or obligations, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. The Court has to interpret that language used in the Act and when the language is clear and unambiguous, it must be given effect to. The language used in the section and particularly the words "shall not be reopened by any Court" clearly indicates the intent to cover the pending suits which will include even appeals or second appeals on the date the provision is brought into force. It is at that stage the prohibition to reopen the account can be enforced. It seems that the provisions was enacted with a purpose and that purpose is to avoid different views being taken by various Courts in the matter of re-opening of the accounts of transactions between the Nationalised Banks and its debtors despite the fact that the rate of interest is charged by them in accordance with the circulars issued by the Reserve Bank of India. To avoid this difficulty, section 21-A came to be incorporated in the Banking Regulation Act. The use of the words "any Court" would in the context include every Court existing in the hierarchy of law Courts and, therefore, so long as the Court is asked to exercise its powers under the provisions of Usurious Loans Act, 1918, in a matter pending before it, provisions of section 21-A of the Banking Regulation Act will be attracted and the Court is prohibited from undertaking that exercise. In our opinion also, the Court is prohibited from entertaining the plea for re-opening the various accounts of the transactions between parties on the ground that the rate of interest is excessive, although the two suits were filed in the year 1979. In other words, the provision of section 21-A is applicable even to pending suits. The learned Trial Court was not right in re-opening the accounts of the appellant Bank and reducing the interest as stated above.17. There is yet another obstacle in the way of the respondents. Though section 21-A forbids the Courts from re-opening the transaction only on the ground of excessive interest, there are grounds in section 3 of the Usurious Loans Act which still empower the Court to open the transaction. By issuance of a notification in exercise of the powers conferred by sub-section (3) of section 1 of the Usurious Loans Act, 1918 on 29th April, 1985, the State Government issued a direction that the said Act shall not apply to loans given by all categories of Bank in the State. Clearly enough, the Usurious loans Act itself is made inapplicable to the transaction covered by the notification and the power conferred on the court to reopen such transaction as are covered by the notification is thus taken away by force of the notification itself.18. The trial Court has awarded future interest at 6% per annum on the principal sum from the date of suit till realisation. Such a grant is obviously wrong. It is a settled law that under section 34, Civil Procedure Code the liability in relation to the sum so adjudged has arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum, but shall not exceed the contractual rate of interest, or where there is no contractual rate, the rate at which moneys are lent or advanced by Nationalised Bank, in relation to commercial transactions. A commercial transactions is defined to be connected with industry, trade or business of the party incurring the liability. The transactions in two suits were commercial transactions and, therefore, ordinarily the rate of interest would be the contractual rate; otherwise, it will amount to Court granting credit facility of somebody else money at a lower rate of interest. The Banks will not grant loans at lower rate of interest. Only because the party has committed default in payment, the suit is required to be filed against such party, and such a defaulting party cannot enjoy the facility of lesser rate of interest. Therefore, ordinarily the contractual rate of interest should be the rule and departure a rare exception. In case of a mortgage suit, Order 34, Rules 2 and 4 would apply. Till the period of redemption expires the matter is considered to be in the domain of contract and the interest has to be paid at the contractual rate but after the period of redemption has expired the matter passes on from the domain of contract to that of judgment. It is, therefore, clear that the rate of interest to be charged is the contractual rate both in money decree or in a suit of mortgage (at least upto the periods of redemption). The appellant is entitled to claim interest at the contractual rate. However, in Civil Suit No. 167/79 the appellant Bank has claimed future interest at 14% per annum on the decretal amount from the date of suit till realisation and in Civil Suit No. 168/79 future interest is claimed at 13% per annum for the same period. There can be no objection for granting this relief.19. The appellant Bank is hence entitled to claim the amounts of Rs. 1,51,960.39 in Civil Suit No. 167/79 and Rs. 55,850.60 in Civil Suit No. 168/79. Future interest would be at the rate of 14 % per annum on the decretal amount from the date of suit till realisation in Civil Suit No. 167/79 and at the rate of 13% per annum on the decretal amount from the date of suit till realisation. | 1[ds]15. The learned Single judge of this Court had an occasion to deal with the point involved in (Gulabchand Laxmichand Bhutada v. The Central Bank of India and another )4, 1992 Mh.L.J. 68, wherein it was held that sectionof the Banking Regulation Act, 1918 is applicable even to pending appeals and Second Appeals and Courts are prohibited from entertaining the plea toa transaction between a debtor and a Banking Company on charging excessive interest under the provisions of Usurious Loans Act. This view was taken in Second Appeal although the suit out of which the plea arises was filed in 1976. In other words, section 21 is held to be applicable to pending proceedings.16. Reading sectionas it is, it appears to be retroactive in operation, if effect is to be given to the language and also the intent of the provision. A retrospective operation is not to be given to a statute so as to impair the existing rights or obligations, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. The Court has to interpret that language used in the Act and when the language is clear and unambiguous, it must be given effect to. The language used in the section and particularly the words "shall not be reopened by any Court" clearly indicates the intent to cover the pending suits which will include even appeals or second appeals on the date the provision is brought into force. It is at that stage the prohibition to reopen the account can be enforced. It seems that the provisions was enacted with a purpose and that purpose is to avoid different views being taken by various Courts in the matter ofof the accounts of transactions between the Nationalised Banks and its debtors despite the fact that the rate of interest is charged by them in accordance with the circulars issued by the Reserve Bank of India. To avoid this difficulty, sectioncame to be incorporated in the Banking Regulation Act. The use of the words "any Court" would in the context include every Court existing in the hierarchy of law Courts and, therefore, so long as the Court is asked to exercise its powers under the provisions of Usurious Loans Act, 1918, in a matter pending before it, provisions of sectionof the Banking Regulation Act will be attracted and the Court is prohibited from undertaking that exercise. In our opinion also, the Court is prohibited from entertaining the plea forthe various accounts of the transactions between parties on the ground that the rate of interest is excessive, although the two suits were filed in the year 1979. In other words, the provision of sectionis applicable even to pending suits. The learned Trial Court was not right inthe accounts of the appellant Bank and reducing the interest as stated above.17. There is yet another obstacle in the way of the respondents. Though sectionforbids the Courts fromthe transaction only on the ground of excessive interest, there are grounds in section 3 of the Usurious Loans Act which still empower the Court to open the transaction. By issuance of a notification in exercise of the powers conferred by(3) of section 1 of the Usurious Loans Act, 1918 on 29th April, 1985, the State Government issued a direction that the said Act shall not apply to loans given by all categories of Bank in the