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Workmen of National Tobacco Company, Limited Vs. National Tobacco Company, Limited | our opinion, the argument of the appellants is well-founded and must be accepted as correct. It is well-established that the onus is on an employer to prove the claim to rehabilitation by leading positive and reliable evidence. [See Associated Cement Companies, Ltd. (Dwarka Cement Works, Dwarka and Bombay), and others v. Their workmen (1959 - I L.L.J. 644).] The employer has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points, the claim for rehabilitation must be rejected. In the present case, the company has not adduced satisfactory evidence before the tribunal for determining the multipliers or divisors for calculating rehabilitation charges. Two witnesses were examined on behalf of the company, viz., Sri Ajit Kumar Mitra, accountant, O.P.W. 1, and Sri A. M. Sen, ex-general factory manager, O.P.W. 2. Sri Ajit Kumar Mitra admitted that he had no expert knowledge for determining either multipliers or divisors. His evidence was based partly on the recent price list of machineries and partly on the information obtained from Sri A. M. Sen, ex-general factory manager. Sri A. M. Sen, O.P.W. 2, conceded that he was not an engineer and that he had no particular facts or figures in his possession to show as to how the calculation was made. Sri A. M. Sen admitted that he had no diploma or degree in mechanical engineering. He had originally worked as a chemist in the company. He admitted there were mechanical, electrical and refrigerator engineers in the company. No evidence has been adduced on behalf of the company to explain why a mechanical engineer was not examined for determining either multipliers or divisors for calculating the rehabilitation charges. The tribunal has subjected the evidence of O.P.Ws. 1 and 2 to much criticism and has, in substance, rejected their evidence on this point. The tribunal has thereafter determined the multipliers and divisors on its own calculation and by a process of guess-work. In our opinion, therefore, the findings of the tribunal are vitiated because of total lack of evidence to support them. It is manifest that the company has failed to produce positive and reliable evidence on the question of rehabilitation and the amount of extra rehabilitation charges, viz., Rs. 7, 30, 931, allowed by the tribunal must be therefore added back to the total available surplus mentioned in the award. We, therefore, determined the amount of available surplus to be Rs. 14, 32, 460 plus Rs. 7, 30, 931 equal to Rs. 21, 63, 391. The monthly remuneration paid to the employees during the year 1960 was Rs. 5, 56, 456 and taking into account all the circumstances of the case we consider that the workmen can legitimately claim two months wages as bonus. We, therefore, direct that the company should pay to the workmen for the year 1960, two-twelfths of the annual wages as bonus. There is no evidence adduced before the tribunal to show as to what is the total amount of basis wages paid to the workmen. The evidence only indicates the payment of the consolidated wages. We accordingly direct that bonus be calculated, in the particular circumstances of this case, on the basis of consolidated wages. In making the direction that two-twelfths of the annual wages should be paid as a bonus, we have borne in mind the fact that the respondent will get rebate of Income-tax on the additional amount of bonus which he has been ordered to pay.We should make it clear that it will be open to the company to adduce better evidence with regard to its claim for rehabilitation for the year 1961 or any other succeeding year and the quantum of bonus determined in the present case for the year 1960 will not be treated as a binding precedent for succeeding years.4. Sri Chari, on behalf of the appellants, stressed another point in the course of the argument. It was submitted that in the distribution of the available surplus the tribunal has not granted a fair and equitable share to the workmen. Sri Chari pointed out that the wage-structure of the company has not reached the standard of living wage. It was pointed out by the learned counsel that the company had declared 16 per cent. dividend on its ordinary shares. Reference was also made to the circumstance that the company has built up substantial reserve to the extent of over a crore of rupees which is composed of general reserve and reserve for capital expenditure. In our opinion, there is substance in the argument advanced by Sri Chari. It is true that no inflexible rule can be laid down as regards the distribution of the available surplus but taking all the relevant factors into consideration as pointed out in Associated Cement Companies, Ltd. (Dwarka Cement Works), and others v. Their workmen [1959 - I L.L.J. 644] (vide supra) we are of opinion that the workmen are entitled to about half the available surplus as calculated above. In the absence of any exceptionable circumstance it would normally not be unreasonable if the distribution of available surplus is made in such a manner as to leave to the employer and industry on the one hand, and the workmen, on the other hand, approximately equal benefits. We are, therefore, directing in this case that the company should pay to the workmen for the year 1960 about Rs. 11, 12, 000 and odd equivalent to two-twelfths annual wages calculated on the basis of consolidated wages.For the reasons already given we direct that the award of the industrial tribunal shall be modified and the workmen should be paid two-twelfths of the annual wages as bonus for the year 1960 and the calculation of bonus should be made on the basis of consolidated wages.5. | 1[ds]In our opinion, the argument of the appellants isand must be accepted as correct. It isthat the onus is on an employer to prove the claim to rehabilitation by leading positive and reliable evidence. [See Associated Cement Companies, Ltd. (Dwarka Cement Works, Dwarka and Bombay), and others v. Their workmen (1959I L.L.J. 644).] The employer has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points, the claim for rehabilitation must be rejected. In the present case, the company has not adduced satisfactory evidence before the tribunal for determining the multipliers or divisors for calculating rehabilitationour opinion, therefore, the findings of the tribunal are vitiated because of total lack of evidence to support them. It is manifest that the company has failed to produce positive and reliable evidence on the question of rehabilitation and the amount of extra rehabilitation charges, viz., Rs. 7, 30, 931, allowed by the tribunal must be therefore added back to the total available surplus mentioned in the award. We, therefore, determined the amount of available surplus to be Rs. 14, 32, 460 plus Rs. 7, 30, 931 equal to Rs. 21, 63, 391. The monthly remuneration paid to the employees during the year 1960 was Rs. 5, 56, 456 and taking into account all the circumstances of the case we consider that the workmen can legitimately claim two months wages as bonus. We, therefore, direct that the company should pay to the workmen for the year 1960,of the annual wages as bonus. There is no evidence adduced before the tribunal to show as to what is the total amount of basis wages paid to the workmen. The evidence only indicates the payment of the consolidated wages. We accordingly direct that bonus be calculated, in the particular circumstances of this case, on the basis of consolidatedshould make it clear that it will be open to the company to adduce better evidence with regard to its claim for rehabilitation for the year 1961 or any other succeeding year and the quantum of bonus determined in the present case for the year 1960 will not be treated as a binding precedent for succeedingour opinion, there is substance in the argument advanced by Sri Chari. It is true that no inflexible rule can be laid down as regards the distribution of the available surplus but taking all the relevant factors into consideration as pointed out in Associated Cement Companies, Ltd. (Dwarka Cement Works), and others v. Their workmen [1959I L.L.J. 644] (vide supra) we are of opinion that the workmen are entitled to about half the available surplus as calculated above. In the absence of any exceptionable circumstance it would normally not be unreasonable if the distribution of available surplus is made in such a manner as to leave to the employer and industry on the one hand, and the workmen, on the other hand, approximately equal benefits. We are, therefore, directing in this case that the company should pay to the workmen for the year 1960 about Rs. 11, 12, 000 and odd equivalent toannual wages calculated on the basis of consolidated wages.For the reasons already given we direct that the award of the industrial tribunal shall be modified and the workmen should be paidof the annual wages as bonus for the year 1960 and the calculation of bonus should be made on the basis of consolidated wages. | 1 | 1,449 | 691 | ### 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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our opinion, the argument of the appellants is well-founded and must be accepted as correct. It is well-established that the onus is on an employer to prove the claim to rehabilitation by leading positive and reliable evidence. [See Associated Cement Companies, Ltd. (Dwarka Cement Works, Dwarka and Bombay), and others v. Their workmen (1959 - I L.L.J. 644).] The employer has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points, the claim for rehabilitation must be rejected. In the present case, the company has not adduced satisfactory evidence before the tribunal for determining the multipliers or divisors for calculating rehabilitation charges. Two witnesses were examined on behalf of the company, viz., Sri Ajit Kumar Mitra, accountant, O.P.W. 1, and Sri A. M. Sen, ex-general factory manager, O.P.W. 2. Sri Ajit Kumar Mitra admitted that he had no expert knowledge for determining either multipliers or divisors. His evidence was based partly on the recent price list of machineries and partly on the information obtained from Sri A. M. Sen, ex-general factory manager. Sri A. M. Sen, O.P.W. 2, conceded that he was not an engineer and that he had no particular facts or figures in his possession to show as to how the calculation was made. Sri A. M. Sen admitted that he had no diploma or degree in mechanical engineering. He had originally worked as a chemist in the company. He admitted there were mechanical, electrical and refrigerator engineers in the company. No evidence has been adduced on behalf of the company to explain why a mechanical engineer was not examined for determining either multipliers or divisors for calculating the rehabilitation charges. The tribunal has subjected the evidence of O.P.Ws. 1 and 2 to much criticism and has, in substance, rejected their evidence on this point. The tribunal has thereafter determined the multipliers and divisors on its own calculation and by a process of guess-work. In our opinion, therefore, the findings of the tribunal are vitiated because of total lack of evidence to support them. It is manifest that the company has failed to produce positive and reliable evidence on the question of rehabilitation and the amount of extra rehabilitation charges, viz., Rs. 7, 30, 931, allowed by the tribunal must be therefore added back to the total available surplus mentioned in the award. We, therefore, determined the amount of available surplus to be Rs. 14, 32, 460 plus Rs. 7, 30, 931 equal to Rs. 21, 63, 391. The monthly remuneration paid to the employees during the year 1960 was Rs. 5, 56, 456 and taking into account all the circumstances of the case we consider that the workmen can legitimately claim two months wages as bonus. We, therefore, direct that the company should pay to the workmen for the year 1960, two-twelfths of the annual wages as bonus. There is no evidence adduced before the tribunal to show as to what is the total amount of basis wages paid to the workmen. The evidence only indicates the payment of the consolidated wages. We accordingly direct that bonus be calculated, in the particular circumstances of this case, on the basis of consolidated wages. In making the direction that two-twelfths of the annual wages should be paid as a bonus, we have borne in mind the fact that the respondent will get rebate of Income-tax on the additional amount of bonus which he has been ordered to pay.We should make it clear that it will be open to the company to adduce better evidence with regard to its claim for rehabilitation for the year 1961 or any other succeeding year and the quantum of bonus determined in the present case for the year 1960 will not be treated as a binding precedent for succeeding years.4. Sri Chari, on behalf of the appellants, stressed another point in the course of the argument. It was submitted that in the distribution of the available surplus the tribunal has not granted a fair and equitable share to the workmen. Sri Chari pointed out that the wage-structure of the company has not reached the standard of living wage. It was pointed out by the learned counsel that the company had declared 16 per cent. dividend on its ordinary shares. Reference was also made to the circumstance that the company has built up substantial reserve to the extent of over a crore of rupees which is composed of general reserve and reserve for capital expenditure. In our opinion, there is substance in the argument advanced by Sri Chari. It is true that no inflexible rule can be laid down as regards the distribution of the available surplus but taking all the relevant factors into consideration as pointed out in Associated Cement Companies, Ltd. (Dwarka Cement Works), and others v. Their workmen [1959 - I L.L.J. 644] (vide supra) we are of opinion that the workmen are entitled to about half the available surplus as calculated above. In the absence of any exceptionable circumstance it would normally not be unreasonable if the distribution of available surplus is made in such a manner as to leave to the employer and industry on the one hand, and the workmen, on the other hand, approximately equal benefits. We are, therefore, directing in this case that the company should pay to the workmen for the year 1960 about Rs. 11, 12, 000 and odd equivalent to two-twelfths annual wages calculated on the basis of consolidated wages.For the reasons already given we direct that the award of the industrial tribunal shall be modified and the workmen should be paid two-twelfths of the annual wages as bonus for the year 1960 and the calculation of bonus should be made on the basis of consolidated wages.5.
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1
### Explanation:
In our opinion, the argument of the appellants isand must be accepted as correct. It isthat the onus is on an employer to prove the claim to rehabilitation by leading positive and reliable evidence. [See Associated Cement Companies, Ltd. (Dwarka Cement Works, Dwarka and Bombay), and others v. Their workmen (1959I L.L.J. 644).] The employer has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points, the claim for rehabilitation must be rejected. In the present case, the company has not adduced satisfactory evidence before the tribunal for determining the multipliers or divisors for calculating rehabilitationour opinion, therefore, the findings of the tribunal are vitiated because of total lack of evidence to support them. It is manifest that the company has failed to produce positive and reliable evidence on the question of rehabilitation and the amount of extra rehabilitation charges, viz., Rs. 7, 30, 931, allowed by the tribunal must be therefore added back to the total available surplus mentioned in the award. We, therefore, determined the amount of available surplus to be Rs. 14, 32, 460 plus Rs. 7, 30, 931 equal to Rs. 21, 63, 391. The monthly remuneration paid to the employees during the year 1960 was Rs. 5, 56, 456 and taking into account all the circumstances of the case we consider that the workmen can legitimately claim two months wages as bonus. We, therefore, direct that the company should pay to the workmen for the year 1960,of the annual wages as bonus. There is no evidence adduced before the tribunal to show as to what is the total amount of basis wages paid to the workmen. The evidence only indicates the payment of the consolidated wages. We accordingly direct that bonus be calculated, in the particular circumstances of this case, on the basis of consolidatedshould make it clear that it will be open to the company to adduce better evidence with regard to its claim for rehabilitation for the year 1961 or any other succeeding year and the quantum of bonus determined in the present case for the year 1960 will not be treated as a binding precedent for succeedingour opinion, there is substance in the argument advanced by Sri Chari. It is true that no inflexible rule can be laid down as regards the distribution of the available surplus but taking all the relevant factors into consideration as pointed out in Associated Cement Companies, Ltd. (Dwarka Cement Works), and others v. Their workmen [1959I L.L.J. 644] (vide supra) we are of opinion that the workmen are entitled to about half the available surplus as calculated above. In the absence of any exceptionable circumstance it would normally not be unreasonable if the distribution of available surplus is made in such a manner as to leave to the employer and industry on the one hand, and the workmen, on the other hand, approximately equal benefits. We are, therefore, directing in this case that the company should pay to the workmen for the year 1960 about Rs. 11, 12, 000 and odd equivalent toannual wages calculated on the basis of consolidated wages.For the reasons already given we direct that the award of the industrial tribunal shall be modified and the workmen should be paidof the annual wages as bonus for the year 1960 and the calculation of bonus should be made on the basis of consolidated wages.
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N. Kasturi Vs. D. Ponnammal And Others | indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible adoptee and then deals with his rights on that footing. With the other bequests made by the said clause we are not directly concerned. Having thus made the provisions in Cl. 11 on the basis that his widow may adopt, Cl. 12 deals with an alternative situation which would arise in cases contemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and not otherwise. If that be the true position then the appellant would not be entitled to any right under Cl. 12 at all. 18. Now, as a matter of construction there are some serious difficulties in the way of accepting the appellants case. The first part of Cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife, and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and here is little doubt that Hindu law does in that sense recognizes an adoptive mother (pratigrihitrimata Mayne on Hindu Law and Usage, pp. 244, 245) (Vide : Annapurni Nachiar v. Forbes, 26 Ind App 246 at p. 253 (PC). Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown no Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants construction. 19. The second difficulty is that if the word and is read as or the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in the first part of the clause. Mr. Sastri fairly conceded that this superfluity would follow on his construction; but, he argued, that that need not necessarily defeat his construction. 20. The third difficulty in accepting the said construction is that the right which has already vested under Cl. 11 in respondent 5 is again vested by Cl. 12. As we have already seen, under Cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thavumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under Cl. 12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under Cl. 11 21. There is still one more difficulty in accepting the appellants construction, and that is in regard to the last part of Cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with Cl. 11. Faced with this difficulty Mr. Sastri suggested that the context requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted; that is to say, half the properties given to him under Cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading Cls. 11 and 12 together the High Court was right in holding that Cl. 12 was intended to operate at the time of the death of the testator and not later and that the appellant would get an interest under Cl. 12 only if the widow of the testator pre-deceased the testator and there is no adoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of Cl. 12 because at the relevant time it was not intended to be operative at all. In the circumstances the appellants the appellants rights are provided for by Cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sanstri on behalf of the appellant we see no reason to interfere with the said conclusion. | 0[ds]Therefore, there can be little doubt that what Mr. Sastri formulates as a rule of construction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the court would certainly by justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly, in regard to the rule that vesting should not be postponed the position is exactly the same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together17. The respondents case, however, is, and that is the case which has been accepted by the courts below, that Cl. 12 should be construed as operating at the time of the death of the testator and not later, and according to this argument, as soon as the testator died the said clause ceased to be applicable and the rights of the appellant fall to be considered only under Cl. 11. If Cl. 12 had to be construed by itself separately and is isolation from Cl. 11 much could have been said in favour of the contention urged by the appellant; but, in our opinion, it would be plainly inconsistent with all the rules of construction to take Cl. 12 by itself and isolate it from the rest of the will. Clauses 6 to 11 deal primarily with the adoption which the testator contemplated would be made by his widow in case he did not make an adoption in his lifetime. Clause 11 confers a vested interest of respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible adoptee and then deals with his rights on that footing. With the other bequests made by the said clause we are not directly concerned. Having thus made the provisions in Cl. 11 on the basis that his widow may adopt, Cl. 12 deals with an alternative situation which would arise in cases contemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and not otherwise. If that be the true position then the appellant would not be entitled to any right under Cl. 12 at all18. Now, as a matter of construction there are some serious difficulties in the way of accepting the appellants case. The first part of Cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife, and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and here is little doubt that Hindu law does in that sense recognizes an adoptive. Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown no Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants construction19. The second difficulty is that if the word and is read as or the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in the first part of the clause20. The third difficulty in accepting the said construction is that the right which has already vested under Cl. 11 in respondent 5 is again vested by Cl. 12. As we have already seen, under Cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thavumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under Cl. 12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under Cl. 1121. There is still one more difficulty in accepting the appellants construction, and that is in regard to the last part of Cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with Cl. 11. Faced with this difficulty Mr. Sastri suggested that the context requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted; that is to say, half the properties given to him under Cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading Cls. 11 and 12 together the High Court was right in holding that Cl. 12 was intended to operate at the time of the death of the testator and not later and that the appellant would get an interest under Cl. 12 only if the widow of the testator pre-deceased the testator and there is no adoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of Cl. 12 because at the relevant time it was not intended to be operative at all. In the circumstances the appellants the appellants rights are provided for by Cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sanstri on behalf of the appellant we see no reason to interfere with the said conclusion | 0 | 4,970 | 1,429 | ### Instruction:
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### Input:
indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible adoptee and then deals with his rights on that footing. With the other bequests made by the said clause we are not directly concerned. Having thus made the provisions in Cl. 11 on the basis that his widow may adopt, Cl. 12 deals with an alternative situation which would arise in cases contemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and not otherwise. If that be the true position then the appellant would not be entitled to any right under Cl. 12 at all. 18. Now, as a matter of construction there are some serious difficulties in the way of accepting the appellants case. The first part of Cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife, and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and here is little doubt that Hindu law does in that sense recognizes an adoptive mother (pratigrihitrimata Mayne on Hindu Law and Usage, pp. 244, 245) (Vide : Annapurni Nachiar v. Forbes, 26 Ind App 246 at p. 253 (PC). Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown no Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants construction. 19. The second difficulty is that if the word and is read as or the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in the first part of the clause. Mr. Sastri fairly conceded that this superfluity would follow on his construction; but, he argued, that that need not necessarily defeat his construction. 20. The third difficulty in accepting the said construction is that the right which has already vested under Cl. 11 in respondent 5 is again vested by Cl. 12. As we have already seen, under Cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thavumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under Cl. 12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under Cl. 11 21. There is still one more difficulty in accepting the appellants construction, and that is in regard to the last part of Cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with Cl. 11. Faced with this difficulty Mr. Sastri suggested that the context requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted; that is to say, half the properties given to him under Cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading Cls. 11 and 12 together the High Court was right in holding that Cl. 12 was intended to operate at the time of the death of the testator and not later and that the appellant would get an interest under Cl. 12 only if the widow of the testator pre-deceased the testator and there is no adoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of Cl. 12 because at the relevant time it was not intended to be operative at all. In the circumstances the appellants the appellants rights are provided for by Cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sanstri on behalf of the appellant we see no reason to interfere with the said conclusion.
### Response:
0
### Explanation:
will. Clauses 6 to 11 deal primarily with the adoption which the testator contemplated would be made by his widow in case he did not make an adoption in his lifetime. Clause 11 confers a vested interest of respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible adoptee and then deals with his rights on that footing. With the other bequests made by the said clause we are not directly concerned. Having thus made the provisions in Cl. 11 on the basis that his widow may adopt, Cl. 12 deals with an alternative situation which would arise in cases contemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and not otherwise. If that be the true position then the appellant would not be entitled to any right under Cl. 12 at all18. Now, as a matter of construction there are some serious difficulties in the way of accepting the appellants case. The first part of Cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife, and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and here is little doubt that Hindu law does in that sense recognizes an adoptive. Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown no Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants construction19. The second difficulty is that if the word and is read as or the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in the first part of the clause20. The third difficulty in accepting the said construction is that the right which has already vested under Cl. 11 in respondent 5 is again vested by Cl. 12. As we have already seen, under Cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thavumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under Cl. 12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under Cl. 1121. There is still one more difficulty in accepting the appellants construction, and that is in regard to the last part of Cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with Cl. 11. Faced with this difficulty Mr. Sastri suggested that the context requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted; that is to say, half the properties given to him under Cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading Cls. 11 and 12 together the High Court was right in holding that Cl. 12 was intended to operate at the time of the death of the testator and not later and that the appellant would get an interest under Cl. 12 only if the widow of the testator pre-deceased the testator and there is no adoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of Cl. 12 because at the relevant time it was not intended to be operative at all. In the circumstances the appellants the appellants rights are provided for by Cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sanstri on behalf of the appellant we see no reason to interfere with the said conclusion
|
New India Ass. Co. Ltd Vs. Giribala Kalita | We have heard learned counsel for the parties. This appeal is directed against the order passed by the Gauhati High Court dated 28th March, 2000 in M.A. (F) No.4 of 1994 whereby the learned Single Judge has held that the Claims Tribunal has gone wrong in not holding the insurance company liable for the full amount of compensation claimed by claimant and it has confined the liability to the extent of Rs.50,000/- only. Aggrieved against this order the present appeal was filed by the insurance company. It is alleged that on 20th November, 1987 Dambarudhar Kalita was driving his autorickshaw when he was hit by Omni bus bearing registration No.NLV-12. He sustained serious injuries and was removed to the hospital where he succumbed to his injuries. Therefore, the claimants i.e. mother and brother of the deceased Kalita filed a claim petition before the MACT, Gauhati as legal heirs of the deceased, claiming a sum of Rs.1,80,000/-. The objection of the appellant - insurance company was that their liability is to the extent of Rs.50,000/- only. Aggrieved against the order dated 25th June, 1993 an appeal was preferred by the claimants before the High Court and the High Court held that it is wrong to say that the insurance companys liability is to the extent of Rs.50,000/- only but insurance company is liable for the entire amount. Accordingly, the entire liability was fastened on the insurance company. Aggrieved against the order passed by the learned Single Judge dated 28th March, 2000 the present appeal was filed. It is alleged that the vehicle was owned by one Ramchandran. A notice was issued by this Court to Ramchandran who alleged to be the owner of the vehicle but he was not represented despite service. Therefore, again a notice was issued to Ramchandran. In pursuance of that notice the learned counsel for Ramchandran appeared and filed his counter affidavit. He pointed out in his counter affidavit that he was never granted any permit in North East States of the vehicle which is said to be met with an accident. He also submits that he was never served by the claims tribunal nor by the High Court but somehow, somebody else was representing on his behalf by filing power of attorney. He has produced the specimen signatures on the income tax clearance certificate and on two bank accounts. He has also produced the copy of the power filed before the claims tribunal wherein it is said to have been owned by Ramchandran but his signatures on the power of attorney and that of signatures which appears on the income tax return and on the bank account does not tally. Therefore, he submitted that he was never served with notice by the Tribunal or High Court and somebody else is alleged to have been appearing on behalf of Respondent No.3 herein. We have gone through the papers and we find that there is some doubt about the signatures of Respondent No.3 on the so called power of attorney and also on the written statement. The original record was brought before this Court and the certified copies of that record has been filed by the respondent which shows that the signatures of Ramchandran appears to have been forged one as they are not similar to the signatures of Ramchandran on the basis of the documents produced before us. Since it is a very serious matter that somebody else is appearing by proxy on behalf of Ramchandran and matter has been disposed of by the Court on the so called representation by Respondent No.3 whereas Respondent No.3 submits that he never appeared before the Courts below nor appointed any power of attorney. Therefore, it is a very serious matter which has to be investigated as to who is the proxy on behalf of Respondent No.3. However, looking to the facts and circumstances we think it proper that the investigation should be done to find out whether Respondent No.3 was the same person and whether he was being duly represented before the Lower Court or not. Prima facie on the basis of the record which is made available before us, it appears that Respondent No.3 was never served either before the claims tribunal or before the High Court. Consequently, we set aside the order and remit this case back to the Claims Tribunal to investigate into the matter and find out that whether Respondent No.3 was really served or not. In case the Tribunal comes to the conclusion that Ramchandran was rightly being represented then the order passed by the Claims Tribunal need not be interfered. However, the question of law which has been raised by the appellant shall remain open and should be decided in accordance with law. | 1[ds]We have gone through the papers and we find that there is some doubt about the signatures of Respondent No.3 on the so called power of attorney and also on the written statement. The original record was brought before this Court and the certified copies of that record has been filed by the respondent which shows that the signatures of Ramchandran appears to have been forged one as they are not similar to the signatures of Ramchandran on the basis of the documents produced beforeit is a very serious matter that somebody else is appearing by proxy on behalf of Ramchandran and matter has been disposed of by the Court on the so called representation by Respondent No.3 whereas Respondent No.3 submits that he never appeared before the Courts below nor appointed any power of attorney. Therefore, it is a very serious matter which has to be investigated as to who is the proxy on behalf of Respondent No.3. However, looking to the facts and circumstances we think it proper that the investigation should be done to find out whether Respondent No.3 was the same person and whether he was being duly represented before the Lower Court or not. Prima facie on the basis of the record which is made available before us, it appears that Respondent No.3 was never served either before the claims tribunal or before the High Court. | 1 | 838 | 243 | ### 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:
We have heard learned counsel for the parties. This appeal is directed against the order passed by the Gauhati High Court dated 28th March, 2000 in M.A. (F) No.4 of 1994 whereby the learned Single Judge has held that the Claims Tribunal has gone wrong in not holding the insurance company liable for the full amount of compensation claimed by claimant and it has confined the liability to the extent of Rs.50,000/- only. Aggrieved against this order the present appeal was filed by the insurance company. It is alleged that on 20th November, 1987 Dambarudhar Kalita was driving his autorickshaw when he was hit by Omni bus bearing registration No.NLV-12. He sustained serious injuries and was removed to the hospital where he succumbed to his injuries. Therefore, the claimants i.e. mother and brother of the deceased Kalita filed a claim petition before the MACT, Gauhati as legal heirs of the deceased, claiming a sum of Rs.1,80,000/-. The objection of the appellant - insurance company was that their liability is to the extent of Rs.50,000/- only. Aggrieved against the order dated 25th June, 1993 an appeal was preferred by the claimants before the High Court and the High Court held that it is wrong to say that the insurance companys liability is to the extent of Rs.50,000/- only but insurance company is liable for the entire amount. Accordingly, the entire liability was fastened on the insurance company. Aggrieved against the order passed by the learned Single Judge dated 28th March, 2000 the present appeal was filed. It is alleged that the vehicle was owned by one Ramchandran. A notice was issued by this Court to Ramchandran who alleged to be the owner of the vehicle but he was not represented despite service. Therefore, again a notice was issued to Ramchandran. In pursuance of that notice the learned counsel for Ramchandran appeared and filed his counter affidavit. He pointed out in his counter affidavit that he was never granted any permit in North East States of the vehicle which is said to be met with an accident. He also submits that he was never served by the claims tribunal nor by the High Court but somehow, somebody else was representing on his behalf by filing power of attorney. He has produced the specimen signatures on the income tax clearance certificate and on two bank accounts. He has also produced the copy of the power filed before the claims tribunal wherein it is said to have been owned by Ramchandran but his signatures on the power of attorney and that of signatures which appears on the income tax return and on the bank account does not tally. Therefore, he submitted that he was never served with notice by the Tribunal or High Court and somebody else is alleged to have been appearing on behalf of Respondent No.3 herein. We have gone through the papers and we find that there is some doubt about the signatures of Respondent No.3 on the so called power of attorney and also on the written statement. The original record was brought before this Court and the certified copies of that record has been filed by the respondent which shows that the signatures of Ramchandran appears to have been forged one as they are not similar to the signatures of Ramchandran on the basis of the documents produced before us. Since it is a very serious matter that somebody else is appearing by proxy on behalf of Ramchandran and matter has been disposed of by the Court on the so called representation by Respondent No.3 whereas Respondent No.3 submits that he never appeared before the Courts below nor appointed any power of attorney. Therefore, it is a very serious matter which has to be investigated as to who is the proxy on behalf of Respondent No.3. However, looking to the facts and circumstances we think it proper that the investigation should be done to find out whether Respondent No.3 was the same person and whether he was being duly represented before the Lower Court or not. Prima facie on the basis of the record which is made available before us, it appears that Respondent No.3 was never served either before the claims tribunal or before the High Court. Consequently, we set aside the order and remit this case back to the Claims Tribunal to investigate into the matter and find out that whether Respondent No.3 was really served or not. In case the Tribunal comes to the conclusion that Ramchandran was rightly being represented then the order passed by the Claims Tribunal need not be interfered. However, the question of law which has been raised by the appellant shall remain open and should be decided in accordance with law.
### Response:
1
### Explanation:
We have gone through the papers and we find that there is some doubt about the signatures of Respondent No.3 on the so called power of attorney and also on the written statement. The original record was brought before this Court and the certified copies of that record has been filed by the respondent which shows that the signatures of Ramchandran appears to have been forged one as they are not similar to the signatures of Ramchandran on the basis of the documents produced beforeit is a very serious matter that somebody else is appearing by proxy on behalf of Ramchandran and matter has been disposed of by the Court on the so called representation by Respondent No.3 whereas Respondent No.3 submits that he never appeared before the Courts below nor appointed any power of attorney. Therefore, it is a very serious matter which has to be investigated as to who is the proxy on behalf of Respondent No.3. However, looking to the facts and circumstances we think it proper that the investigation should be done to find out whether Respondent No.3 was the same person and whether he was being duly represented before the Lower Court or not. Prima facie on the basis of the record which is made available before us, it appears that Respondent No.3 was never served either before the claims tribunal or before the High Court.
|
DR. DHRUVARAM MURLIDHAR SONAR Vs. THE STATE OF MAHARASHTRA AND OTHERS | waited for him for a long time, and when he finally arrived, shewent with him to a place called Kama Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused. 19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eightyears is rape, especially in the face of the complainants own allegation that they lived together as man and wife. It was held as under:- In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as rape especially in the face of the complainants own allegation that they lived together as man and wife. 20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. 21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a months time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained. 22. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C. | 1[ds]7. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record.8. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions abuse of process of law or to secure the ends of justice do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.12. Recently, in Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369 , this Court has observed as under:Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed tobe converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.13. In the instant case, FIR was registered against the appellant and the co-accused under Sections 376(2)(b), 420 read with Section 34 of the IPC and under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him.16. In Uday v. State of Karnataka (2003) 4 SCC 46 , this Court was considering a case where the prosecutrix, aged about 19 years, hadgiven consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:-21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studyingin a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eightyears is rape, especially in the face of the complainants own allegation that they lived together as man and wife. It was held as under:-In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant.It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as rape especially in the face of the complainants own allegation that they lived together as man and wife.20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a months time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.22. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C. | 1 | 5,008 | 1,932 | ### 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:
waited for him for a long time, and when he finally arrived, shewent with him to a place called Kama Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused. 19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eightyears is rape, especially in the face of the complainants own allegation that they lived together as man and wife. It was held as under:- In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as rape especially in the face of the complainants own allegation that they lived together as man and wife. 20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. 21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a months time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained. 22. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C.