State. Clearly enough, the Usurious loans Act itself is made inapplicable to the transaction covered by the notification and the power conferred on the court to reopen such transaction as are covered by the notification is thus taken away by force of the notification itself.18. The trial Court has awarded future interest at 6% per annum on the principal sum from the date of suit till realisation. Such a grant is obviously wrong. It is a settled law that under section 34, Civil Procedure Code the liability in relation to the sum so adjudged has arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum, but shall not exceed the contractual rate of interest, or where there is no contractual rate, the rate at which moneys are lent or advanced by Nationalised Bank, in relation to commercial transactions. A commercial transactions is defined to be connected with industry, trade or business of the party incurring the liability. The transactions in two suits were commercial transactions and, therefore, ordinarily the rate of interest would be the contractual rate; otherwise, it will amount to Court granting credit facility of somebody else money at a lower rate of interest. The Banks will not grant loans at lower rate of interest. Only because the party has committed default in payment, the suit is required to be filed against such party, and such a defaulting party cannot enjoy the facility of lesser rate of interest. Therefore, ordinarily the contractual rate of interest should be the rule and departure a rare exception. In case of a mortgage suit, Order 34, Rules 2 and 4 would apply. Till the period of redemption expires the matter is considered to be in the domain of contract and the interest has to be paid at the contractual rate but after the period of redemption has expired the matter passes on from the domain of contract to that of judgment. It is, therefore, clear that the rate of interest to be charged is the contractual rate both in money decree or in a suit of mortgage (at least upto the periods of redemption). The appellant is entitled to claim interest at the contractual rate. However, in Civil Suit No. 167/79 the appellant Bank has claimed future interest at 14% per annum on the decretal amount from the date of suit till realisation and in Civil Suit No. 168/79 future interest is claimed at 13% per annum for the same period. There can be no objection for granting this relief.19. The appellant Bank is hence entitled to claim the amounts of Rs. 1,51,960.39 in Civil Suit No. 167/79 and Rs. 55,850.60 in Civil Suit No. 168/79. Future interest would be at the rate of 14 % per annum on the decretal amount from the date of suit till realisation in Civil Suit No. 167/79 and at the rate of 13% per annum on the decretal amount from the date of suit till realisation. | 1 | 3,265 | 1,175 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the suit out of which the plea arises was filed in 1976. In other words, section 21 is held to be applicable to pending proceedings.16. Reading section 21-A as it is, it appears to be retroactive in operation, if effect is to be given to the language and also the intent of the provision. A retrospective operation is not to be given to a statute so as to impair the existing rights or obligations, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. The Court has to interpret that language used in the Act and when the language is clear and unambiguous, it must be given effect to. The language used in the section and particularly the words "shall not be reopened by any Court" clearly indicates the intent to cover the pending suits which will include even appeals or second appeals on the date the provision is brought into force. It is at that stage the prohibition to reopen the account can be enforced. It seems that the provisions was enacted with a purpose and that purpose is to avoid different views being taken by various Courts in the matter of re-opening of the accounts of transactions between the Nationalised Banks and its debtors despite the fact that the rate of interest is charged by them in accordance with the circulars issued by the Reserve Bank of India. To avoid this difficulty, section 21-A came to be incorporated in the Banking Regulation Act. The use of the words "any Court" would in the context include every Court existing in the hierarchy of law Courts and, therefore, so long as the Court is asked to exercise its powers under the provisions of Usurious Loans Act, 1918, in a matter pending before it, provisions of section 21-A of the Banking Regulation Act will be attracted and the Court is prohibited from undertaking that exercise. In our opinion also, the Court is prohibited from entertaining the plea for re-opening the various accounts of the transactions between parties on the ground that the rate of interest is excessive, although the two suits were filed in the year 1979. In other words, the provision of section 21-A is applicable even to pending suits. The learned Trial Court was not right in re-opening the accounts of the appellant Bank and reducing the interest as stated above.17. There is yet another obstacle in the way of the respondents. Though section 21-A forbids the Courts from re-opening the transaction only on the ground of excessive interest, there are grounds in section 3 of the Usurious Loans Act which still empower the Court to open the transaction. By issuance of a notification in exercise of the powers conferred by sub-section (3) of section 1 of the Usurious Loans Act, 1918 on 29th April, 1985, the State Government issued a direction that the said Act shall not apply to loans given by all categories of Bank in the State. Clearly enough, the Usurious loans Act itself is made inapplicable to the transaction covered by the notification and the power conferred on the court to reopen such transaction as are covered by the notification is thus taken away by force of the notification itself.18. The trial Court has awarded future interest at 6% per annum on the principal sum from the date of suit till realisation. Such a grant is obviously wrong. It is a settled law that under section 34, Civil Procedure Code the liability in relation to the sum so adjudged has arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum, but shall not exceed the contractual rate of interest, or where there is no contractual rate, the rate at which moneys are lent or advanced by Nationalised Bank, in relation to commercial transactions. A commercial transactions is defined to be connected with industry, trade or business of the party incurring the liability. The transactions in two suits were commercial transactions and, therefore, ordinarily the rate of interest would be the contractual rate; otherwise, it will amount to Court granting credit facility of somebody else money at a lower rate of interest. The Banks will not grant loans at lower rate of interest. Only because the party has committed default in payment, the suit is required to be filed against such party, and such a defaulting party cannot enjoy the facility of lesser rate of interest. Therefore, ordinarily the contractual rate of interest should be the rule and departure a rare exception. In case of a mortgage suit, Order 34, Rules 2 and 4 would apply. Till the period of redemption expires the matter is considered to be in the domain of contract and the interest has to be paid at the contractual rate but after the period of redemption has expired the matter passes on from the domain of contract to that of judgment. It is, therefore, clear that the rate of interest to be charged is the contractual rate both in money decree or in a suit of mortgage (at least upto the periods of redemption). The appellant is entitled to claim interest at the contractual rate. However, in Civil Suit No. 167/79 the appellant Bank has claimed future interest at 14% per annum on the decretal amount from the date of suit till realisation and in Civil Suit No. 168/79 future interest is claimed at 13% per annum for the same period. There can be no objection for granting this relief.19. The appellant Bank is hence entitled to claim the amounts of Rs. 1,51,960.39 in Civil Suit No. 167/79 and Rs. 55,850.60 in Civil Suit No. 168/79. Future interest would be at the rate of 14 % per annum on the decretal amount from the date of suit till realisation in Civil Suit No. 167/79 and at the rate of 13% per annum on the decretal amount from the date of suit till realisation.