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of the offence, absence of consent being one of them.23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studyingin a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eightyears is rape, especially in the face of the complainants own allegation that they lived together as man and wife. It was held as under:-In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant.It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as rape especially in the face of the complainants own allegation that they lived together as man and wife.20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a months time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each others company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.22. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C.
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B.R. Gupta And Another Vs. Rohit Jain | 1. Heard learned counsel for the parties. 2. This Transfer Petition under Section 406 Cr.P.C. is for transfer of the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhantinda, Punjab, under Sections 420/120-B IPC to the Court of the Metropolitan Magistrate, New Delhi. 3. It is stated in the petition that the petitioners company is carrying on the business of manufacture and sale of pharmaceutical products, having its registered office at Delhi. It is further alleged that the petitioners company sold some of its products to the respondent in connection with which the respondent issued a cheque dated 5.12.2002 in favour of the petitioner. That cheque was presented by the petitioner to its bank being Punjab National Bank, Connaught Place, New Delhi, but the same was dishonoured. Hence, a criminal complaint under Section 138 of the Negotiable Instruments Act was filed before the Chief Metropolitan Magistrate, New Delhi, which is pending before the Court of the Metropolitan Magistrate, Delhi. 4. It is alleged that subsequently the respondent has filed a private complaint dated 18.8.2004 under Sections 420/465/467/471/468 & 120-B IPC before the Court of Chief Judicial Magistrate, Bhatinda, Punjab against the Managing Director and General Manager (Marketing) of the petitioners company, and on that complaint the Bhatinda Court summoned the Managing Director and General Manager (Marketing) of the petitioners company vide its order dated 18.5.2006. 5. In the facts and circumstances of the case, we are of the opinion that the aforesaid Transfer Petition and the Criminal Case, which is pending before the Court of the Metropolitan Magistrate, Delhi should be heard together at one place which should be the Court at Delhi. Accordingly, the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhatinda, Punjab under Section 420/120B IPC dated 18.8.2004 is transferred to the Court of the Metropolitan Magistrate, New Delhi for its disposal by itself or assigning the case to any other competent Court for its disposal, as it may deem fit. | 1[ds]5. In the facts and circumstances of the case, we are of the opinion that the aforesaid Transfer Petition and the Criminal Case, which is pending before the Court of the Metropolitan Magistrate, Delhi should be heard together at one place which should be the Court at Delhi. Accordingly, the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhatinda, Punjab under SectionB IPCdated 18.8.2004 is transferred to the Court of the Metropolitan Magistrate, New Delhi for its disposal by itself or assigning the case to any other competent Court for its disposal, as it may deem fit. | 1 | 400 | 129 | ### 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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1. Heard learned counsel for the parties. 2. This Transfer Petition under Section 406 Cr.P.C. is for transfer of the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhantinda, Punjab, under Sections 420/120-B IPC to the Court of the Metropolitan Magistrate, New Delhi. 3. It is stated in the petition that the petitioners company is carrying on the business of manufacture and sale of pharmaceutical products, having its registered office at Delhi. It is further alleged that the petitioners company sold some of its products to the respondent in connection with which the respondent issued a cheque dated 5.12.2002 in favour of the petitioner. That cheque was presented by the petitioner to its bank being Punjab National Bank, Connaught Place, New Delhi, but the same was dishonoured. Hence, a criminal complaint under Section 138 of the Negotiable Instruments Act was filed before the Chief Metropolitan Magistrate, New Delhi, which is pending before the Court of the Metropolitan Magistrate, Delhi. 4. It is alleged that subsequently the respondent has filed a private complaint dated 18.8.2004 under Sections 420/465/467/471/468 & 120-B IPC before the Court of Chief Judicial Magistrate, Bhatinda, Punjab against the Managing Director and General Manager (Marketing) of the petitioners company, and on that complaint the Bhatinda Court summoned the Managing Director and General Manager (Marketing) of the petitioners company vide its order dated 18.5.2006. 5. In the facts and circumstances of the case, we are of the opinion that the aforesaid Transfer Petition and the Criminal Case, which is pending before the Court of the Metropolitan Magistrate, Delhi should be heard together at one place which should be the Court at Delhi. Accordingly, the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhatinda, Punjab under Section 420/120B IPC dated 18.8.2004 is transferred to the Court of the Metropolitan Magistrate, New Delhi for its disposal by itself or assigning the case to any other competent Court for its disposal, as it may deem fit.
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5. In the facts and circumstances of the case, we are of the opinion that the aforesaid Transfer Petition and the Criminal Case, which is pending before the Court of the Metropolitan Magistrate, Delhi should be heard together at one place which should be the Court at Delhi. Accordingly, the case titled Rohit Jain vs. B.R. Gupta & another pending in the Court of Shri Jagdeep K. Virat, Judicial Magistrate, Ist Class, Bhatinda, Punjab under SectionB IPCdated 18.8.2004 is transferred to the Court of the Metropolitan Magistrate, New Delhi for its disposal by itself or assigning the case to any other competent Court for its disposal, as it may deem fit.
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State of U.P Vs. Mohammad Din and Ors | respondents and the second appeal by the original defendants failed on the same ground on which the appeal in the cognate case failed. Hence this appeal by special leave. 4. Respondents in each appeal sought a declaration that they were citizens of India. The appellants contended that the respondents had acquired the citizenship of Pakistan and accordingly had ceased to be the citizens of India and therefore are not entitled to the declaration sought by them. On these rival contentions the specific issue that arose was whether, when or how the respondents had acquired the citizenship of another country ? 5. Section 9 of The Citizenship Act, 1955 which came into force on December 30, 1955 reads as under : 9. Termination of citizenship for the (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between January 26, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India :Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India maybe engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf. Section 9(1) provides for situations wherein citizenship of an Indian citizen stands terminated, one such situation being upon acquisition of the citizenship of another country. If an Indian citizen acquired citizenship of another country that by itself without anything more would result in the termination of his citizenship of India. Sub-section (2) provides for the forum having jurisdiction to determine the contention as to whether, when and how a person had acquired citizenship of another country and thereby the consequence of termination of Indian citizenship ensued. If such a contention were to arise in any proceeding, it shall be dealt with by the prescribed authority. Rule 30 of the Citizenship Rules framed under the Act prescribes the Central Government to be the exclusive authority competent to determine whether citizenship of another country is acquired and thereby the person claiming to be Indian citizen has ceased to be one. 6. The question is whether once exclusive jurisdiction is conferred on the Central Government to determine the issue that may arise under sub-section (2) of Section 9, the civil court will have jurisdiction to decide the same. In Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724), which the learned Single Judge followed while deciding the appeal against which the present appeal is filed, the Allahabad High Court had taken the view that if the suit is instituted prior to the enactment and enforcement of the Citizenship Act, 1955 the civil court had jurisdiction to decide the contention whether citizenship of an Indian citizen stood terminated on account of his acquisition of citizenship of another country, and the jurisdiction of the civil court in view of the provision contained in Section 9(2) would not be ousted and the civil court will continue to have jurisdiction to determine the issue. The learned Single Judge negatived the contention that the civil court had no jurisdiction to decide the issue following the decision in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724). 7. In Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ), this Court specifically overruled the decision in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724). This Court specifically held that from the amplitude of the language employed in Section 9, the legislative intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution, that is after January 26, 1950 and before the commencement of the Act i.e. December 30, 1955 have to be dealt with and decided in accordance with the provisions contained in Section 9(2) of the Act. This Court specifically held that civil court will have no jurisdiction to decide the issue arising in a suit instituted before the commencement of the Act as the Central Government alone has been constituted the exclusive forum for the same. This legal position is unquestioned and unquestionable. Therefore the decision of the High Court is wholly unsustainable, and both the appeals will have to be allowed. 8. Mr Mahajan appearing in one of the two appeals urged that the Court should retain the suits and direct the Central Government to decide the question : whether the respondents had acquired that citizenship of another country i.e. Pakistan and thereby their Indian citizenship stood terminated and till then they should not be deported. We would have been happy to accede to this contention but let it be made very clear that the law in this behalf has been laid down way back in 1969. The decision in Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ) which specifically overruled the decision of the Allahabad High Court in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724) was specifically brought to the notice of the learned Single Judge hearing the second appeal and yet for reasons wholly un-understandable and entirely unsustainable, the learned Judge declined to apply the law which was binding on him. At any rate, the appellants had knowledge of the legal position from 1969 and it was for them to have taken recourse to appropriate proceeding by moving the Central Government to get the relief. The suit is pending for 30 years and it is not possible therefore, to accede to the request of Mr Mahajan. | 1[ds]This Court specifically held that from the amplitude of the language employed in Section 9, the legislative intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution, that is after January 26, 1950 and before the commencement of the Act i.e. December 30, 1955 have to be dealt with and decided in accordance with the provisions contained in Section 9(2) of the Act. This Court specifically held that civil court will have no jurisdiction to decide the issue arising in a suit instituted before the commencement of the Act as the Central Government alone has been constituted the exclusive forum for the same. This legal position is unquestioned and unquestionable. Therefore the decision of the High Court is wholly unsustainable, and both the appeals will have to be allowed8. Mr Mahajan appearing in one of the two appeals urged that the Court should retain the suits and direct the Central Government to decide the question : whether the respondents had acquired that citizenship of another country i.e. Pakistan and thereby their Indian citizenship stood terminated and till then they should not be deported. We would have been happy to accede to this contention but let it be made very clear that the law in this behalf has been laid down way back in 1969. The decision in Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ) which specifically overruled the decision of the Allahabad High Court in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724) was specifically brought to the notice of the learned Single Judge hearing the second appeal and yet for reasons whollye and entirely unsustainable, the learned Judge declined to apply the law which was binding on him. At any rate, the appellants had knowledge of the legal position from 1969 and it was for them to have taken recourse to appropriate proceeding by moving the Central Government to get the relief. The suit is pending for 30 years and it is not possible therefore, to accede to the request of Mr Mahajan. | 1 | 1,787 | 402 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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respondents and the second appeal by the original defendants failed on the same ground on which the appeal in the cognate case failed. Hence this appeal by special leave. 4. Respondents in each appeal sought a declaration that they were citizens of India. The appellants contended that the respondents had acquired the citizenship of Pakistan and accordingly had ceased to be the citizens of India and therefore are not entitled to the declaration sought by them. On these rival contentions the specific issue that arose was whether, when or how the respondents had acquired the citizenship of another country ? 5. Section 9 of The Citizenship Act, 1955 which came into force on December 30, 1955 reads as under : 9. Termination of citizenship for the (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between January 26, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India :Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India maybe engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf. Section 9(1) provides for situations wherein citizenship of an Indian citizen stands terminated, one such situation being upon acquisition of the citizenship of another country. If an Indian citizen acquired citizenship of another country that by itself without anything more would result in the termination of his citizenship of India. Sub-section (2) provides for the forum having jurisdiction to determine the contention as to whether, when and how a person had acquired citizenship of another country and thereby the consequence of termination of Indian citizenship ensued. If such a contention were to arise in any proceeding, it shall be dealt with by the prescribed authority. Rule 30 of the Citizenship Rules framed under the Act prescribes the Central Government to be the exclusive authority competent to determine whether citizenship of another country is acquired and thereby the person claiming to be Indian citizen has ceased to be one. 6. The question is whether once exclusive jurisdiction is conferred on the Central Government to determine the issue that may arise under sub-section (2) of Section 9, the civil court will have jurisdiction to decide the same. In Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724), which the learned Single Judge followed while deciding the appeal against which the present appeal is filed, the Allahabad High Court had taken the view that if the suit is instituted prior to the enactment and enforcement of the Citizenship Act, 1955 the civil court had jurisdiction to decide the contention whether citizenship of an Indian citizen stood terminated on account of his acquisition of citizenship of another country, and the jurisdiction of the civil court in view of the provision contained in Section 9(2) would not be ousted and the civil court will continue to have jurisdiction to determine the issue. The learned Single Judge negatived the contention that the civil court had no jurisdiction to decide the issue following the decision in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724). 7. In Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ), this Court specifically overruled the decision in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724). This Court specifically held that from the amplitude of the language employed in Section 9, the legislative intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution, that is after January 26, 1950 and before the commencement of the Act i.e. December 30, 1955 have to be dealt with and decided in accordance with the provisions contained in Section 9(2) of the Act. This Court specifically held that civil court will have no jurisdiction to decide the issue arising in a suit instituted before the commencement of the Act as the Central Government alone has been constituted the exclusive forum for the same. This legal position is unquestioned and unquestionable. Therefore the decision of the High Court is wholly unsustainable, and both the appeals will have to be allowed. 8. Mr Mahajan appearing in one of the two appeals urged that the Court should retain the suits and direct the Central Government to decide the question : whether the respondents had acquired that citizenship of another country i.e. Pakistan and thereby their Indian citizenship stood terminated and till then they should not be deported. We would have been happy to accede to this contention but let it be made very clear that the law in this behalf has been laid down way back in 1969. The decision in Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ) which specifically overruled the decision of the Allahabad High Court in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724) was specifically brought to the notice of the learned Single Judge hearing the second appeal and yet for reasons wholly un-understandable and entirely unsustainable, the learned Judge declined to apply the law which was binding on him. At any rate, the appellants had knowledge of the legal position from 1969 and it was for them to have taken recourse to appropriate proceeding by moving the Central Government to get the relief. The suit is pending for 30 years and it is not possible therefore, to accede to the request of Mr Mahajan.
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### Explanation:
This Court specifically held that from the amplitude of the language employed in Section 9, the legislative intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution, that is after January 26, 1950 and before the commencement of the Act i.e. December 30, 1955 have to be dealt with and decided in accordance with the provisions contained in Section 9(2) of the Act. This Court specifically held that civil court will have no jurisdiction to decide the issue arising in a suit instituted before the commencement of the Act as the Central Government alone has been constituted the exclusive forum for the same. This legal position is unquestioned and unquestionable. Therefore the decision of the High Court is wholly unsustainable, and both the appeals will have to be allowed8. Mr Mahajan appearing in one of the two appeals urged that the Court should retain the suits and direct the Central Government to decide the question : whether the respondents had acquired that citizenship of another country i.e. Pakistan and thereby their Indian citizenship stood terminated and till then they should not be deported. We would have been happy to accede to this contention but let it be made very clear that the law in this behalf has been laid down way back in 1969. The decision in Shah Mohammad case ((1969) 3 SCR 1006 : (1969) 1 SCC 771 ) which specifically overruled the decision of the Allahabad High Court in Abida Khatoon case (AIR 1963 All 260 : (1963) 1 Cri LJ 724) was specifically brought to the notice of the learned Single Judge hearing the second appeal and yet for reasons whollye and entirely unsustainable, the learned Judge declined to apply the law which was binding on him. At any rate, the appellants had knowledge of the legal position from 1969 and it was for them to have taken recourse to appropriate proceeding by moving the Central Government to get the relief. The suit is pending for 30 years and it is not possible therefore, to accede to the request of Mr Mahajan.
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Lopchand Naruji Jat Vs. State Of Gujarat | were charge-sheeted for the offence punishable under Sections 9-B(i) (b) of the Act and Section 5 of the Terrorists & Disruptive Activities (Prevention) Act, 1985 (in short the TADA). By judgment and order dated 12.10.1998 of the Trial Court, the accused were acquitted of the offence punishable under Section 5 of the TADA. However, they were convicted for the offence punishable under Section 9-B(i) (b) of the Act and were sentenced as aforesaid.3. In the appeal before the High Court stand of the appellants was that without prior sanction of the Central Government for prosecution the proceedings were illegal. It was also submitted that article recovered from the appellants cannot be said to be explosives and, therefore, also the appellants could not have been convicted. As there was no independent evidence and only the evidence of the investigation officer was relied upon, the conviction should not have been made. Residually it was submitted that the appellants had faced trial for about 10 years and should not have been convicted with punishment of custodial sentence as Section 9-B(i) (b) itself provides that fine only can be imposed. Respondent-States stand was that no sanction was necessary under the Act. The report of the Controller of Explosive, Baroda, clearly indicated that the substance recovered from the appellants was explosive of Class 2 as prescribed in Schedule I to the Explosives Rules 1983 (in short the Rules) as well as Explosive of Class 6 as defined in the said Schedule. A licence is obligatory for possession, transportation and use of the explosive. Since the substance recovered was an explosive as defined in Section 4(d) of the Act and no licence was detained, the conviction as well-merited. Learned Single Judge, held that no sanction was necessary under the Act for prosecution. The article recovered were explosives and keeping in view the factual background the sentence as imposed was in order.4. In support of the appeal, learned counsel for the appellants reiterated the points urges before the High Court. Learned counsel for the respondent-State in response supported the judgment of the courts below. 5. It is to be noted that the plea relating to sanction is based on confusion between two statutes i.e. The Act and the Explosive substances Act 1908 (in short the Explosive Substances Act). Prior sanction for prosecuting any person is provided under the Explosive Substances Act and there is no corresponding provision in the Act. Therefore, the Trial Court and the High Court were justified in rejecting the plea. Coming to the question whether the seized articles were explosives, report of the Controller of Explosive, which was produced as Exhibit-73 clearly discloses that the substances recovered were explosives of Class 2 and Class 6 of Schedule I. That being so, the plea that the articles were not explosives cannot be sustained. 6. The two Classes are as follows: "Class 2- Nitrate Mixture Class:"Nitrate-mixture" means any preparation, other than gunpowder, which is formed by the mechanical mixture of a nitrate with any form of carbon with any carbonaceous substance not possessed of explosive substance not possessed of explosive properties, whether sulphur be or be not added to such preparation, and whether such preparation be not mechanically mixed with any other non-explosive substance, and includes any explosive containing a perchlorate and not being a chlorate mixture, fulminate or nitro-compound as defined in this Schedule.Class 6- Ammunition Class:(1) "Ammunition" means an explosive of any enclosed in any case or contrivance, or is otherwise adapted or prepared so as to form:(a) a cartridge or charge for small arms, cannon or any other weapon, or (b) a safety or other fuse for blasting or for shells, or (c) a tube for firing explosives, or (d) a percussion cap, detonator, fog signal, shell, torpedo, war rocket or any other contrivance other than a firework.(2) The ammunition class has three divisions, namely Division 1, Division 2 and Division 3.(3) Division 1 comprises exclusively of (1) Safety cartridges. (ii) Safety fuses for blasting, (iii) Railway for signal, and (iv) Percussion caps.(4) Division 2, comprises any ammunition which does not contain its own means of ignition and is not included in Division 1, such as cartridges for small arms other than safety cartridges and chargers for common shells and torpedoes containing any explosives, tubes for firing explosives, and war rocket, which do not contain their own means of ignition.(5) Division 3, comprises any ammunition which contains its own means of ignition and is not included in Division1, such as detonators, fuses for blasting which are not safety fuses, tubes for firing explosives, containing their own means of ignition.Note - The expression "ammunition containing its own means of ignition" means ammunition having an arrangement, whether attached to or forming part of the ammunition which is adapted to explode or fire the ammunition by friction or percussion. "Percussion cap" does not include a detonator." 7. As per established prosecution version 180 nos. of ammunition dynamites were found in possession of the accused. Courts below have on evidence tendered found that Ammonium tubes with electrical red wire were recovered. These articles are undisputedly covered by class-6 as quoted above.8. The substances recovered from the appellants clearly come within the definition of "explosive" as per Section 4(d) of the Act. When the investigating officer was found to be trustful and in spite of incisive cross-examination, nothing material has been that brought to discredit his evidence, the Trial Court was justified in recording conviction on his evidence alone.9. Coming to the plea about the sentence it would be relevant to note that 180 detonators were seized. The value thereof has been fixed by the prosecution as Rs.900/-. The quantity seized clearly disproves the plea that the seized articles were intended to be used for digging wells. The detonators were found to be of a company at Rourkela in Orissa, and were seized far away at Surat. The fact that the accused persons tried to run away when police wanted to apprehend them is a significant factor. | 0[ds]5. It is to be noted that the plea relating to sanction is based on confusion between two statutes i.e. The Act and the Explosive substances Act 1908 (in short the Explosive Substances Act). Prior sanction for prosecuting any person is provided under the Explosive Substances Act and there is no corresponding provision in the Act. Therefore, the Trial Court and the High Court were justified in rejecting the plea.As per established prosecution version 180 nos. of ammunition dynamites were found in possession of the accused. Courts below have on evidence tendered found that Ammonium tubes with electrical red wire were recovered. These articles are undisputedly covered by class-6 as quoted above.8. The substances recovered from the appellants clearly come within the definition of "explosive" as per Section 4(d) of the Act. When the investigating officer was found to be trustful and in spite of incisive cross-examination, nothing material has been that brought to discredit his evidence, the Trial Court was justified in recording conviction on his evidence alone.9. Coming to the plea about the sentence it would be relevant to note that 180 detonators were seized. The value thereof has been fixed by the prosecution as Rs.900/-. The quantity seized clearly disproves the plea that the seized articles were intended to be used for digging wells. The detonators were found to be of a company at Rourkela in Orissa, and were seized far away at Surat. The fact that the accused persons tried to run away when police wanted to apprehend them is a significant factor. | 0 | 1,306 | 287 | ### 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:
were charge-sheeted for the offence punishable under Sections 9-B(i) (b) of the Act and Section 5 of the Terrorists & Disruptive Activities (Prevention) Act, 1985 (in short the TADA). By judgment and order dated 12.10.1998 of the Trial Court, the accused were acquitted of the offence punishable under Section 5 of the TADA. However, they were convicted for the offence punishable under Section 9-B(i) (b) of the Act and were sentenced as aforesaid.3. In the appeal before the High Court stand of the appellants was that without prior sanction of the Central Government for prosecution the proceedings were illegal. It was also submitted that article recovered from the appellants cannot be said to be explosives and, therefore, also the appellants could not have been convicted. As there was no independent evidence and only the evidence of the investigation officer was relied upon, the conviction should not have been made. Residually it was submitted that the appellants had faced trial for about 10 years and should not have been convicted with punishment of custodial sentence as Section 9-B(i) (b) itself provides that fine only can be imposed. Respondent-States stand was that no sanction was necessary under the Act. The report of the Controller of Explosive, Baroda, clearly indicated that the substance recovered from the appellants was explosive of Class 2 as prescribed in Schedule I to the Explosives Rules 1983 (in short the Rules) as well as Explosive of Class 6 as defined in the said Schedule. A licence is obligatory for possession, transportation and use of the explosive. Since the substance recovered was an explosive as defined in Section 4(d) of the Act and no licence was detained, the conviction as well-merited. Learned Single Judge, held that no sanction was necessary under the Act for prosecution. The article recovered were explosives and keeping in view the factual background the sentence as imposed was in order.4. In support of the appeal, learned counsel for the appellants reiterated the points urges before the High Court. Learned counsel for the respondent-State in response supported the judgment of the courts below. 5. It is to be noted that the plea relating to sanction is based on confusion between two statutes i.e. The Act and the Explosive substances Act 1908 (in short the Explosive Substances Act). Prior sanction for prosecuting any person is provided under the Explosive Substances Act and there is no corresponding provision in the Act. Therefore, the Trial Court and the High Court were justified in rejecting the plea. Coming to the question whether the seized articles were explosives, report of the Controller of Explosive, which was produced as Exhibit-73 clearly discloses that the substances recovered were explosives of Class 2 and Class 6 of Schedule I. That being so, the plea that the articles were not explosives cannot be sustained. 6. The two Classes are as follows: "Class 2- Nitrate Mixture Class:"Nitrate-mixture" means any preparation, other than gunpowder, which is formed by the mechanical mixture of a nitrate with any form of carbon with any carbonaceous substance not possessed of explosive substance not possessed of explosive properties, whether sulphur be or be not added to such preparation, and whether such preparation be not mechanically mixed with any other non-explosive substance, and includes any explosive containing a perchlorate and not being a chlorate mixture, fulminate or nitro-compound as defined in this Schedule.Class 6- Ammunition Class:(1) "Ammunition" means an explosive of any enclosed in any case or contrivance, or is otherwise adapted or prepared so as to form:(a) a cartridge or charge for small arms, cannon or any other weapon, or (b) a safety or other fuse for blasting or for shells, or (c) a tube for firing explosives, or (d) a percussion cap, detonator, fog signal, shell, torpedo, war rocket or any other contrivance other than a firework.(2) The ammunition class has three divisions, namely Division 1, Division 2 and Division 3.(3) Division 1 comprises exclusively of (1) Safety cartridges. (ii) Safety fuses for blasting, (iii) Railway for signal, and (iv) Percussion caps.(4) Division 2, comprises any ammunition which does not contain its own means of ignition and is not included in Division 1, such as cartridges for small arms other than safety cartridges and chargers for common shells and torpedoes containing any explosives, tubes for firing explosives, and war rocket, which do not contain their own means of ignition.(5) Division 3, comprises any ammunition which contains its own means of ignition and is not included in Division1, such as detonators, fuses for blasting which are not safety fuses, tubes for firing explosives, containing their own means of ignition.Note - The expression "ammunition containing its own means of ignition" means ammunition having an arrangement, whether attached to or forming part of the ammunition which is adapted to explode or fire the ammunition by friction or percussion. "Percussion cap" does not include a detonator." 7. As per established prosecution version 180 nos. of ammunition dynamites were found in possession of the accused. Courts below have on evidence tendered found that Ammonium tubes with electrical red wire were recovered. These articles are undisputedly covered by class-6 as quoted above.8. The substances recovered from the appellants clearly come within the definition of "explosive" as per Section 4(d) of the Act. When the investigating officer was found to be trustful and in spite of incisive cross-examination, nothing material has been that brought to discredit his evidence, the Trial Court was justified in recording conviction on his evidence alone.9. Coming to the plea about the sentence it would be relevant to note that 180 detonators were seized. The value thereof has been fixed by the prosecution as Rs.900/-. The quantity seized clearly disproves the plea that the seized articles were intended to be used for digging wells. The detonators were found to be of a company at Rourkela in Orissa, and were seized far away at Surat. The fact that the accused persons tried to run away when police wanted to apprehend them is a significant factor.
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5. It is to be noted that the plea relating to sanction is based on confusion between two statutes i.e. The Act and the Explosive substances Act 1908 (in short the Explosive Substances Act). Prior sanction for prosecuting any person is provided under the Explosive Substances Act and there is no corresponding provision in the Act. Therefore, the Trial Court and the High Court were justified in rejecting the plea.As per established prosecution version 180 nos. of ammunition dynamites were found in possession of the accused. Courts below have on evidence tendered found that Ammonium tubes with electrical red wire were recovered. These articles are undisputedly covered by class-6 as quoted above.8. The substances recovered from the appellants clearly come within the definition of "explosive" as per Section 4(d) of the Act. When the investigating officer was found to be trustful and in spite of incisive cross-examination, nothing material has been that brought to discredit his evidence, the Trial Court was justified in recording conviction on his evidence alone.9. Coming to the plea about the sentence it would be relevant to note that 180 detonators were seized. The value thereof has been fixed by the prosecution as Rs.900/-. The quantity seized clearly disproves the plea that the seized articles were intended to be used for digging wells. The detonators were found to be of a company at Rourkela in Orissa, and were seized far away at Surat. The fact that the accused persons tried to run away when police wanted to apprehend them is a significant factor.
|
Brahampal @ Sammay and Anr Vs. National Insurance Company | thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis supplied) 20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 wherein the Court held that: 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. (emphasis supplied) 22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under: 36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period. (emphasis supplied) Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above. 23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief. 24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law. | 1[ds]8. At the outset, we must note that, Chapter XII of the Act is a beneficial legislation intended at protecting the rights of victims affected in road accidents. Moreover, the Act is a self-contained code in itself which provides procedures for filing claims, for passing of award and for preferring an appeal. Even, the limitations for preferring the remedies are contained in the code itself.9. The interpretation of a beneficial legislation must be remedial and must be in furtherance with the purpose which the statute seeks to serve. The aforesaid view has been reiterated by this Court on multiple occasions wherein this Court has highlighted the importance acknowledging legislative intention while interpreting the provisions of the statute. This Court in the case of Bombay Anand Bhavan Restaurant v. Deputy Director, Employees State Insurance Corporation.,(2009) 9 SCC 61 while interpreting the provisions of the Employees State Insurance Act held that it being a beneficial legislation should receive a liberal construction so as to promote its objectives. This Court held therein:20. The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects.16. This Court has firstly held that purpose of conferment of such power must be examined for the determination of the scope of such discretion conferred upon the court. [refer to Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad AIR 1963 SC 120 ; Shri Prakash Chand Agarwal v. Hindustan Steel Ltd.,(1970) 2 SCC 806 ]. Our analysis of the purpose of the Act suggests that such discretionary power is conferred upon the Courts, to enforce the rights of the victims and their dependents. The legislature intended that Courts must have such power so as to ensure that substantive justice is not trumped by technicalities.17. Secondly, it has been held that if the specific conditions wherein the power could be exercised is also provided in the statute, then the Court must exercise the aforesaid discretion in the manner as specified by the statute itself. In the second proviso to Section 173 it is stated that Court has the power to condone delay only if it is satisfied that there existed sufficient cause.18. At this juncture, we need to interpret the term sufficient cause as a condition precedent for the granting of the discretionary relief of allowing the appeal beyond the statutory limit of ninety days. Although this Court has held that provisions of the Limitation Act, 1963 does not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting sufficient cause under the Limitation Act Courts have taken a liberal interpretation. This Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs., (2008) 8 SCC 321 , observed that:13....The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words sufficient cause in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai,(2012) 5 SCC 157 wherein the Court held that:23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under:36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law. | 1 | 3,237 | 1,763 | ### 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:
thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis supplied) 20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 wherein the Court held that: 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. (emphasis supplied) 22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under: 36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period. (emphasis supplied) Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above. 23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief. 24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law.