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Company on charging excessive interest under the provisions of Usurious Loans Act. This view was taken in Second Appeal although the suit out of which the plea arises was filed in 1976. In other words, section 21 is held to be applicable to pending proceedings.16. Reading sectionas it is, it appears to be retroactive in operation, if effect is to be given to the language and also the intent of the provision. A retrospective operation is not to be given to a statute so as to impair the existing rights or obligations, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. The Court has to interpret that language used in the Act and when the language is clear and unambiguous, it must be given effect to. The language used in the section and particularly the words "shall not be reopened by any Court" clearly indicates the intent to cover the pending suits which will include even appeals or second appeals on the date the provision is brought into force. It is at that stage the prohibition to reopen the account can be enforced. It seems that the provisions was enacted with a purpose and that purpose is to avoid different views being taken by various Courts in the matter ofof the accounts of transactions between the Nationalised Banks and its debtors despite the fact that the rate of interest is charged by them in accordance with the circulars issued by the Reserve Bank of India. To avoid this difficulty, sectioncame to be incorporated in the Banking Regulation Act. The use of the words "any Court" would in the context include every Court existing in the hierarchy of law Courts and, therefore, so long as the Court is asked to exercise its powers under the provisions of Usurious Loans Act, 1918, in a matter pending before it, provisions of sectionof the Banking Regulation Act will be attracted and the Court is prohibited from undertaking that exercise. In our opinion also, the Court is prohibited from entertaining the plea forthe various accounts of the transactions between parties on the ground that the rate of interest is excessive, although the two suits were filed in the year 1979. In other words, the provision of sectionis applicable even to pending suits. The learned Trial Court was not right inthe accounts of the appellant Bank and reducing the interest as stated above.17. There is yet another obstacle in the way of the respondents. Though sectionforbids the Courts fromthe transaction only on the ground of excessive interest, there are grounds in section 3 of the Usurious Loans Act which still empower the Court to open the transaction. By issuance of a notification in exercise of the powers conferred by(3) of section 1 of the Usurious Loans Act, 1918 on 29th April, 1985, the State Government issued a direction that the said Act shall not apply to loans given by all categories of Bank in the State. Clearly enough, the Usurious loans Act itself is made inapplicable to the transaction covered by the notification and the power conferred on the court to reopen such transaction as are covered by the notification is thus taken away by force of the notification itself.18. The trial Court has awarded future interest at 6% per annum on the principal sum from the date of suit till realisation. Such a grant is obviously wrong. It is a settled law that under section 34, Civil Procedure Code the liability in relation to the sum so adjudged has arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum, but shall not exceed the contractual rate of interest, or where there is no contractual rate, the rate at which moneys are lent or advanced by Nationalised Bank, in relation to commercial transactions. A commercial transactions is defined to be connected with industry, trade or business of the party incurring the liability. The transactions in two suits were commercial transactions and, therefore, ordinarily the rate of interest would be the contractual rate; otherwise, it will amount to Court granting credit facility of somebody else money at a lower rate of interest. The Banks will not grant loans at lower rate of interest. Only because the party has committed default in payment, the suit is required to be filed against such party, and such a defaulting party cannot enjoy the facility of lesser rate of interest. Therefore, ordinarily the contractual rate of interest should be the rule and departure a rare exception. In case of a mortgage suit, Order 34, Rules 2 and 4 would apply. Till the period of redemption expires the matter is considered to be in the domain of contract and the interest has to be paid at the contractual rate but after the period of redemption has expired the matter passes on from the domain of contract to that of judgment. It is, therefore, clear that the rate of interest to be charged is the contractual rate both in money decree or in a suit of mortgage (at least upto the periods of redemption). The appellant is entitled to claim interest at the contractual rate. However, in Civil Suit No. 167/79 the appellant Bank has claimed future interest at 14% per annum on the decretal amount from the date of suit till realisation and in Civil Suit No. 168/79 future interest is claimed at 13% per annum for the same period. There can be no objection for granting this relief.19. The appellant Bank is hence entitled to claim the amounts of Rs. 1,51,960.39 in Civil Suit No. 167/79 and Rs. 55,850.60 in Civil Suit No. 168/79. Future interest would be at the rate of 14 % per annum on the decretal amount from the date of suit till realisation in Civil Suit No. 167/79 and at the rate of 13% per annum on the decretal amount from the date of suit till realisation.
|
The Mahalaxmi Mills Ltd Vs. The Commissioner Of Income-Tax,Bombay(And Connected Appeal | particular case in giving effect to the provisions of the Indian Income-tax Act. What is necessary in law is that before an order can be made by the Central Government under S. 12, the Central Government must be satisfied that in certain cases difficulties have actually arisen in giving effect to the provisions of the Indian Income-tax Act. Once on such satisfaction an order is made it is not again necessary for the application of the order in a particular case that difficulty must be found to have arisen. A separate Order under S. 12 has not got to be made for each particular case. The order once made on the satisfaction of the Central Government that in some cases difficulties have arisen in giving effect to the provisions of the Indian Income-tax Act the order operates under its own terms and so in giving effect to the order it is not necessary for the Income-tax Officer to see first whether any difficulty has arisen.17. We are of opinion that whether any difficulty did actually arise in the cases now under consideration in applying the Indian Income-tax Act 1922, in this Part B State or not, Para. 2 of the Removal of Difficulties Order must be applied according to its terms. It is, therefore, not necessary to examine whether any such difficulty did arise in these cases.18. This brings us to Mr. Kolahs main contention that the Bhavnagar War Profits Act is not one of the laws depreciation allowed under which has to be deducted under Para. 2 of this Order. He points out that the Bhavnagar War Profits Act had ceased to be in force long before the Part B State-the United States of Saurashtra came into existence. It was, therefore, never a law of a Part B State and so depreciation which the assessee availed of under it will not come within the words "all depreciation actually allowed under any laws or rules of a Part B State relating to income-tax and super tax."This appears to be correct, but the question still remains whether the Bhavnagar War Profits Act is covered by the words " any law relating to tax on profits of business" in the paragraph. If it does, the depreciation which the assessee availed of under the Act has to be deducted in computing the written down value. Analysing the clause : "all depreciating actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax" or "any law relating to tax on profits of business", we notice that the words "of a Part B State" were used to qualify the phrase "any laws or rules in the first portion of the clause. Similar words were not used to qualify the words "any law" in the second part. According to Mr. Kolah these words "of a Part B State" were intended to be read also after the words "any law" in the latter portion and were omitted by way of ellipsis so that the sentence might not appear cumbersome. Ellipsis is a well-known figure of speech by which words needed to complete the construction or sense are omitted to produce better rhythm or balance in the structure of the sentence.19. After careful consideration we have however come to the conclusion that the omission of the words "of a Part B State" in this paragraph is not by way of ellipsis but a deliberate omission with the intention of including laws which could not be stated to be laws of a Part B State but had been laws in the same area at a time before they formed part of a Part B State. If the omission had been by way of ellipsis, as argued by Mr. Kolah, it would be reasonable to think that the words "any law relating to tax" would also have been omitted and this part of the paragraph would have read as all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax or tax on profits of business." It also appears to us that if the intention had not been to include the depreciation allowed under a law which had been law in a component part of the Part B State before it became included in the Part B State, it was unnecessary to add the words "or any law relating to tax on profits of business." For, "a law relating to tax on profits of business" is also a law relating to Income-tax and. so, depreciation actually allowed under a law relating to tax on profits of business which was law of a Part B State would come within the first portion of the clause. It is worth noticing In this connection that in 1949 when by an ordinance certain taxation laws were extended to Merged States the Central Government made under S. 8 of that Ordinance "The Taxation Laws (Merged States) (Removal of Difficulties) Order 1949". Paragraph 2 of that Order merely said "all depreciation actually allowed under any laws or rules of a merged State relating to Income-tax and super tax shall be taken into account." Nothing was said in that Order as regards "any law relating to tax on profits of business. The Removal of Difficulties Order add the words "any law relating to tax on profits of business". This appears to have been done with the deliberate intention of including depreciation allowed under such laws even though tines were not laws of a Part B State" but of a component State.20. We have come to the conclusion that the Bhavnagar War Profits Act is within the words "any law relating to tax on profits of business" in Para. 2 of the Removal of Difficulties Order. We hold that the High Court has rightly decided that the depreciation availed of by the assessee under the Bhavnagar War Profits Act was a deductible amount in computing the written down value of the assets. | 0[ds]In our opinion, the words which according to Mr. Kolah were necessary to give effect to the above intention are implicit in the very language that has been used though they have not been expressly used. The authority which made the Ordinance should be credited with having appreciated the position that no depreciation would have been allowed even if the Indian Income-tax Act, 1922 had been in force. if no claim supported by proper particulars had been made. When therefore the words "which would have been allowed to him" were used they were used to mean "which should have been allowed if proper claim had been made. For, it would be meaningless to speak of a depreciation allowance being allowed without a claim. The words used, in our opinion, are apt and sufficient to express the intention that if the Income-tax Act, 1922 which was not in force in the State before, had been in force, the depreciation that would have been allowed if proper claim had been made should be deducted in ascertaining the written downis not unreasonable to think however that when making this Ordinance the Raj Pramukh thought that if the Indian Income-tax Act, 1922, had been in force a proper claim would ordinarily have been made and whatever was allowable under that law would have been allowed as depreciation. The words used not only leave no doubt as regards the intention of the authority, but as we have already stated, are apt and sufficient to give effect to thatwords used do not however leave any doubt about the meaning and whether or not any hardship has been caused is beside the point.8. Neither of the two cases cited by Mr. Kolah in support of his argument is of any assistance.For the reasons we have already given, we are of opinion that the High Court was right in answering the question referred in these cases out of which Civil Appeals Nos. 599 and 601 have arisen, in the affirmative.The High Court has answered the second question in the affirmative and the correctness of that is no longer in dispute before us.As regards the first question it appears to us that the matter in controversy between the parties which was actually considered by the High Court is not clearly brought out by the question as framed.It will be noticed that the validity of the notification referred to in the question was the subject-matter of the second question and the correctness of the High Courts answer that it was invalid, was not questioned beforereally remained to be considered by the High Court was the effect of Para. 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1930-to which we shall later refer as the "Removal of Difficulties Order".In our opinion, the High Court rightly rejected this contention. The consequence of the Removal of Difficulties Order being validly made under S. 12 of the Finance Act, 1950, is that Para. 2 of the Order (as also the other paragraphs) have to be applied and no exception can be made.We are of opinion that whether any difficulty did actually arise in the cases now under consideration in applying the Indian Income-tax Act 1922, in this Part B State or not, Para. 2 of the Removal of Difficulties Order must be applied according to its terms. It is, therefore, not necessary to examine whether any such difficulty did arise in these cases.After careful consideration we have however come to the conclusion that the omission of the words "of a Part B State" in this paragraph is not by way of ellipsis but a deliberate omission with the intention of including laws which could not be stated to be laws of a Part B State but had been laws in the same area at a time before they formed part of a Part B State. If the omission had been by way of ellipsis, as argued by Mr. Kolah, it would be reasonable to think that the words "any law relating to tax" would also have been omitted and this part of the paragraph would have read as all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax or tax on profits of business." It also appears to us that if the intention had not been to include the depreciation allowed under a law which had been law in a component part of the Part B State before it became included in the Part B State, it was unnecessary to add the words "or any law relating to tax on profits of business." For, "a law relating to tax on profits of business" is also a law relating to Income-tax and. so, depreciation actually allowed under a law relating to tax on profits of business which was law of a Part B State would come within the first portion of the clause. It is worth noticing In this connection that in 1949 when by an ordinance certain taxation laws were extended to Merged States the Central Government made under S. 8 of that Ordinance "The Taxation Laws (Merged States) (Removal of Difficulties) Order 1949". Paragraph 2 of that Order merely said "all depreciation actually allowed under any laws or rules of a merged State relating to Income-tax and super tax shall be taken into account." Nothing was said in that Order as regards "any law relating to tax on profits of business. The Removal of Difficulties Order add the words "any law relating to tax on profits of business". This appears to have been done with the deliberate intention of including depreciation allowed under such laws even though tines were not laws of a Part B State" but of a component State.20. We have come to the conclusion that the Bhavnagar War Profits Act is within the words "any law relating to tax on profits of business" in Para. 2 of the Removal of Difficulties Order. We hold that the High Court has rightly decided that the depreciation availed of by the assessee under the Bhavnagar War Profits Act was a deductible amount in computing the written down value of the assets. | 0 | 4,550 | 1,125 | ### 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:
particular case in giving effect to the provisions of the Indian Income-tax Act. What is necessary in law is that before an order can be made by the Central Government under S. 12, the Central Government must be satisfied that in certain cases difficulties have actually arisen in giving effect to the provisions of the Indian Income-tax Act. Once on such satisfaction an order is made it is not again necessary for the application of the order in a particular case that difficulty must be found to have arisen. A separate Order under S. 12 has not got to be made for each particular case. The order once made on the satisfaction of the Central Government that in some cases difficulties have arisen in giving effect to the provisions of the Indian Income-tax Act the order operates under its own terms and so in giving effect to the order it is not necessary for the Income-tax Officer to see first whether any difficulty has arisen.17. We are of opinion that whether any difficulty did actually arise in the cases now under consideration in applying the Indian Income-tax Act 1922, in this Part B State or not, Para. 2 of the Removal of Difficulties Order must be applied according to its terms. It is, therefore, not necessary to examine whether any such difficulty did arise in these cases.18. This brings us to Mr. Kolahs main contention that the Bhavnagar War Profits Act is not one of the laws depreciation allowed under which has to be deducted under Para. 2 of this Order. He points out that the Bhavnagar War Profits Act had ceased to be in force long before the Part B State-the United States of Saurashtra came into existence. It was, therefore, never a law of a Part B State and so depreciation which the assessee availed of under it will not come within the words "all depreciation actually allowed under any laws or rules of a Part B State relating to income-tax and super tax."This appears to be correct, but the question still remains whether the Bhavnagar War Profits Act is covered by the words " any law relating to tax on profits of business" in the paragraph. If it does, the depreciation which the assessee availed of under the Act has to be deducted in computing the written down value. Analysing the clause : "all depreciating actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax" or "any law relating to tax on profits of business", we notice that the words "of a Part B State" were used to qualify the phrase "any laws or rules in the first portion of the clause. Similar words were not used to qualify the words "any law" in the second part. According to Mr. Kolah these words "of a Part B State" were intended to be read also after the words "any law" in the latter portion and were omitted by way of ellipsis so that the sentence might not appear cumbersome. Ellipsis is a well-known figure of speech by which words needed to complete the construction or sense are omitted to produce better rhythm or balance in the structure of the sentence.19. After careful consideration we have however come to the conclusion that the omission of the words "of a Part B State" in this paragraph is not by way of ellipsis but a deliberate omission with the intention of including laws which could not be stated to be laws of a Part B State but had been laws in the same area at a time before they formed part of a Part B State. If the omission had been by way of ellipsis, as argued by Mr. Kolah, it would be reasonable to think that the words "any law relating to tax" would also have been omitted and this part of the paragraph would have read as all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax or tax on profits of business." It also appears to us that if the intention had not been to include the depreciation allowed under a law which had been law in a component part of the Part B State before it became included in the Part B State, it was unnecessary to add the words "or any law relating to tax on profits of business." For, "a law relating to tax on profits of business" is also a law relating to Income-tax and. so, depreciation actually allowed under a law relating to tax on profits of business which was law of a Part B State would come within the first portion of the clause. It is worth noticing In this connection that in 1949 when by an ordinance certain taxation laws were extended to Merged States the Central Government made under S. 8 of that Ordinance "The Taxation Laws (Merged States) (Removal of Difficulties) Order 1949". Paragraph 2 of that Order merely said "all depreciation actually allowed under any laws or rules of a merged State relating to Income-tax and super tax shall be taken into account." Nothing was said in that Order as regards "any law relating to tax on profits of business. The Removal of Difficulties Order add the words "any law relating to tax on profits of business". This appears to have been done with the deliberate intention of including depreciation allowed under such laws even though tines were not laws of a Part B State" but of a component State.20. We have come to the conclusion that the Bhavnagar War Profits Act is within the words "any law relating to tax on profits of business" in Para. 2 of the Removal of Difficulties Order. We hold that the High Court has rightly decided that the depreciation availed of by the assessee under the Bhavnagar War Profits Act was a deductible amount in computing the written down value of the assets.