### Response:
1
### Explanation:
case, and the type of case. The words sufficient cause in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.20. The Court in the above-mentioned cases, highlighted upon the importance introducing the concept of reasonableness while giving the Clause sufficient cause a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the partys inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.21. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai,(2012) 5 SCC 157 wherein the Court held that:23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power Under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.22. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015. In P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 , wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed Under Section 34 of the Arbitration Act and not thereafter. The Court while coming to the aforesaid conclusion, reasoned as under:36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470 ] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time-limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Acts objective of speedy resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period.Coming back to the Motor Vehicles Act, the legislative intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.23. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of sufficient cause. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.24. Taking into consideration the facts and circumstances of the present case, we are of the opinion that the delay of 45 days has been properly explained by the Appellants, which was on account of illness of the wife of Appellant No. 1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the Appellants for filing the appeal after the expiry of ninety days. Therefore, we are of the opinion that the strict approach taken in the impugned order is hyper-technical and cannot be sustained in the eyes of law.
|
Shripad Kulkarni & Others Vs. State of Goa, Through The Police Inspector & Another | phraseology may do so under the justified but erroneous impression. Such expression would not itself make the offence cognizable.13. Counsel on behalf of the respondent no. 2 gave an illustration of the offence of rape. He argued that is the fact by a mere use of such expression is stated, a cognizable offence under Section 376 would be disclosed and an FIR would have to be registered. Similarly he argued that the expression that the complainant was wrongfully confined would will seal the fate upon the aspect of cognizability. The illustration is misconceived, the title of the offence having been stated by the complainant notwithstanding.14. It is seen that the despite the words wrongly confined, 342 definition of the concept of wrongful confinement under Section 340 is not met because though the complainant stated that she was wrongfully confined her complaint, it does not show any person who restrained her in the room that she was. All that it shows is her allegation of wrongful confinement in the presence of the petitioners. Upon such a solitary sentence in her otherwise detailed complaint setting out a case of coercion of signing a resignation letter, no cognizable offence can be stated to have been disclosed.15. Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.17. It may be also be mentioned that the statements of two security guards is same but only with regard to the entrance and exist at the entrance gate of the company. The statement of one other witness Desh Bhandhari shows the state of mind of the complainant after the alleged incident. He is the colleague who gave her lift, from the company office to Margao. He has stated that three petitioners and seven other managerial persons who were present along with him in the conference hall when the alleged incident transpired. He has detailed the proceedings that transpired in the hall including the tendering of the resignation letter, announcement of the resignation and thanking the departmental heads by the complainant. Thereafter he gave a complainant a lift in the car until she met her husband on the way.18. The spot panchanama dated 6.1.2013 shows the position of the conference hall covered with glass partition. Of course, it is not shown whether it was transparent, translucent or opaque glass.19. The chargesheet containing the above case also does not take the case of the complainant any further. In view of the fact that her initial complaint itself does not disclose any cognizable offence her latter statement, if any, would be immaterial to consider.20. It is contended on her behalf that a mobile phone upon which she contacted her husband and hard disk of the computer on which the resignation letter was printed would have shown her state of mind and the factum of the preparation of the resignation letter respectively. If she was wrongfully restrained and if the petitioner committed any offences those aspects would have been material to consider. If the offence of wrongful restraint is not disclosed and only a case of coercion in signing the resignation letter is disclosed, that evidence may not be required in criminal prosecution. It may certainly of use in civil action if the complainant sues. Consequently what is stated by the complainant in her further affidavit would not be material to consider while seeing whether or not the complaint and consequently the chargesheet is required to be quashed.21. The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259 in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runs thus:-(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court. | 1[ds]10. The remainder of the complaint including the last sentence hereinabove cited shows the fact of signing the resignation letter which may be without any reason or justification which shows that it was signed under duress and she was verbally threatened and that she signed because she was wrongfully confined to a room and under mental pressure. It also shows that the resignation letter was previously prepared. It shows her state of mind at the time of the incident. It shows that she was depressed, shock, humiliated and cheated and she left for home feeling suicidal. The remaining part of the complaint does not disclose any offence under the I.P.C.Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259 in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runswhere it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court. | 1 | 2,083 | 605 | ### 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:
phraseology may do so under the justified but erroneous impression. Such expression would not itself make the offence cognizable.13. Counsel on behalf of the respondent no. 2 gave an illustration of the offence of rape. He argued that is the fact by a mere use of such expression is stated, a cognizable offence under Section 376 would be disclosed and an FIR would have to be registered. Similarly he argued that the expression that the complainant was wrongfully confined would will seal the fate upon the aspect of cognizability. The illustration is misconceived, the title of the offence having been stated by the complainant notwithstanding.14. It is seen that the despite the words wrongly confined, 342 definition of the concept of wrongful confinement under Section 340 is not met because though the complainant stated that she was wrongfully confined her complaint, it does not show any person who restrained her in the room that she was. All that it shows is her allegation of wrongful confinement in the presence of the petitioners. Upon such a solitary sentence in her otherwise detailed complaint setting out a case of coercion of signing a resignation letter, no cognizable offence can be stated to have been disclosed.15. Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.17. It may be also be mentioned that the statements of two security guards is same but only with regard to the entrance and exist at the entrance gate of the company. The statement of one other witness Desh Bhandhari shows the state of mind of the complainant after the alleged incident. He is the colleague who gave her lift, from the company office to Margao. He has stated that three petitioners and seven other managerial persons who were present along with him in the conference hall when the alleged incident transpired. He has detailed the proceedings that transpired in the hall including the tendering of the resignation letter, announcement of the resignation and thanking the departmental heads by the complainant. Thereafter he gave a complainant a lift in the car until she met her husband on the way.18. The spot panchanama dated 6.1.2013 shows the position of the conference hall covered with glass partition. Of course, it is not shown whether it was transparent, translucent or opaque glass.19. The chargesheet containing the above case also does not take the case of the complainant any further. In view of the fact that her initial complaint itself does not disclose any cognizable offence her latter statement, if any, would be immaterial to consider.20. It is contended on her behalf that a mobile phone upon which she contacted her husband and hard disk of the computer on which the resignation letter was printed would have shown her state of mind and the factum of the preparation of the resignation letter respectively. If she was wrongfully restrained and if the petitioner committed any offences those aspects would have been material to consider. If the offence of wrongful restraint is not disclosed and only a case of coercion in signing the resignation letter is disclosed, that evidence may not be required in criminal prosecution. It may certainly of use in civil action if the complainant sues. Consequently what is stated by the complainant in her further affidavit would not be material to consider while seeing whether or not the complaint and consequently the chargesheet is required to be quashed.21. The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259 in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runs thus:-(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court.
### Response:
1
### Explanation:
10. The remainder of the complaint including the last sentence hereinabove cited shows the fact of signing the resignation letter which may be without any reason or justification which shows that it was signed under duress and she was verbally threatened and that she signed because she was wrongfully confined to a room and under mental pressure. It also shows that the resignation letter was previously prepared. It shows her state of mind at the time of the incident. It shows that she was depressed, shock, humiliated and cheated and she left for home feeling suicidal. The remaining part of the complaint does not disclose any offence under the I.P.C.Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259 in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runswhere it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court.
|
MAHENDRA PRATAP DUBEY Vs. MANAGING OFFICER,EVACUEE PROPERTY | said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of respondent No.4 (Md. Sattar @ Mokhan). 11. The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the competent authority or otherwise. The Assistant Custodian on analysing the factual position in its judgment observed thus:?I have gone through the file and found there is no such documents have been filed by the objector whose genuineness can be examined except the objection which has been filed on behalf of O.P. Sri Ram Abhilakh stating that this tribunal has got no jurisdiction to examine the genuineness of sale certificate that which one is correct out of these two documents. In this regard I have to mention that this has been the consistent view of the higher tribunal under the O.P. (C & P) Act No. 44 of 1954, that in a case in which the nature of each complaint is that some forged deeds have been reported to have been issued by the Assistant Castodian/Managing Officer the said officer can meet enquiries and can ask the person concerned to produced the relevant papers to examine their veracity find out if any such deed was at all issued. In this connection a copy of order of Sri Prem Narain, Settlement Commissioner (Judicial) passed on 11.10.76 in appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing Officer, Lucknow was filed as an examper, in which it has been held that the Managing Officer can certainly look into the matter on receipt of complaint and can pass appropriate order on that basis. Accordingly, the parties were directed to produce relevant papers, the applicant Smt. MaimunNissa filed the original & photo copy of receipt of earnest money, acceptance letter dt. 10.6.65 and the sale certificate dt. 7.7.65 referred to above, and supported her contention on affidavit. Sri Ram Abhilekh did not produce any document and also did not produce Sri Mohd. Satar @ Mohkan the alleged original transferred from the custodian to prove the genuineness of the transaction. On the other hand the evaded to file the documentation the plea that the same cannot be looked into by the tribunal; which as stated above can always be looked in this circumstances of the case. In the absence of any papers or evidence of Sri Ram Abilekh the matter was examined with the available records. The connected file shows that first the house was put to sale on 16.3.62 when the bid of Smt. Amina was the highest for Rs.1210/- and an amount of Rs.121/- was deposited but subsequently for non deposit the balance money the sale was cancelled and the earnest money deposited was forfeited. It further seems from the documents filed that the house was put to sale on 12.7.82 and it was knocked down in favour of MaimunNissa, who deposited Rs.170/- as earnest money and on receipt of acceptance letter dt.10.6….. she deposited the balance sale consideration money on 26.6.65 and thereafter the certificate of sale was issued in her favour on 7.7.65 by Sri B.B. Verma, Managing Officer, Varanasi. I have seen the original documents. There is nothing to discredit the said documents and the testimony of Smt. MaimumNissa. There is no record in the office or any entry in the office register to show that any Sale Certificate was issued in favour of Mohd. Sattar @ Mohkan by this department. The sale certificate issued in favour of Smt. MaimunNissa is accordingly held valid.? (emphasis supplied)12. This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7 th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani). 13. The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit. | 0[ds]10. From the acceptance letter, it is noticeable that it has been issued under the signature of one B.B. Verma, Assistant Custodian and the same person issued a certificate of sale in his capacity as Managing Officer. It must be kept in mind that the application was moved by respondent No.3 and not by the appellant or any of his statedIn that situation, the enquiry into the application ought to be limited to the fact as to whether the documents relied upon by respondent No.3 before the authority, to claim that she had acquired right, title and interest in the suit property as a consequence of issuance of certificate of sale, were genuine. Neither the appellant nor hishas challenged the validity of the said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of respondent No.4 (Md. Sattar @ Mokhan).The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the competent authority or otherwise.This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7 th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani).The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit. | 0 | 3,626 | 649 | ### 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:
said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of respondent No.4 (Md. Sattar @ Mokhan). 11. The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the competent authority or otherwise. The Assistant Custodian on analysing the factual position in its judgment observed thus:?I have gone through the file and found there is no such documents have been filed by the objector whose genuineness can be examined except the objection which has been filed on behalf of O.P. Sri Ram Abhilakh stating that this tribunal has got no jurisdiction to examine the genuineness of sale certificate that which one is correct out of these two documents. In this regard I have to mention that this has been the consistent view of the higher tribunal under the O.P. (C & P) Act No. 44 of 1954, that in a case in which the nature of each complaint is that some forged deeds have been reported to have been issued by the Assistant Castodian/Managing Officer the said officer can meet enquiries and can ask the person concerned to produced the relevant papers to examine their veracity find out if any such deed was at all issued. In this connection a copy of order of Sri Prem Narain, Settlement Commissioner (Judicial) passed on 11.10.76 in appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing Officer, Lucknow was filed as an examper, in which it has been held that the Managing Officer can certainly look into the matter on receipt of complaint and can pass appropriate order on that basis. Accordingly, the parties were directed to produce relevant papers, the applicant Smt. MaimunNissa filed the original & photo copy of receipt of earnest money, acceptance letter dt. 10.6.65 and the sale certificate dt. 7.7.65 referred to above, and supported her contention on affidavit. Sri Ram Abhilekh did not produce any document and also did not produce Sri Mohd. Satar @ Mohkan the alleged original transferred from the custodian to prove the genuineness of the transaction. On the other hand the evaded to file the documentation the plea that the same cannot be looked into by the tribunal; which as stated above can always be looked in this circumstances of the case. In the absence of any papers or evidence of Sri Ram Abilekh the matter was examined with the available records. The connected file shows that first the house was put to sale on 16.3.62 when the bid of Smt. Amina was the highest for Rs.1210/- and an amount of Rs.121/- was deposited but subsequently for non deposit the balance money the sale was cancelled and the earnest money deposited was forfeited. It further seems from the documents filed that the house was put to sale on 12.7.82 and it was knocked down in favour of MaimunNissa, who deposited Rs.170/- as earnest money and on receipt of acceptance letter dt.10.6….. she deposited the balance sale consideration money on 26.6.65 and thereafter the certificate of sale was issued in her favour on 7.7.65 by Sri B.B. Verma, Managing Officer, Varanasi. I have seen the original documents. There is nothing to discredit the said documents and the testimony of Smt. MaimumNissa. There is no record in the office or any entry in the office register to show that any Sale Certificate was issued in favour of Mohd. Sattar @ Mohkan by this department. The sale certificate issued in favour of Smt. MaimunNissa is accordingly held valid.? (emphasis supplied)12. This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7 th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani). 13. The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit.
### Response:
0
### Explanation:
10. From the acceptance letter, it is noticeable that it has been issued under the signature of one B.B. Verma, Assistant Custodian and the same person issued a certificate of sale in his capacity as Managing Officer. It must be kept in mind that the application was moved by respondent No.3 and not by the appellant or any of his statedIn that situation, the enquiry into the application ought to be limited to the fact as to whether the documents relied upon by respondent No.3 before the authority, to claim that she had acquired right, title and interest in the suit property as a consequence of issuance of certificate of sale, were genuine. Neither the appellant nor hishas challenged the validity of the said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of respondent No.4 (Md. Sattar @ Mokhan).The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the competent authority or otherwise.This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7 th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani).The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit.