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not been expressly used. The authority which made the Ordinance should be credited with having appreciated the position that no depreciation would have been allowed even if the Indian Income-tax Act, 1922 had been in force. if no claim supported by proper particulars had been made. When therefore the words "which would have been allowed to him" were used they were used to mean "which should have been allowed if proper claim had been made. For, it would be meaningless to speak of a depreciation allowance being allowed without a claim. The words used, in our opinion, are apt and sufficient to express the intention that if the Income-tax Act, 1922 which was not in force in the State before, had been in force, the depreciation that would have been allowed if proper claim had been made should be deducted in ascertaining the written downis not unreasonable to think however that when making this Ordinance the Raj Pramukh thought that if the Indian Income-tax Act, 1922, had been in force a proper claim would ordinarily have been made and whatever was allowable under that law would have been allowed as depreciation. The words used not only leave no doubt as regards the intention of the authority, but as we have already stated, are apt and sufficient to give effect to thatwords used do not however leave any doubt about the meaning and whether or not any hardship has been caused is beside the point.8. Neither of the two cases cited by Mr. Kolah in support of his argument is of any assistance.For the reasons we have already given, we are of opinion that the High Court was right in answering the question referred in these cases out of which Civil Appeals Nos. 599 and 601 have arisen, in the affirmative.The High Court has answered the second question in the affirmative and the correctness of that is no longer in dispute before us.As regards the first question it appears to us that the matter in controversy between the parties which was actually considered by the High Court is not clearly brought out by the question as framed.It will be noticed that the validity of the notification referred to in the question was the subject-matter of the second question and the correctness of the High Courts answer that it was invalid, was not questioned beforereally remained to be considered by the High Court was the effect of Para. 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1930-to which we shall later refer as the "Removal of Difficulties Order".In our opinion, the High Court rightly rejected this contention. The consequence of the Removal of Difficulties Order being validly made under S. 12 of the Finance Act, 1950, is that Para. 2 of the Order (as also the other paragraphs) have to be applied and no exception can be made.We are of opinion that whether any difficulty did actually arise in the cases now under consideration in applying the Indian Income-tax Act 1922, in this Part B State or not, Para. 2 of the Removal of Difficulties Order must be applied according to its terms. It is, therefore, not necessary to examine whether any such difficulty did arise in these cases.After careful consideration we have however come to the conclusion that the omission of the words "of a Part B State" in this paragraph is not by way of ellipsis but a deliberate omission with the intention of including laws which could not be stated to be laws of a Part B State but had been laws in the same area at a time before they formed part of a Part B State. If the omission had been by way of ellipsis, as argued by Mr. Kolah, it would be reasonable to think that the words "any law relating to tax" would also have been omitted and this part of the paragraph would have read as all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super tax or tax on profits of business." It also appears to us that if the intention had not been to include the depreciation allowed under a law which had been law in a component part of the Part B State before it became included in the Part B State, it was unnecessary to add the words "or any law relating to tax on profits of business." For, "a law relating to tax on profits of business" is also a law relating to Income-tax and. so, depreciation actually allowed under a law relating to tax on profits of business which was law of a Part B State would come within the first portion of the clause. It is worth noticing In this connection that in 1949 when by an ordinance certain taxation laws were extended to Merged States the Central Government made under S. 8 of that Ordinance "The Taxation Laws (Merged States) (Removal of Difficulties) Order 1949". Paragraph 2 of that Order merely said "all depreciation actually allowed under any laws or rules of a merged State relating to Income-tax and super tax shall be taken into account." Nothing was said in that Order as regards "any law relating to tax on profits of business. The Removal of Difficulties Order add the words "any law relating to tax on profits of business". This appears to have been done with the deliberate intention of including depreciation allowed under such laws even though tines were not laws of a Part B State" but of a component State.20. We have come to the conclusion that the Bhavnagar War Profits Act is within the words "any law relating to tax on profits of business" in Para. 2 of the Removal of Difficulties Order. We hold that the High Court has rightly decided that the depreciation availed of by the assessee under the Bhavnagar War Profits Act was a deductible amount in computing the written down value of the assets.
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Joint Commercial Officer, Division Ii,Madras-2 Etc Vs. Spencer & Co. Etc. Etc | through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration. . . ..." Total turnover is defined in Sec. 2 (q) of the Act as "the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax". The question is whether the sales tax collected by these assessees under Section 21-A of the Madras Prohibition Act,1937 can be treated as part of their total turnover. Section 21-A, so far as it is relevant for the present purpose, is in these terms:" Every person or institution which sells foreign liquor(a) x x x x(b) x x x xshall collect from the purchaser and pay over to the Government at such intervals and in such manner as may be prescribed, a sales tax calculated at the rate of eight annas in the rupee, or at such other rate as may be notified by the Government from time to time, on the price of the liquor so sold."Counsel for the appellants contended relying on several decisions of this court to which we shall presently refer, that the amounts collected by the assessees by way of sales tax from the purchasers were part of their total turnover and as such liable to be taxed under Section 3 (1) of the Madras General Sales Tax Act 1959. In M/s. George Dakes (P) Ltd. v. State of Madras, (1962) 2 MR 570 = (AIR 1972 SC 1037) this Court considered the question whether inclusion of the amounts collected by the appellants in that case as sales tax under the Madras General Sales Tax Act, 1939 was valid. The expression turnover in the 1939 Act meant, as it does in the 1959 Act, aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration. This Court observed:"......when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to pay for the goods includes the tax as well and the aggregate amount so paid would fall within the definition of turnover..... so far as the purchaser is concerned, he pays for the goods what the seller demands, viz, price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."A similar view was taken by this Court in State of Kerala v. Ramaswamy Iyer and Sons, (1966) 3 SCR 582 = (AIR 1966 SC 1738 ). This was a case under the Travancore Cochin General Sales Tax Act, 1950. Here also the decision turned on the definition of turnover which is similar to the definition of the term in the Madras General Sales Tax Act, 1959. The position was further explained in Delhi Cloth and General Mills Ltd, v. Commr. of Sales Tax, Indore, 1971 (Supp) SCR 945 = (AIR 1971 SC 2216 = 1971 Tax LR 1510) which was a case Under the Madhya Pradesh General Sales Tax Act, 1958. The relevant provisions of this Act appear to be similar to those of the Madras General Sales Tax Act, 1959. Stating that the liability to pay tax under the Act is that of the dealer, Hegde J. speaking for the Court said that the Act did not confer"any statutory power on the dealer to collect sales tax as such from any class of buyers.....Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers same can only be considered as valuable consideration for the goods sold".3. It is clear from Sec. 21-A of the Madras Prohibition Act, 1937 that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller. This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under S. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the seller is required to collect the tax from the purchaser which he has to pay over to the Government. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover. Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods although "the price is expressed as X plus purchase tax" Paprika Ltd. v. Board of Trade (1944) 1 All ER 372. But the amounts collected by the assesses concerned in these appeals under a statutory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959. | 0[ds]3. It is clear from Sec. 21-A of the Madras Prohibition Act, 1937 that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller. This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under S. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the seller is required to collect the tax from the purchaser which he has to pay over to the Government. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover. Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods although "the price is expressed as X plus purchase tax" Paprika Ltd. v. Board of Trade (1944) 1 All ER 372. But the amounts collected by the assesses concerned in these appeals under a statutory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959. | 0 | 1,404 | 270 | ### 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:
through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration. . . ..." Total turnover is defined in Sec. 2 (q) of the Act as "the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax". The question is whether the sales tax collected by these assessees under Section 21-A of the Madras Prohibition Act,1937 can be treated as part of their total turnover. Section 21-A, so far as it is relevant for the present purpose, is in these terms:" Every person or institution which sells foreign liquor(a) x x x x(b) x x x xshall collect from the purchaser and pay over to the Government at such intervals and in such manner as may be prescribed, a sales tax calculated at the rate of eight annas in the rupee, or at such other rate as may be notified by the Government from time to time, on the price of the liquor so sold."Counsel for the appellants contended relying on several decisions of this court to which we shall presently refer, that the amounts collected by the assessees by way of sales tax from the purchasers were part of their total turnover and as such liable to be taxed under Section 3 (1) of the Madras General Sales Tax Act 1959. In M/s. George Dakes (P) Ltd. v. State of Madras, (1962) 2 MR 570 = (AIR 1972 SC 1037) this Court considered the question whether inclusion of the amounts collected by the appellants in that case as sales tax under the Madras General Sales Tax Act, 1939 was valid. The expression turnover in the 1939 Act meant, as it does in the 1959 Act, aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration. This Court observed:"......when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to pay for the goods includes the tax as well and the aggregate amount so paid would fall within the definition of turnover..... so far as the purchaser is concerned, he pays for the goods what the seller demands, viz, price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."A similar view was taken by this Court in State of Kerala v. Ramaswamy Iyer and Sons, (1966) 3 SCR 582 = (AIR 1966 SC 1738 ). This was a case under the Travancore Cochin General Sales Tax Act, 1950. Here also the decision turned on the definition of turnover which is similar to the definition of the term in the Madras General Sales Tax Act, 1959. The position was further explained in Delhi Cloth and General Mills Ltd, v. Commr. of Sales Tax, Indore, 1971 (Supp) SCR 945 = (AIR 1971 SC 2216 = 1971 Tax LR 1510) which was a case Under the Madhya Pradesh General Sales Tax Act, 1958. The relevant provisions of this Act appear to be similar to those of the Madras General Sales Tax Act, 1959. Stating that the liability to pay tax under the Act is that of the dealer, Hegde J. speaking for the Court said that the Act did not confer"any statutory power on the dealer to collect sales tax as such from any class of buyers.....Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers same can only be considered as valuable consideration for the goods sold".3. It is clear from Sec. 21-A of the Madras Prohibition Act, 1937 that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller. This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under S. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the seller is required to collect the tax from the purchaser which he has to pay over to the Government. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover. Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods although "the price is expressed as X plus purchase tax" Paprika Ltd. v. Board of Trade (1944) 1 All ER 372. But the amounts collected by the assesses concerned in these appeals under a statutory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959.
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### Explanation:
3. It is clear from Sec. 21-A of the Madras Prohibition Act, 1937 that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller. This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under S. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the seller is required to collect the tax from the purchaser which he has to pay over to the Government. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover. Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods although "the price is expressed as X plus purchase tax" Paprika Ltd. v. Board of Trade (1944) 1 All ER 372. But the amounts collected by the assesses concerned in these appeals under a statutory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959.
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Bennett Coleman & Company Limited Times of India Bldg Vs. The Assistant Commissioner of Wealth Tax | the legal ownership of the assessee only on that date, can be said to be "belonging" to the assessee as on the valuation date of 31st March, 1993 so as to be liable to wealth tax for the assessment year 1993-944. A few jurisdictional facts. There is no dispute that the society had granted no objection to the previous member to sell the property before 1.4.1993. There is also no dispute that there was an agreement to sell between the appellant and the previous owner and full consideration had been paid before 1.4.1993. There is also no dispute that the resolution was passed by the society admitting the appellant as a member before 1.4.1993. There is a further finding that the appellant themselves included the said property as their assets in their books for the Annual year 1992-93.5. For considering the question of law what is relevant is Section 4(7) of the Wealth Tax Act,1957. The section as reproduced is as of 1.4.1997."Where the assessee is a member of a co-operative society, company or other association of persons and a building or part thereof is allotted or leased to him under a house building scheme of the society, company or association, as the case may be, the assessee shall, notwithstanding anything contained in this Act or any other law for the time being in force, be deemed to be the owner of such building or part and the value of such building or part shall be included in computing the net wealth of the assessee; and, in determining the value of such building or part, the value of any outstanding installments of the amount payable under such scheme by the assessee to the society, company or association towards the cost of such building or part and the land appurtenant thereto shall, whether the amount so payable is described as such or in any other manner is such scheme, be deducted as a debt owed by him in relation to such building or part".A reading of the said sub section would indicate, that the requirements are that the assessee must be a member and further that building or part thereof is allotted or leased to them. If these two conditions are satisfied then notwithstanding anything contained in the Act or any other law for the time being in force, such assessee would be deemed to be the owner of such building or part thereof and the valuation of such or part shall be included in computing the net wealth of the assessee.6. The learned counsel for the appellant seeks to rely on the rules framed under the Maharashtra Co. operative Societies Rules, 1961 and placed emphasis on Rule 24 which reads as under.24. Procedure for transfer of shares :-(1) No transfer of shares shall be effective unless:-(a) It is made in accordance with the provisions of the bye-laws;(b) A clear fifteen days notice in writing is given to the society indicating therein the name of the proposed transferee, his consent, his application for membership, where necessary and the value proposed to be paid by the transferee;(c) All liabilities of the transferor due to the society are discharged and(d) The transfer is registered in the books of the society.(2) Any charge in favour of the society on the share so transferred will continue unless discharged otherwise."We may also refer to the definition of a member under Maharashtra Co-operative Societies Act, which reads as under."Member" means a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathizer member".Thus, it is clear that so far as the assessee is concerned the assessee was admitted as member before 1.4.1993.7. The argument canvassed by the assessee is that no transfer of shares shall be affected unless the transfer is registered in the books of the society. In short, the learned counsel is seeking to place reliance on the aforesaid proviso which is introduced under the provisions of the State Act namely Maharashtra Co-operative Act, 1960. As we have already noted the Wealth Tax Act for considering the "assets" as that of the assesses does not require transfer of shares. All that it requires is admission to membership and allotment of a building or part of a building. Allotment to that extent does not require transfer of shares of the society. Section 4(7) of the Wealth Tax Act which is a central legislation has not incorporated by reference or otherwise the definition of the State Act, or the rules made thereunder for the purpose of reading the provisions of the Wealth Tax Act. That would not be possible considering that each State will have its own laws. What therefore, must be considered are the provisions and the requirements as contained in the Wealth Tax Act. The Act requires only two requirements firstly that the assessee must be a member and secondly the assessee shall be allotted a building or part of the building. In the instant case, as noticed by us, both the requirements are satisfied. Allotment being by purchaser from the previous member and the society giving its no objection to the sale and the assessee being put in possession before the relevant date by the previous member.8. On behalf of the appellant the learned counsel sought to place reliance on the judgment of the Supreme Court in the case of Late Nawab Sir Mir Osman Ali Khan Vs. Commissioner of Wealth Tax, Hyderabad (162 ITR 888) . In that case what the Supreme Court was concerned was the expression "belonging to" an assessee. On the facts there the Apex court noticed that there was no transfer of ownership of the property in the name of the vendee and the assessee continued to be the owner though in part performance of the contract the vendee had been put in possession. Admittedly the said sale deed entered into had not been registered. | 0[ds]A reading of the said sub section would indicate, that the requirements are that the assessee must be a member and further that building or part thereof is allotted or leased to them. If these two conditions are satisfied then notwithstanding anything contained in the Act or any other law for the time being in force, such assessee would be deemed to be the owner of such building or part thereof and the valuation of such or part shall be included in computing the net wealth of thewe have already noted the Wealth Tax Act for considering the "assets" as that of the assesses does not require transfer of shares. All that it requires is admission to membership and allotment of a building or part of a building. Allotment to that extent does not require transfer of shares of the society. Section 4(7) of the Wealth Tax Act which is a central legislation has not incorporated by reference or otherwise the definition of the State Act, or the rules made thereunder for the purpose of reading the provisions of the Wealth Tax Act. That would not be possible considering that each State will have its own laws. What therefore, must be considered are the provisions and the requirements as contained in the Wealth Tax Act. The Act requires only two requirements firstly that the assessee must be a member and secondly the assessee shall be allotted a building or part of the building. In the instant case, as noticed by us, both the requirements are satisfied. Allotment being by purchaser from the previous member and the society giving its no objection to the sale and the assessee being put in possession before the relevant date by the previous member.8. On behalf of the appellant the learned counsel sought to place reliance on the judgment of the Supreme Court in the case of Late Nawab Sir Mir Osman Ali Khan Vs. Commissioner of Wealth Tax, Hyderabad (162 ITR 888) . In that case what the Supreme Court was concerned was the expression "belonging to" an assessee. On the facts there the Apex court noticed that there was no transfer of ownership of the property in the name of the vendee and the assessee continued to be the owner though in part performance of the contract the vendee had been put in possession. Admittedly the said sale deed entered into had not been registered. | 0 | 1,162 | 435 | ### 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:
the legal ownership of the assessee only on that date, can be said to be "belonging" to the assessee as on the valuation date of 31st March, 1993 so as to be liable to wealth tax for the assessment year 1993-944. A few jurisdictional facts. There is no dispute that the society had granted no objection to the previous member to sell the property before 1.4.1993. There is also no dispute that there was an agreement to sell between the appellant and the previous owner and full consideration had been paid before 1.4.1993. There is also no dispute that the resolution was passed by the society admitting the appellant as a member before 1.4.1993. There is a further finding that the appellant themselves included the said property as their assets in their books for the Annual year 1992-93.5. For considering the question of law what is relevant is Section 4(7) of the Wealth Tax Act,1957. The section as reproduced is as of 1.4.1997."Where the assessee is a member of a co-operative society, company or other association of persons and a building or part thereof is allotted or leased to him under a house building scheme of the society, company or association, as the case may be, the assessee shall, notwithstanding anything contained in this Act or any other law for the time being in force, be deemed to be the owner of such building or part and the value of such building or part shall be included in computing the net wealth of the assessee; and, in determining the value of such building or part, the value of any outstanding installments of the amount payable under such scheme by the assessee to the society, company or association towards the cost of such building or part and the land appurtenant thereto shall, whether the amount so payable is described as such or in any other manner is such scheme, be deducted as a debt owed by him in relation to such building or part".A reading of the said sub section would indicate, that the requirements are that the assessee must be a member and further that building or part thereof is allotted or leased to them. If these two conditions are satisfied then notwithstanding anything contained in the Act or any other law for the time being in force, such assessee would be deemed to be the owner of such building or part thereof and the valuation of such or part shall be included in computing the net wealth of the assessee.6. The learned counsel for the appellant seeks to rely on the rules framed under the Maharashtra Co. operative Societies Rules, 1961 and placed emphasis on Rule 24 which reads as under.24. Procedure for transfer of shares :-(1) No transfer of shares shall be effective unless:-(a) It is made in accordance with the provisions of the bye-laws;(b) A clear fifteen days notice in writing is given to the society indicating therein the name of the proposed transferee, his consent, his application for membership, where necessary and the value proposed to be paid by the transferee;(c) All liabilities of the transferor due to the society are discharged and(d) The transfer is registered in the books of the society.(2) Any charge in favour of the society on the share so transferred will continue unless discharged otherwise."We may also refer to the definition of a member under Maharashtra Co-operative Societies Act, which reads as under."Member" means a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathizer member".Thus, it is clear that so far as the assessee is concerned the assessee was admitted as member before 1.4.1993.7. The argument canvassed by the assessee is that no transfer of shares shall be affected unless the transfer is registered in the books of the society. In short, the learned counsel is seeking to place reliance on the aforesaid proviso which is introduced under the provisions of the State Act namely Maharashtra Co-operative Act, 1960. As we have already noted the Wealth Tax Act for considering the "assets" as that of the assesses does not require transfer of shares. All that it requires is admission to membership and allotment of a building or part of a building. Allotment to that extent does not require transfer of shares of the society. Section 4(7) of the Wealth Tax Act which is a central legislation has not incorporated by reference or otherwise the definition of the State Act, or the rules made thereunder for the purpose of reading the provisions of the Wealth Tax Act. That would not be possible considering that each State will have its own laws. What therefore, must be considered are the provisions and the requirements as contained in the Wealth Tax Act. The Act requires only two requirements firstly that the assessee must be a member and secondly the assessee shall be allotted a building or part of the building. In the instant case, as noticed by us, both the requirements are satisfied. Allotment being by purchaser from the previous member and the society giving its no objection to the sale and the assessee being put in possession before the relevant date by the previous member.8. On behalf of the appellant the learned counsel sought to place reliance on the judgment of the Supreme Court in the case of Late Nawab Sir Mir Osman Ali Khan Vs. Commissioner of Wealth Tax, Hyderabad (162 ITR 888) . In that case what the Supreme Court was concerned was the expression "belonging to" an assessee. On the facts there the Apex court noticed that there was no transfer of ownership of the property in the name of the vendee and the assessee continued to be the owner though in part performance of the contract the vendee had been put in possession. Admittedly the said sale deed entered into had not been registered.
### Response:
0
### Explanation:
A reading of the said sub section would indicate, that the requirements are that the assessee must be a member and further that building or part thereof is allotted or leased to them. If these two conditions are satisfied then notwithstanding anything contained in the Act or any other law for the time being in force, such assessee would be deemed to be the owner of such building or part thereof and the valuation of such or part shall be included in computing the net wealth of thewe have already noted the Wealth Tax Act for considering the "assets" as that of the assesses does not require transfer of shares. All that it requires is admission to membership and allotment of a building or part of a building. Allotment to that extent does not require transfer of shares of the society. Section 4(7) of the Wealth Tax Act which is a central legislation has not incorporated by reference or otherwise the definition of the State Act, or the rules made thereunder for the purpose of reading the provisions of the Wealth Tax Act. That would not be possible considering that each State will have its own laws. What therefore, must be considered are the provisions and the requirements as contained in the Wealth Tax Act. The Act requires only two requirements firstly that the assessee must be a member and secondly the assessee shall be allotted a building or part of the building. In the instant case, as noticed by us, both the requirements are satisfied. Allotment being by purchaser from the previous member and the society giving its no objection to the sale and the assessee being put in possession before the relevant date by the previous member.8. On behalf of the appellant the learned counsel sought to place reliance on the judgment of the Supreme Court in the case of Late Nawab Sir Mir Osman Ali Khan Vs. Commissioner of Wealth Tax, Hyderabad (162 ITR 888) . In that case what the Supreme Court was concerned was the expression "belonging to" an assessee. On the facts there the Apex court noticed that there was no transfer of ownership of the property in the name of the vendee and the assessee continued to be the owner though in part performance of the contract the vendee had been put in possession. Admittedly the said sale deed entered into had not been registered.