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Eastern Coalfields Ltd. and Ors Vs. Prativa Biswas and Ors | how the basic pay cannot be reduced. The same principle will be applicable to this case as well. Accordingly, the appeal is allowed. However, there shall be no order as to costs. 17. Shri Kalyan Bandopadhyay, learned senior Counsel for the Appellant, has relied upon the decision of this Court in State Bank of India and Ors. v. K.P. Subbaiah and Ors. (supra)/the relevant portion is extracted hereunder: 22. As noted above, a pay scale has different stages starting with initial pay and ending with ceiling pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage but also the additional amounts to which he is entitled as allowances e.g. DA etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced. ................. 25. There was no intention to protect any particular scale of pay. That being the position, the demand of a corresponding pay scale has no rationale. The High Court was, therefore, clearly in error in holding that the scale of pay was the determinative factor. The direction that while refixing the pay and DA the total pay fixed when the Petitioner entered into the Banks service has to be protected within the corresponding scale of pay cannot be maintained and is indefensible. It is apparent from the aforesaid decision that this Court has considered the facts of the particular case before it, and culled out that there was no intention to protect a particular scale of pay. The scale of pay was not a determinative factor. This Court, in the aforesaid context, observed, that while re-fixing the pay and dearness allowance, the direction that the total pay fixed, at the time when the Petitioner entered into the service be protected with the corresponding scale of pay, could not be maintained. There is no dispute with the proposition, however, in the instant case, the pay scales, as they prevailed in the ECL, had been opted; but the dispute arose about the fixation of the pay in that scale. Pay was fixed lower than what had been drawn earlier, i.e. the one which had prevailed in the erstwhile employment. In the instant case, option clearly intended that the pay was to be protected; and the emoluments as well. Thus, the intention in the instant case was otherwise and fitment has not been done correctly, as such, basic pay have to be revised. 18. Reliance has also been placed by the Appellants on a decision of High Court Employees Welfare Association v. State of West Bengal 2007 (3) SCC 637 in which this Court has observed: 26. A revision of pay scales has to be followed by fitment in the revised pay scales, in the case of all employees who are receiving payments under the old pay scales. Such fitment in the revised pay scales will have to ensure pay protection so that the total emoluments are not reduced on fitment in the revised pay scales. The problem of fitment is noticed in Samaraditya Pals Service Law (Second Edition, Page 277) thus: A pay scale has different stages. It starts with what is normally known as initial pay and ends with a ceiling. Each stage in the scale is represented by what is commonly referred to as basic pay. The emoluments which an employee takes home is not only the basic pay at a particular stage but also other admissible allowances viz. dearness allowance, house rent allowance etc. When the existing pay scale (Rs. 1,000-100-1,500-200-5,000) is revised (Rs. 2,000-200-3,000-400-10,000) the question of fitment arises in this form. At which stage of the new pay scale is an employee who is at the stage of Rs. 1,300 in the existing scale and is drawing a total emolument of Rs. 3,000 (including all allowances) on the day immediately preceding the date on which the revised pay scale becomes effective to be fitted? Therefore, a formula or principle of fitment is provided either in the pay revision Rules or by a separate order. Such a formula or principle for fitment is not required in the case of new recruits as they start at the lowest stage of the applicable pay scale or at such stage as stated in the terms of appointment. Rule 7 of the State Pay Rules relating to fixation of initial pay in the revised scale of pay thus applies only to existing employees who have been extended the benefit of a revised pay scale. The words fixation of initial pay in Rule 7 of State Pay Rules, refers to the first pay fixed in the revised scale, on fitment. Therefore the contention of the Petitioner that Rule 7 of State Pay Rules is intended to apply only to new recruits and the sole purpose of paras 9 and 10 of Minutes is to apply the principle of Rule 7 of State Pay Rules to existing employees is untenable. The decision does not espouse the cause of the Appellants, as this Court has considered in the aforesaid dictum the fitment when the revised pay scale is made applicable and when a new entrant comes, new entrant starts at the lowest stage of the applicable pay scale and gets the benefit of the pay scale. This Court has observed that the employees who are receiving under the old pay scale, fitment in the revised pay scale has to be made in the manner so that total emolument was not reduced in the revised pay scale. In our opinion that would not mean the pay can be reduced. This Court considered by said decision only the question to provide the protection to emoluments. 19. Thus, the reduction of basic pay drawn in the pay scale was wholly arbitrary and violates the order of the Single Bench dated 26.08.2002, | 0[ds]10. It was clearly indicated that CIL would ensure, that the fitment that was offered would not entail any drop in employees total emoluments. Emoluments are different than the basic salary. Fitment in the pay scale was not to entail any drop in total emoluments on absorption. Protection of basic pay is different connotation than the other emoluments that are paid. Even the emoluments were to be protected as decided in the aforesaid meeting.11. Coming to the option form in which options were invited on 24.12.1986 which gave two options; the first option was an option to be absorbed in the companys pay scales and terms and conditions, and Anr. option was to be absorbed in the company but retention of the government pay scales and revision in the ongoing pay scales and service conditions including pensionary benefits12. It is apparent from the option No. 1 that the employees who opt for the companys pay scales, terms and conditions, will continue to draw the same pay and allowance as admissible to them under the 3rd Pay Commission till 31.12.1985 and thereafter the 4th Pay Commission till 31st December, 1986 or subsequent date from which the revision of pay scales for the Coal Mining Industry takes place. Mention of a subsequent date for revision of pay scales for the Coal Mining Industry clearly indicates that even when the option was exercised to be absorbed in the companys pay scales, the pay which was drawn earlier was required to be protected till revision. However, the basic pay was to be protected in the revised pay scales from 1.1.1987 or from the subsequent date from which general revision takes place for the coal-mining workers. We are concerned in the instant case with the fitment on absorption. As per option No. 1 Clause (b), the basic salary that was being drawn clearly had to be protected, when the option for absorption in companys pay scales had been applied for. When we consider the emolument part also, a separate protection was given in the Option No. 1 itself, in clause(e), i.e. that the total emoluments which were being drawn by such incumbents, as on 31.12.1986 would, in any case, be protected, and that they would be placed in the companys appropriate pay scales/grades. So, there was a dual protection, one for the basic salary, and Anr. for the emoluments. The ECL has wrongly confused both the issues by overall taking the fixation by the inclusion of the emoluments. Salary was required to be protected, as well as the total emoluments that were being drawn; both could not have been reduced than what was being drawn as on 31.12.1986. Though we are not concerned with Option No. 2, such protection was available on continuance in the government pay scale.13. The Office Order dated 9.1.1987 has also been referred to on behalf the employer with respect to the terms and conditions of service in the subsidiaries of CIL in regard to the replacement of existing terms & conditions of services of Coal Mines Welfare Organisation. There was a clarification made with respect to Option No. 2 with that we are not concerned. Thus, wrong reliance placed on Option No. 2 resulted in the observation made by the single Bench that protection was only provided for the total emoluments of the employees and that shall be protected at the time of the re-fixation of the pay in the revised corresponding pay under NCWA-IV with effect from 1.1.1987. As already mentioned that Option No. 1 had been exercised in the instant case. Even in Option No. 2 basic pay as well as the emoluments continued to be as drawn.14. As a matter of fact, in the instant case, we need not have dilated on various issues as the matter stood concluded by the judgment and order passed by the single Bench in the previous round of litigation. The Single Bench vide order dated 26.08.2002 clearly ordered that the pay could not have been reduced as pay protection was assured to them and shortfall be made good if needed by way of personal adjustment.15. When the pay scales were converted to and paid in the Coal India Limited, Respondents pay drawn could not have been reduced, inasmuch as pay protection had been assured to them and in view of aforesaid order that attained finality and pay fixation was to be made in the manner that total emoluments drawn were not less. After fitment, if it was found that lesser amount was to be received as salary on or after 1.1.1987, it was required that the shortfall was made good by way of personal adjustment(s). Accordingly, protection was to be made on the fitment by grant of personal pay meaning thereby the pay could not have been reduced on the fitment in the ECL pay scales. The order 26.8.2002 was to be complied with in pith and substance; rather it was violated by the aforesaid method of fixation. As apparent from the aforesaid figure of fitment, pertaining to Prathiva Biswas, Senior Staff Nurse, Central Hospital, Kalla. The fitment that was made on 20/21 May 2003 was clearly in violation of the order as well as the provisions of option form and even subject to conditions on which the absorption had been made. Thus, in our opinion, the Division Bench has rightly set aside the order passed by the Single Bench by the order impugned; it was not the total emoluments that matters. Salary protection was to be ensured, it could not have been reduced apart from emoluments. There was dual protection; that was unfortunately ignored and overlooked by the ECL in spite of the clear and categorical order passed by the Single Bench in the writ application of 1993, which order had attained finality, and had not been questioned by any of the parties.17. Shri Kalyan Bandopadhyay, learned senior Counsel for the Appellant, has relied upon the decision of this Court in State Bank of India and Ors. v. K.P. Subbaiah and Ors.It is apparent from the aforesaid decision that this Court has considered the facts of the particular case before it, and culled out that there was no intention to protect a particular scale of pay. The scale of pay was not a determinative factor. This Court, in the aforesaid context, observed, that while re-fixing the pay and dearness allowance, the direction that the total pay fixed, at the time when the Petitioner entered into the service be protected with the corresponding scale of pay, could not be maintained. There is no dispute with the proposition, however, in the instant case, the pay scales, as they prevailed in the ECL, had been opted; but the dispute arose about the fixation of the pay in that scale. Pay was fixed lower than what had been drawn earlier, i.e. the one which had prevailed in the erstwhile employment. In the instant case, option clearly intended that the pay was to be protected; and the emoluments as well. Thus, the intention in the instant case was otherwise and fitment has not been done correctly, as such, basic pay have to be revised.18. Reliance has also been placed by the Appellants on a decision of High Court Employees Welfare Association v. State of West Bengal 2007 (3) SCC 637 Therefore, a formula or principle of fitment is provided either in the pay revision Rules or by a separate order. Such a formula or principle for fitment is not required in the case of new recruits as they start at the lowest stage of the applicable pay scale or at such stage as stated in the terms of appointment. Rule 7 of the State Pay Rules relating to fixation of initial pay in the revised scale of pay thus applies only to existing employees who have been extended the benefit of a revised pay scale. The words fixation of initial pay in Rule 7 of State Pay Rules, refers to the first pay fixed in the revised scale, on fitment. Therefore the contention of the Petitioner that Rule 7 of State Pay Rules is intended to apply only to new recruits and the sole purpose of paras 9 and 10 of Minutes is to apply the principle of Rule 7 of State Pay Rules to existing employees is untenable.The decision does not espouse the cause of the Appellants, as this Court has considered in the aforesaid dictum the fitment when the revised pay scale is made applicable and when a new entrant comes, new entrant starts at the lowest stage of the applicable pay scale and gets the benefit of the pay scale. This Court has observed that the employees who are receiving under the old pay scale, fitment in the revised pay scale has to be made in the manner so that total emolument was not reduced in the revised pay scale. In our opinion that would not mean the pay can be reduced. This Court considered by said decision only the question to provide the protection to emoluments.19. Thus, the reduction of basic pay drawn in the pay scale was wholly arbitrary and violates the order of the Single Bench dated 26.08.2002 | 0 | 4,750 | 1,676 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
how the basic pay cannot be reduced. The same principle will be applicable to this case as well. Accordingly, the appeal is allowed. However, there shall be no order as to costs. 17. Shri Kalyan Bandopadhyay, learned senior Counsel for the Appellant, has relied upon the decision of this Court in State Bank of India and Ors. v. K.P. Subbaiah and Ors. (supra)/the relevant portion is extracted hereunder: 22. As noted above, a pay scale has different stages starting with initial pay and ending with ceiling pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage but also the additional amounts to which he is entitled as allowances e.g. DA etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced. ................. 25. There was no intention to protect any particular scale of pay. That being the position, the demand of a corresponding pay scale has no rationale. The High Court was, therefore, clearly in error in holding that the scale of pay was the determinative factor. The direction that while refixing the pay and DA the total pay fixed when the Petitioner entered into the Banks service has to be protected within the corresponding scale of pay cannot be maintained and is indefensible. It is apparent from the aforesaid decision that this Court has considered the facts of the particular case before it, and culled out that there was no intention to protect a particular scale of pay. The scale of pay was not a determinative factor. This Court, in the aforesaid context, observed, that while re-fixing the pay and dearness allowance, the direction that the total pay fixed, at the time when the Petitioner entered into the service be protected with the corresponding scale of pay, could not be maintained. There is no dispute with the proposition, however, in the instant case, the pay scales, as they prevailed in the ECL, had been opted; but the dispute arose about the fixation of the pay in that scale. Pay was fixed lower than what had been drawn earlier, i.e. the one which had prevailed in the erstwhile employment. In the instant case, option clearly intended that the pay was to be protected; and the emoluments as well. Thus, the intention in the instant case was otherwise and fitment has not been done correctly, as such, basic pay have to be revised. 18. Reliance has also been placed by the Appellants on a decision of High Court Employees Welfare Association v. State of West Bengal 2007 (3) SCC 637 in which this Court has observed: 26. A revision of pay scales has to be followed by fitment in the revised pay scales, in the case of all employees who are receiving payments under the old pay scales. Such fitment in the revised pay scales will have to ensure pay protection so that the total emoluments are not reduced on fitment in the revised pay scales. The problem of fitment is noticed in Samaraditya Pals Service Law (Second Edition, Page 277) thus: A pay scale has different stages. It starts with what is normally known as initial pay and ends with a ceiling. Each stage in the scale is represented by what is commonly referred to as basic pay. The emoluments which an employee takes home is not only the basic pay at a particular stage but also other admissible allowances viz. dearness allowance, house rent allowance etc. When the existing pay scale (Rs. 1,000-100-1,500-200-5,000) is revised (Rs. 2,000-200-3,000-400-10,000) the question of fitment arises in this form. At which stage of the new pay scale is an employee who is at the stage of Rs. 1,300 in the existing scale and is drawing a total emolument of Rs. 3,000 (including all allowances) on the day immediately preceding the date on which the revised pay scale becomes effective to be fitted? Therefore, a formula or principle of fitment is provided either in the pay revision Rules or by a separate order. Such a formula or principle for fitment is not required in the case of new recruits as they start at the lowest stage of the applicable pay scale or at such stage as stated in the terms of appointment. Rule 7 of the State Pay Rules relating to fixation of initial pay in the revised scale of pay thus applies only to existing employees who have been extended the benefit of a revised pay scale. The words fixation of initial pay in Rule 7 of State Pay Rules, refers to the first pay fixed in the revised scale, on fitment. Therefore the contention of the Petitioner that Rule 7 of State Pay Rules is intended to apply only to new recruits and the sole purpose of paras 9 and 10 of Minutes is to apply the principle of Rule 7 of State Pay Rules to existing employees is untenable. The decision does not espouse the cause of the Appellants, as this Court has considered in the aforesaid dictum the fitment when the revised pay scale is made applicable and when a new entrant comes, new entrant starts at the lowest stage of the applicable pay scale and gets the benefit of the pay scale. This Court has observed that the employees who are receiving under the old pay scale, fitment in the revised pay scale has to be made in the manner so that total emolument was not reduced in the revised pay scale. In our opinion that would not mean the pay can be reduced. This Court considered by said decision only the question to provide the protection to emoluments. 19. Thus, the reduction of basic pay drawn in the pay scale was wholly arbitrary and violates the order of the Single Bench dated 26.08.2002,
### Response:
0