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Municipal Council, Ahmednagar & Another Vs. Shah Hyder Beig & Others | a power of attorney in favour of Mohd. Ali Beig to act on his behalf in the proceedings before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February 1973. While it is true that the evidence tendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition. 17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N. ( 1996 SC 1954)) this Court observed as below : (SCC p. 628, para 4): "4. The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short the Act) in GOR No. 1392 Industries dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs. No. 816 Industries dated 24-3-1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs. No. 439 Industries dated 10-5-1985. In GOMs. No. 546 Industries dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed." *. 18. Similar is the view in an earlier decision of this Court in the case of Municipal Corpn. of Greater Bombay v. Industrial Development Investment. Co. (P) Ltd. ( 1996 SC 2162) Incidentally, the decision last noted was also on land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in para 29 of the Report this Court observed : (SCC p. 520): "29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third-party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." * 19. Mr. Venugopal, learned Senior Counsel appearing for one of the respondents placed strong reliance upon a recent decision of this Court in the case of Hindustan Petroleum Corpn. Ltd. v. Dolly Das ( 1999 SC 1073) . This Court in para 8 of the Report observed as below : (SCC p. 455): "8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could he invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief." * 20. The observations however pertain to the Transfer of Property Act and in particular reference to Section 105 and the facts therein are clearly distinguishable and the sentence emphasised as above depicts the disgust feature. Hindustan Petroleum case ( 1999 SC 1073) is not a case for acquisition at all and reliance thereon thus is totally misplaced. | 1[ds]12. The factual analysis in short therefore, depicts that the notification for acquisition in terms of the Act was issued in 1971, the award was published in regard thereto in 1976 and the writ petition was filed in 1992. During the pendency of the writ petition, the respondent writ petitioners moved an execution application so far as the award is concerned and thereafter moved a further civil revision application before the High Court in 1995these factual details in our view go to negate the observations of the High Court13. It is significant to note that since the year 1952, this particular property which is under acquisition was reserved for a school and playground. In the year 1963 the reservation was further continued and as such, there had not been any development of the plot by any concern since 1952 onwards. Another redeeming feature ought also to be noticed at this juncture, namely, the original writ petitioner being the father of the present respondents sent a notice in 1964 to the Municipal Council to purchase the reserved property or to release the same in favour of the writ petitioner. But there was no assertion of right thereafter and till the issuance of the notification in 1971 and possession being delivered in terms of the award in 197614. The High Court has thus misplaced the factual details and misread the same. It is now ad principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given ay to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above16. The other owner Shah Hyder Beig, however, did not put forth any claim for any specific amount but claimed only the market value of the land together with 15 per cent solatium and the cost of the building now standing on the land. Incidentally, the other owner is a resident of England and executed a power of attorney in favour of Mohd. Ali Beig to act on his behalf in the proceedings before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February 1973. While it is true that the evidence tendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition | 1 | 3,779 | 667 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
a power of attorney in favour of Mohd. Ali Beig to act on his behalf in the proceedings before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February 1973. While it is true that the evidence tendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition. 17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N. ( 1996 SC 1954)) this Court observed as below : (SCC p. 628, para 4): "4. The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short the Act) in GOR No. 1392 Industries dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs. No. 816 Industries dated 24-3-1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs. No. 439 Industries dated 10-5-1985. In GOMs. No. 546 Industries dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed." *. 18. Similar is the view in an earlier decision of this Court in the case of Municipal Corpn. of Greater Bombay v. Industrial Development Investment. Co. (P) Ltd. ( 1996 SC 2162) Incidentally, the decision last noted was also on land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966 and in para 29 of the Report this Court observed : (SCC p. 520): "29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third-party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." * 19. Mr. Venugopal, learned Senior Counsel appearing for one of the respondents placed strong reliance upon a recent decision of this Court in the case of Hindustan Petroleum Corpn. Ltd. v. Dolly Das ( 1999 SC 1073) . This Court in para 8 of the Report observed as below : (SCC p. 455): "8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could he invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief." * 20. The observations however pertain to the Transfer of Property Act and in particular reference to Section 105 and the facts therein are clearly distinguishable and the sentence emphasised as above depicts the disgust feature. Hindustan Petroleum case ( 1999 SC 1073) is not a case for acquisition at all and reliance thereon thus is totally misplaced.
### Response:
1
### Explanation:
12. The factual analysis in short therefore, depicts that the notification for acquisition in terms of the Act was issued in 1971, the award was published in regard thereto in 1976 and the writ petition was filed in 1992. During the pendency of the writ petition, the respondent writ petitioners moved an execution application so far as the award is concerned and thereafter moved a further civil revision application before the High Court in 1995these factual details in our view go to negate the observations of the High Court13. It is significant to note that since the year 1952, this particular property which is under acquisition was reserved for a school and playground. In the year 1963 the reservation was further continued and as such, there had not been any development of the plot by any concern since 1952 onwards. Another redeeming feature ought also to be noticed at this juncture, namely, the original writ petitioner being the father of the present respondents sent a notice in 1964 to the Municipal Council to purchase the reserved property or to release the same in favour of the writ petitioner. But there was no assertion of right thereafter and till the issuance of the notification in 1971 and possession being delivered in terms of the award in 197614. The High Court has thus misplaced the factual details and misread the same. It is now ad principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given ay to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above16. The other owner Shah Hyder Beig, however, did not put forth any claim for any specific amount but claimed only the market value of the land together with 15 per cent solatium and the cost of the building now standing on the land. Incidentally, the other owner is a resident of England and executed a power of attorney in favour of Mohd. Ali Beig to act on his behalf in the proceedings before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February 1973. While it is true that the evidence tendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition
|
Ashwani Kumar @ Ashu & Another Vs. State of Punjab | of accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses….” 18. The prosecution had made the witness available for test identification but the concerned accused had refused to participate in the test. Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeet Singh. The fact that a photograph of Jassi (Ext.P-38) was recovered pursuant to disclosure statement by Ashwani Kumar is another circumstance. That photograph (Ext.P-38) was recovered from Bolara Farm which was under the control of Anil Kumar. The description of Jassi in Gurumukhi on the back side of the photograph is crucial. Refusal on part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302 IPC. 19. We now deal with the case of the other appellants. The submission advanced by Shri Tulsi that the subsequent judgment will operate as issue estoppel is not correct. First and foremost the offences are different and distinct. The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The attempt on part of Mr. Tulsi is just the opposite. He seeks to rely on the finding at a subsequent stage to up-set a finding of fact recorded on a previous occasion. The law on the point was succinctly stated by this Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat (2012) 7 SCC 621 )in following words: “23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue…” We therefore reject the submission. 20. As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him. | 0[ds]Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeeton part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion.As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him. | 0 | 5,213 | 624 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
of accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses….” 18. The prosecution had made the witness available for test identification but the concerned accused had refused to participate in the test. Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeet Singh. The fact that a photograph of Jassi (Ext.P-38) was recovered pursuant to disclosure statement by Ashwani Kumar is another circumstance. That photograph (Ext.P-38) was recovered from Bolara Farm which was under the control of Anil Kumar. The description of Jassi in Gurumukhi on the back side of the photograph is crucial. Refusal on part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302 IPC. 19. We now deal with the case of the other appellants. The submission advanced by Shri Tulsi that the subsequent judgment will operate as issue estoppel is not correct. First and foremost the offences are different and distinct. The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The attempt on part of Mr. Tulsi is just the opposite. He seeks to rely on the finding at a subsequent stage to up-set a finding of fact recorded on a previous occasion. The law on the point was succinctly stated by this Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat (2012) 7 SCC 621 )in following words: “23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue…” We therefore reject the submission. 20. As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.
### Response:
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### Explanation:
Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeeton part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion.As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.
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