### Explanation:
on Option No. 2 resulted in the observation made by the single Bench that protection was only provided for the total emoluments of the employees and that shall be protected at the time of the re-fixation of the pay in the revised corresponding pay under NCWA-IV with effect from 1.1.1987. As already mentioned that Option No. 1 had been exercised in the instant case. Even in Option No. 2 basic pay as well as the emoluments continued to be as drawn.14. As a matter of fact, in the instant case, we need not have dilated on various issues as the matter stood concluded by the judgment and order passed by the single Bench in the previous round of litigation. The Single Bench vide order dated 26.08.2002 clearly ordered that the pay could not have been reduced as pay protection was assured to them and shortfall be made good if needed by way of personal adjustment.15. When the pay scales were converted to and paid in the Coal India Limited, Respondents pay drawn could not have been reduced, inasmuch as pay protection had been assured to them and in view of aforesaid order that attained finality and pay fixation was to be made in the manner that total emoluments drawn were not less. After fitment, if it was found that lesser amount was to be received as salary on or after 1.1.1987, it was required that the shortfall was made good by way of personal adjustment(s). Accordingly, protection was to be made on the fitment by grant of personal pay meaning thereby the pay could not have been reduced on the fitment in the ECL pay scales. The order 26.8.2002 was to be complied with in pith and substance; rather it was violated by the aforesaid method of fixation. As apparent from the aforesaid figure of fitment, pertaining to Prathiva Biswas, Senior Staff Nurse, Central Hospital, Kalla. The fitment that was made on 20/21 May 2003 was clearly in violation of the order as well as the provisions of option form and even subject to conditions on which the absorption had been made. Thus, in our opinion, the Division Bench has rightly set aside the order passed by the Single Bench by the order impugned; it was not the total emoluments that matters. Salary protection was to be ensured, it could not have been reduced apart from emoluments. There was dual protection; that was unfortunately ignored and overlooked by the ECL in spite of the clear and categorical order passed by the Single Bench in the writ application of 1993, which order had attained finality, and had not been questioned by any of the parties.17. Shri Kalyan Bandopadhyay, learned senior Counsel for the Appellant, has relied upon the decision of this Court in State Bank of India and Ors. v. K.P. Subbaiah and Ors.It is apparent from the aforesaid decision that this Court has considered the facts of the particular case before it, and culled out that there was no intention to protect a particular scale of pay. The scale of pay was not a determinative factor. This Court, in the aforesaid context, observed, that while re-fixing the pay and dearness allowance, the direction that the total pay fixed, at the time when the Petitioner entered into the service be protected with the corresponding scale of pay, could not be maintained. There is no dispute with the proposition, however, in the instant case, the pay scales, as they prevailed in the ECL, had been opted; but the dispute arose about the fixation of the pay in that scale. Pay was fixed lower than what had been drawn earlier, i.e. the one which had prevailed in the erstwhile employment. In the instant case, option clearly intended that the pay was to be protected; and the emoluments as well. Thus, the intention in the instant case was otherwise and fitment has not been done correctly, as such, basic pay have to be revised.18. Reliance has also been placed by the Appellants on a decision of High Court Employees Welfare Association v. State of West Bengal 2007 (3) SCC 637 Therefore, a formula or principle of fitment is provided either in the pay revision Rules or by a separate order. Such a formula or principle for fitment is not required in the case of new recruits as they start at the lowest stage of the applicable pay scale or at such stage as stated in the terms of appointment. Rule 7 of the State Pay Rules relating to fixation of initial pay in the revised scale of pay thus applies only to existing employees who have been extended the benefit of a revised pay scale. The words fixation of initial pay in Rule 7 of State Pay Rules, refers to the first pay fixed in the revised scale, on fitment. Therefore the contention of the Petitioner that Rule 7 of State Pay Rules is intended to apply only to new recruits and the sole purpose of paras 9 and 10 of Minutes is to apply the principle of Rule 7 of State Pay Rules to existing employees is untenable.The decision does not espouse the cause of the Appellants, as this Court has considered in the aforesaid dictum the fitment when the revised pay scale is made applicable and when a new entrant comes, new entrant starts at the lowest stage of the applicable pay scale and gets the benefit of the pay scale. This Court has observed that the employees who are receiving under the old pay scale, fitment in the revised pay scale has to be made in the manner so that total emolument was not reduced in the revised pay scale. In our opinion that would not mean the pay can be reduced. This Court considered by said decision only the question to provide the protection to emoluments.19. Thus, the reduction of basic pay drawn in the pay scale was wholly arbitrary and violates the order of the Single Bench dated 26.08.2002
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Commissioner Of Income-Tax, U.P Vs. Nainital Bank Ltd | the Commissioner raised two contentions, that by writing off either partially or wholly the amounts due from its constituents in its books of account the Bank did not expend or lay out expenditure within the meaning of S. 10 (2) (xv); and that in any event the expenditure was not laid out wholly and exclusively for the purposes of the business of the Bank. In its normal meaning the expression "expenditure" denotes "spending" or paying out or away" i. e. something that goes out of the coffers of the assessee. A mere liability to satisfy an obligation by an assessee is undoubtedly not "expenditure": it is only when he satisfies the obligation by delivery of cash or property or by settlement of accounts there is expenditure. But expenditure does not necessarily involve actual delivery or parting with money or property. If there are cross claims-one by the assessee against a stranger and the other by the stranger against the assessee-and as a result of accounting the balance due only is paid, the amount, which is debited against the assessee in the settlement of accounts may appropriately be termed expenditure within the meaning of S. 10 (2) (xv). 5. Counsel for the Commissioner submitted that when the Bank advanced a loan to its constituent it incurred expenditure and when the Bank failed to recover under an arrangement with the constituent the amount due to it, there was merely an act of forbearance to enforce the demand and such an act of forbearance was not expenditure within the meaning of S. 10 (2) (xv). Mere forbearance to realize a claim, it may be accepted, is not expenditure within the meaning of the Act; but we are not called upon to consider whether the advances made by the Bank to its constituents may in certain circumstances constitute expenditure. Nor can it be said that there was by the settlements mere forbearance to recover the amount. The settlements made by the Bank with its constituents were in their nature bilateral: each constituent admitted his liability to repay the amount which had been advanced to him, and the Bank admitted liability to pay to the constituent the value of the jewellery pledged with it. When the Bank paid to the constituent the difference between the value of the jewellery pledged with it and the amount due by the constituent, the Bank in effect paid the value of the jewellery against payment by the constituent of the amount due by him. In making payment of that difference the Bank in truth laid out expenditure equal to the value of the jewellery pledged. 6. It was urged by the Commissioner that the Bank was under no legal liability to pay to the constituents the value of the jewellery pledged with it. It was said that the Bank was, as a pledgee, a bailee of the jewellery and was in law required to take as much care of the pledged jewellery as a person of ordinary prudence would take under similar circumstances of his own jewellery of the same bulk quantity and value, and the Bank having provided an adequate number of watchmen, it was not liable for the loss of the property pledged. Granting that on proof that it had taken as much care of the jewellery pledged with it as it would have taken, if it belonged to it, the Bank could enforce its rights and recover the full amount due from the constituents, the question still remains whether in admitting liability for the value of the jewellery pledged, the Bank laid out expenditure for the purpose of the business. The question is not about the strict enforcement of the legal rights and obligations between the Bank and its constituents. The sole question whether the Bank in incurring the expenditure acted in the interest of and for the purpose of its business. The Bank is carrying on banking business and advances loans on the security of jewellery. The credit of a banking business is very sensitive: it largely thrives upon the confidence which its constituents have in its management. To maintain that confidence the management has often to make concessions and thereby to preserve the goodwill of the business and its relations with the clientele. The Bank could have if so advised taken its stand strictly on its legal obligations, and could have recovered the amounts due by the constituents at the same time denying liability to make any compensation for the loss of jewellery pledged with it. But such a stand might very well have ruined its business, especially in the rural areas in which it operated. The Bank had evidently two courses open: to enforce its rights strictly according to law, and thereby to lose the goodwill it had built up among the constituents, or to compensate the constituents for loss of their jewellery, and maintain its business connections and goodwill. In choosing the second alternative, in our judgment, the Bank laid out expenditure for the purpose of its business. Paying to the constituents the price of the jewellery stolen in a robbery or a burglary was therefore expenditure for the purpose of the business. There can be no doubt that the expenditure was wholly and exclusively in the interest of the business. The expenditure was laid out for no other purpose. 7. We hold accordingly that the settlements with the constituents and the consequent posting of entries in the books of account cannot be regarded as forbearance to enforce the claim of the Bank to recover the loans advanced. The settlement consisted of two constituent elements -paying by the Bank of the value of the jewellery pledged with it against receipt from the constituent the amount which was recoverable by the Bank. The first element of the transaction would appropriately be deemed expenditure and such expenditure having been laid out for protecting and furthering the business of the Bank was properly admissible under S. 10 (2) (xv) of the Income tax Act, 1922. | 0[ds]It was said that the Bank was, as a pledgee, a bailee of the jewellery and was in law required to take as much care of the pledged jewellery as a person of ordinary prudence would take under similar circumstances of his own jewellery of the same bulk quantity and value, and the Bank having provided an adequate number of watchmen, it was not liable for the loss of the property pledged. Granting that on proof that it had taken as much care of the jewellery pledged with it as it would have taken, if it belonged to it, the Bank could enforce its rights and recover the full amount due from the constituents, the question still remains whether in admitting liability for the value of the jewellery pledged, the Bank laid out expenditure for the purpose of the business. The question is not about the strict enforcement of the legal rights and obligations between the Bank and its constituents. The sole question whether the Bank in incurring the expenditure acted in the interest of and for the purpose of its business. The Bank is carrying on banking business and advances loans on the security of jewellery. The credit of a banking business is very sensitive: it largely thrives upon the confidence which its constituents have in its management. To maintain that confidence the management has often to make concessions and thereby to preserve the goodwill of the business and its relations with the clientele. The Bank could have if so advised taken its stand strictly on its legal obligations, and could have recovered the amounts due by the constituents at the same time denying liability to make any compensation for the loss of jewellery pledged with it. But such a stand might very well have ruined its business, especially in the rural areas in which it operated. The Bank had evidently two courses open: to enforce its rights strictly according to law, and thereby to lose the goodwill it had built up among the constituents, or to compensate the constituents for loss of their jewellery, and maintain its business connections and goodwill. In choosing the second alternative, in our judgment, the Bank laid out expenditure for the purpose of its business. Paying to the constituents the price of the jewellery stolen in a robbery or a burglary was therefore expenditure for the purpose of the business. There can be no doubt that the expenditure was wholly and exclusively in the interest of the business. The expenditure was laid out for no other purpose7. We hold accordingly that the settlements with the constituents and the consequent posting of entries in the books of account cannot be regarded as forbearance to enforce the claim of the Bank to recover the loans advanced. The settlement consisted of two constituent elements -paying by the Bank of the value of the jewellery pledged with it against receipt from the constituent the amount which was recoverable by the Bank. The first element of the transaction would appropriately be deemed expenditure and such expenditure having been laid out for protecting and furthering the business of the Bank was properly admissible under S. 10 (2) (xv) of the Income tax Act, 1922In its normal meaning the expression "expenditure" denotes "spending" or paying out or away" i. e. something that goes out of the coffers of the assessee. A mere liability to satisfy an obligation by an assessee is undoubtedly not "expenditure": it is only when he satisfies the obligation by delivery of cash or property or by settlement of accounts there is expenditure. But expenditure does not necessarily involve actual delivery or parting with money or property. If there are crosse by the assessee against a stranger and the other by the stranger against thed as a result of accounting the balance due only is paid, the amount, which is debited against the assessee in the settlement of accounts may appropriately be termed expenditure within the meaning of S. 10 (2) (xv)Mere forbearance to realize a claim, it may be accepted, is not expenditure within the meaning of the Act; but we are not called upon to consider whether the advances made by the Bank to its constituents may in certain circumstances constitute expenditure. Nor can it be said that there was by the settlements mere forbearance to recover the amount. The settlements made by the Bank with its constituents were in their nature bilateral: each constituent admitted his liability to repay the amount which had been advanced to him, and the Bank admitted liability to pay to the constituent the value of the jewellery pledged with it. When the Bank paid to the constituent the difference between the value of the jewellery pledged with it and the amount due by the constituent, the Bank in effect paid the value of the jewellery against payment by the constituent of the amount due by him. In making payment of that difference the Bank in truth laid out expenditure equal to the value of the jewellery pledged. | 0 | 1,631 | 910 | ### 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 Commissioner raised two contentions, that by writing off either partially or wholly the amounts due from its constituents in its books of account the Bank did not expend or lay out expenditure within the meaning of S. 10 (2) (xv); and that in any event the expenditure was not laid out wholly and exclusively for the purposes of the business of the Bank. In its normal meaning the expression "expenditure" denotes "spending" or paying out or away" i. e. something that goes out of the coffers of the assessee. A mere liability to satisfy an obligation by an assessee is undoubtedly not "expenditure": it is only when he satisfies the obligation by delivery of cash or property or by settlement of accounts there is expenditure. But expenditure does not necessarily involve actual delivery or parting with money or property. If there are cross claims-one by the assessee against a stranger and the other by the stranger against the assessee-and as a result of accounting the balance due only is paid, the amount, which is debited against the assessee in the settlement of accounts may appropriately be termed expenditure within the meaning of S. 10 (2) (xv). 5. Counsel for the Commissioner submitted that when the Bank advanced a loan to its constituent it incurred expenditure and when the Bank failed to recover under an arrangement with the constituent the amount due to it, there was merely an act of forbearance to enforce the demand and such an act of forbearance was not expenditure within the meaning of S. 10 (2) (xv). Mere forbearance to realize a claim, it may be accepted, is not expenditure within the meaning of the Act; but we are not called upon to consider whether the advances made by the Bank to its constituents may in certain circumstances constitute expenditure. Nor can it be said that there was by the settlements mere forbearance to recover the amount. The settlements made by the Bank with its constituents were in their nature bilateral: each constituent admitted his liability to repay the amount which had been advanced to him, and the Bank admitted liability to pay to the constituent the value of the jewellery pledged with it. When the Bank paid to the constituent the difference between the value of the jewellery pledged with it and the amount due by the constituent, the Bank in effect paid the value of the jewellery against payment by the constituent of the amount due by him. In making payment of that difference the Bank in truth laid out expenditure equal to the value of the jewellery pledged. 6. It was urged by the Commissioner that the Bank was under no legal liability to pay to the constituents the value of the jewellery pledged with it. It was said that the Bank was, as a pledgee, a bailee of the jewellery and was in law required to take as much care of the pledged jewellery as a person of ordinary prudence would take under similar circumstances of his own jewellery of the same bulk quantity and value, and the Bank having provided an adequate number of watchmen, it was not liable for the loss of the property pledged. Granting that on proof that it had taken as much care of the jewellery pledged with it as it would have taken, if it belonged to it, the Bank could enforce its rights and recover the full amount due from the constituents, the question still remains whether in admitting liability for the value of the jewellery pledged, the Bank laid out expenditure for the purpose of the business. The question is not about the strict enforcement of the legal rights and obligations between the Bank and its constituents. The sole question whether the Bank in incurring the expenditure acted in the interest of and for the purpose of its business. The Bank is carrying on banking business and advances loans on the security of jewellery. The credit of a banking business is very sensitive: it largely thrives upon the confidence which its constituents have in its management. To maintain that confidence the management has often to make concessions and thereby to preserve the goodwill of the business and its relations with the clientele. The Bank could have if so advised taken its stand strictly on its legal obligations, and could have recovered the amounts due by the constituents at the same time denying liability to make any compensation for the loss of jewellery pledged with it. But such a stand might very well have ruined its business, especially in the rural areas in which it operated. The Bank had evidently two courses open: to enforce its rights strictly according to law, and thereby to lose the goodwill it had built up among the constituents, or to compensate the constituents for loss of their jewellery, and maintain its business connections and goodwill. In choosing the second alternative, in our judgment, the Bank laid out expenditure for the purpose of its business. Paying to the constituents the price of the jewellery stolen in a robbery or a burglary was therefore expenditure for the purpose of the business. There can be no doubt that the expenditure was wholly and exclusively in the interest of the business. The expenditure was laid out for no other purpose. 7. We hold accordingly that the settlements with the constituents and the consequent posting of entries in the books of account cannot be regarded as forbearance to enforce the claim of the Bank to recover the loans advanced. The settlement consisted of two constituent elements -paying by the Bank of the value of the jewellery pledged with it against receipt from the constituent the amount which was recoverable by the Bank. The first element of the transaction would appropriately be deemed expenditure and such expenditure having been laid out for protecting and furthering the business of the Bank was properly admissible under S. 10 (2) (xv) of the Income tax Act, 1922.
### Response:
0
### Explanation:
It was said that the Bank was, as a pledgee, a bailee of the jewellery and was in law required to take as much care of the pledged jewellery as a person of ordinary prudence would take under similar circumstances of his own jewellery of the same bulk quantity and value, and the Bank having provided an adequate number of watchmen, it was not liable for the loss of the property pledged. Granting that on proof that it had taken as much care of the jewellery pledged with it as it would have taken, if it belonged to it, the Bank could enforce its rights and recover the full amount due from the constituents, the question still remains whether in admitting liability for the value of the jewellery pledged, the Bank laid out expenditure for the purpose of the business. The question is not about the strict enforcement of the legal rights and obligations between the Bank and its constituents. The sole question whether the Bank in incurring the expenditure acted in the interest of and for the purpose of its business. The Bank is carrying on banking business and advances loans on the security of jewellery. The credit of a banking business is very sensitive: it largely thrives upon the confidence which its constituents have in its management. To maintain that confidence the management has often to make concessions and thereby to preserve the goodwill of the business and its relations with the clientele. The Bank could have if so advised taken its stand strictly on its legal obligations, and could have recovered the amounts due by the constituents at the same time denying liability to make any compensation for the loss of jewellery pledged with it. But such a stand might very well have ruined its business, especially in the rural areas in which it operated. The Bank had evidently two courses open: to enforce its rights strictly according to law, and thereby to lose the goodwill it had built up among the constituents, or to compensate the constituents for loss of their jewellery, and maintain its business connections and goodwill. In choosing the second alternative, in our judgment, the Bank laid out expenditure for the purpose of its business. Paying to the constituents the price of the jewellery stolen in a robbery or a burglary was therefore expenditure for the purpose of the business. There can be no doubt that the expenditure was wholly and exclusively in the interest of the business. The expenditure was laid out for no other purpose7. We hold accordingly that the settlements with the constituents and the consequent posting of entries in the books of account cannot be regarded as forbearance to enforce the claim of the Bank to recover the loans advanced. The settlement consisted of two constituent elements -paying by the Bank of the value of the jewellery pledged with it against receipt from the constituent the amount which was recoverable by the Bank. The first element of the transaction would appropriately be deemed expenditure and such expenditure having been laid out for protecting and furthering the business of the Bank was properly admissible under S. 10 (2) (xv) of the Income tax Act, 1922In its normal meaning the expression "expenditure" denotes "spending" or paying out or away" i. e. something that goes out of the coffers of the assessee. A mere liability to satisfy an obligation by an assessee is undoubtedly not "expenditure": it is only when he satisfies the obligation by delivery of cash or property or by settlement of accounts there is expenditure. But expenditure does not necessarily involve actual delivery or parting with money or property. If there are crosse by the assessee against a stranger and the other by the stranger against thed as a result of accounting the balance due only is paid, the amount, which is debited against the assessee in the settlement of accounts may appropriately be termed expenditure within the meaning of S. 10 (2) (xv)Mere forbearance to realize a claim, it may be accepted, is not expenditure within the meaning of the Act; but we are not called upon to consider whether the advances made by the Bank to its constituents may in certain circumstances constitute expenditure. Nor can it be said that there was by the settlements mere forbearance to recover the amount. The settlements made by the Bank with its constituents were in their nature bilateral: each constituent admitted his liability to repay the amount which had been advanced to him, and the Bank admitted liability to pay to the constituent the value of the jewellery pledged with it. When the Bank paid to the constituent the difference between the value of the jewellery pledged with it and the amount due by the constituent, the Bank in effect paid the value of the jewellery against payment by the constituent of the amount due by him. In making payment of that difference the Bank in truth laid out expenditure equal to the value of the jewellery pledged.
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Commissioner of Income Tax Vs. Gemini Pictures Circuit Private Limited | per sq. yard. Neither the sale deed under which the assessee purchased the said land nor the sale deeds executed by it in 1966-67 describe the land as agricultural land. It could not be so described for the simple reason that it was registered in the municipal records as urban land and urban land tax was levied thereon. After purchasing the land, the assessee itself constructed two large buildings thereon. Indeed, the buildings were being used for non-residential purposes. The land is situated on Mount Road, Madras, which is the most important and the busiest thoroughfare in the city. The land is surrounded on all sides by industrial and commercial buildings. No agricultural operations were being carried out on any land nearby. In the face of the above circumstances, the mere fact that vegetables were being raised thereon at the time of the sale or for some years prior thereto does not change the nature and character of the land. Obviously, it was only a stop-gap activity. It was not a true reflection of the nature and character of the land. It is a matter of common knowledge that in the heart of New Delhi, there are houses with large compounds wherein a portion of the open land is used for raising vegetables. That does not make those portions agricultural lands. In the case of the assessee too, the raising of vegetables was a stop-gap activity until the assessee found a better use for it, whether construction of buildings or sale. It is well to remember that the question whether a particular land is agricultural land has to be decided on a totality of the relevant facts and circumstances. There may be circumstances for and against. They have to be weighed together and a reasonable decision arrived at. One has to take a realistic view and see how the persons selling and purchasing it understood it. Is it believable that in 1966-67, the assessee and the aforesaid purchasers were under the impression that they were selling and purchasing agricultural land ? Did they consider and treat the land as agricultural land ? The answer is too evident to call for an elucidationCertain decisions have been cited before us by counsel for both the parties in support of their respective stands. It must, however, be remembered that facts of no two cases will be identical. The tests evolved by the courts are in the nature of guidelines. No hard and fast rules can be laid down in the matter, for the reason that it is essentially a question of fact. Even so, a brief reference to the cases cited would be in order. Strong reliance was placed by Sri Aruneshwar Gupta upon the two decisions of the Gujarat High Court in Gordhanbhai Kahandas Dalwadi v. CIT and Dr. Motibhai D. Patel v. CIT. In the first case, the land was registered as agricultural land in the revenue records and land revenue was being paid thereon. No permission was taken for converting it to non-agricultural use before the date of sale. Potential non-agricultural use or the fact that development had taken place in the vicinity of the land, it was held, do not militate against the fact that it was agricultural land. In the next case too, the land was registered as agricultural land and permission to convert it into non-agricultural land was not obtained before the date of sale. In the circumstances, it was held that the mere fact that it was sold at a high price only indicates its potentiality for non-agricultural use. On a consideration of the entirety of the circumstances, it was held that it was agricultural land. 4. A recent decision of this court in Sarifabibi Mohmed Ibrahim v. CIT, rendered by a Bench comprising one of us (B. P. Jeevan Reddy J.) is relied upon by learned counsel for the Revenue. The Bench observed (page 637) : "Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The court has to answer the question on a consideration of all of them--a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts." * 5. Several judgments of this court and the High Courts were referred to including a judgment of the Bombay High Court in CIT v. V. A. Trivedi. On a consideration of the factors for and against, the Bombay High Court observed in V. A. Trivedis case that for ascertaining the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the date of sale and further whether on the date of sale the land was intended to be put to use for agricultural purposes for a reasonable span of time in future. Examining the case from the said point of view, the High Court held that the fact that the agreement of sale was entered into by the assessee with a housing society is of crucial relevance since it showed that the assessee had agreed to sell the land for admittedly non-agricultural purposes. The ratio of the said decision was approved in Sarifabibis case (SC)We do not think it necessary to multiply the cases, since, in our respectful opinion, no other conclusion is reasonably possible in the facts of the case before us than the one arrived at by us. All the three authorities under the Act too arrived at the same conclusion. With great respect to the learned judges of the High Court, we find their conclusion wholly unsustainable and unacceptable 6. | 1[ds]The answer is too evident to call for an elucidationCertain decisions have been cited before us by counsel for both the parties in support of their respective stands. It must, however, be remembered that facts of no two cases will be identical. The tests evolved by the courts are in the nature of guidelines. No hard and fast rules can be laid down in the matter, for the reason that it is essentially a question ofthe face of the above circumstances, the mere fact that vegetables were being raised thereon at the time of the sale or for some years prior thereto does not change the nature and character of the land. Obviously, it was only a stop-gap activity. It was not a true reflection of the nature and character of the land. It is a matter of common knowledge that in the heart of New Delhi, there are houses with large compounds wherein a portion of the open land is used for raising vegetables. That does not make those portions agricultural lands. In the case of the assessee too, the raising of vegetables was a stop-gap activity until the assessee found a better use for it, whether construction of buildings or sale. It is well to remember that the question whether a particular land is agricultural land has to be decided on a totality of the relevant facts and circumstances. There may be circumstances for and against. They have to be weighed together and a reasonable decision arriveddo not think it necessary to multiply the cases, since, in our respectful opinion, no other conclusion is reasonably possible in the facts of the case before us than the one arrived at by us. All the three authorities under the Act too arrived at the same conclusion. With great respect to the learned judges of the High Court, we find their conclusion wholly unsustainable and unacceptable | 1 | 2,282 | 344 | ### 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:
per sq. yard. Neither the sale deed under which the assessee purchased the said land nor the sale deeds executed by it in 1966-67 describe the land as agricultural land. It could not be so described for the simple reason that it was registered in the municipal records as urban land and urban land tax was levied thereon. After purchasing the land, the assessee itself constructed two large buildings thereon. Indeed, the buildings were being used for non-residential purposes. The land is situated on Mount Road, Madras, which is the most important and the busiest thoroughfare in the city. The land is surrounded on all sides by industrial and commercial buildings. No agricultural operations were being carried out on any land nearby. In the face of the above circumstances, the mere fact that vegetables were being raised thereon at the time of the sale or for some years prior thereto does not change the nature and character of the land. Obviously, it was only a stop-gap activity. It was not a true reflection of the nature and character of the land. It is a matter of common knowledge that in the heart of New Delhi, there are houses with large compounds wherein a portion of the open land is used for raising vegetables. That does not make those portions agricultural lands. In the case of the assessee too, the raising of vegetables was a stop-gap activity until the assessee found a better use for it, whether construction of buildings or sale. It is well to remember that the question whether a particular land is agricultural land has to be decided on a totality of the relevant facts and circumstances. There may be circumstances for and against. They have to be weighed together and a reasonable decision arrived at. One has to take a realistic view and see how the persons selling and purchasing it understood it. Is it believable that in 1966-67, the assessee and the aforesaid purchasers were under the impression that they were selling and purchasing agricultural land ? Did they consider and treat the land as agricultural land ? The answer is too evident to call for an elucidationCertain decisions have been cited before us by counsel for both the parties in support of their respective stands. It must, however, be remembered that facts of no two cases will be identical. The tests evolved by the courts are in the nature of guidelines. No hard and fast rules can be laid down in the matter, for the reason that it is essentially a question of fact. Even so, a brief reference to the cases cited would be in order. Strong reliance was placed by Sri Aruneshwar Gupta upon the two decisions of the Gujarat High Court in Gordhanbhai Kahandas Dalwadi v. CIT and Dr. Motibhai D. Patel v. CIT. In the first case, the land was registered as agricultural land in the revenue records and land revenue was being paid thereon. No permission was taken for converting it to non-agricultural use before the date of sale. Potential non-agricultural use or the fact that development had taken place in the vicinity of the land, it was held, do not militate against the fact that it was agricultural land. In the next case too, the land was registered as agricultural land and permission to convert it into non-agricultural land was not obtained before the date of sale. In the circumstances, it was held that the mere fact that it was sold at a high price only indicates its potentiality for non-agricultural use. On a consideration of the entirety of the circumstances, it was held that it was agricultural land. 4. A recent decision of this court in Sarifabibi Mohmed Ibrahim v. CIT, rendered by a Bench comprising one of us (B. P. Jeevan Reddy J.) is relied upon by learned counsel for the Revenue. The Bench observed (page 637) : "Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The court has to answer the question on a consideration of all of them--a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts." * 5. Several judgments of this court and the High Courts were referred to including a judgment of the Bombay High Court in CIT v. V. A. Trivedi. On a consideration of the factors for and against, the Bombay High Court observed in V. A. Trivedis case that for ascertaining the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the date of sale and further whether on the date of sale the land was intended to be put to use for agricultural purposes for a reasonable span of time in future. Examining the case from the said point of view, the High Court held that the fact that the agreement of sale was entered into by the assessee with a housing society is of crucial relevance since it showed that the assessee had agreed to sell the land for admittedly non-agricultural purposes. The ratio of the said decision was approved in Sarifabibis case (SC)We do not think it necessary to multiply the cases, since, in our respectful opinion, no other conclusion is reasonably possible in the facts of the case before us than the one arrived at by us. All the three authorities under the Act too arrived at the same conclusion. With great respect to the learned judges of the High Court, we find their conclusion wholly unsustainable and unacceptable 6.
### Response:
1
### Explanation:
The answer is too evident to call for an elucidationCertain decisions have been cited before us by counsel for both the parties in support of their respective stands. It must, however, be remembered that facts of no two cases will be identical. The tests evolved by the courts are in the nature of guidelines. No hard and fast rules can be laid down in the matter, for the reason that it is essentially a question ofthe face of the above circumstances, the mere fact that vegetables were being raised thereon at the time of the sale or for some years prior thereto does not change the nature and character of the land. Obviously, it was only a stop-gap activity. It was not a true reflection of the nature and character of the land. It is a matter of common knowledge that in the heart of New Delhi, there are houses with large compounds wherein a portion of the open land is used for raising vegetables. That does not make those portions agricultural lands. In the case of the assessee too, the raising of vegetables was a stop-gap activity until the assessee found a better use for it, whether construction of buildings or sale. It is well to remember that the question whether a particular land is agricultural land has to be decided on a totality of the relevant facts and circumstances. There may be circumstances for and against. They have to be weighed together and a reasonable decision arriveddo not think it necessary to multiply the cases, since, in our respectful opinion, no other conclusion is reasonably possible in the facts of the case before us than the one arrived at by us. All the three authorities under the Act too arrived at the same conclusion. With great respect to the learned judges of the High Court, we find their conclusion wholly unsustainable and unacceptable
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Devi Dass Vs. Mohan Lal | 1. Special leave to appeal granted. 2. This appeal arises of a proceeding for eviction and the tenant is the appellant before us. Respondent Mohan Lals claim for ejectment was allowed on the ground that the required the disputed premises for his own use and occupation. He purchased the building of which the disputed premises is a part on May 11, 1972 from its original owners Jagiri Lal and Vasudev. The courts below recorded a finding accepting Mohan Lals case of requirement and the High Court affirmed that finding. According to the tenant the sale by the original owners in favour of Mohal Lal was not a bona fide one and had been made with the ulterior motive of evicting the tenant. The tenants case, as set out in the judgment of the appellate authority, was as follows : Learned counsel for the appellant while challenging the finding of the trial court under issue 1 has further contended that the sale deed Ex. A-1 is a sham transaction and no right, title or interest passed to Mohan Lal under this document. In this context it has also been argued that the sale consideration was not received by Jagiri Lal and Vasudev and in fact Jugal Kishore, father of Mohan Lal executed the sale deed in the name of his son Mohan Lal, acting as Mukhtar of Jagiri Lal and Vasudev and this was done in order to have ground for ejectment created against Devi Dass, as earlier several applications filed by Jugal Kishore as Mukhtar of the landlords, Jagiri Lal and Vasudev for ejectment of Devi Dass, the tenant from the premises in dispute, had failed. 3. The appellate authority rejected the tenants case on the view that tenant could not challenge the validity of the sale deed executed in favour of Mohan Lal because the tenant was not a party to it. We do not think this was a correct view to take. An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however did not permit counsel for the tenant to refer to the evidence adduced on this aspect of the matter. The High Court also did not advert to it. | 1[ds]3. The appellate authority rejected the tenants case on the view that tenant could not challenge the validity of the sale deed executed in favour of Mohan Lal because the tenant was not a party to it. We do not think this was a correct view to take. An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however did not permit counsel for the tenant to refer to the evidence adduced on this aspect of the matter. The High Court also did not advert to it. | 1 | 414 | 121 | ### 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:
1. Special leave to appeal granted. 2. This appeal arises of a proceeding for eviction and the tenant is the appellant before us. Respondent Mohan Lals claim for ejectment was allowed on the ground that the required the disputed premises for his own use and occupation. He purchased the building of which the disputed premises is a part on May 11, 1972 from its original owners Jagiri Lal and Vasudev. The courts below recorded a finding accepting Mohan Lals case of requirement and the High Court affirmed that finding. According to the tenant the sale by the original owners in favour of Mohal Lal was not a bona fide one and had been made with the ulterior motive of evicting the tenant. The tenants case, as set out in the judgment of the appellate authority, was as follows : Learned counsel for the appellant while challenging the finding of the trial court under issue 1 has further contended that the sale deed Ex. A-1 is a sham transaction and no right, title or interest passed to Mohan Lal under this document. In this context it has also been argued that the sale consideration was not received by Jagiri Lal and Vasudev and in fact Jugal Kishore, father of Mohan Lal executed the sale deed in the name of his son Mohan Lal, acting as Mukhtar of Jagiri Lal and Vasudev and this was done in order to have ground for ejectment created against Devi Dass, as earlier several applications filed by Jugal Kishore as Mukhtar of the landlords, Jagiri Lal and Vasudev for ejectment of Devi Dass, the tenant from the premises in dispute, had failed. 3. The appellate authority rejected the tenants case on the view that tenant could not challenge the validity of the sale deed executed in favour of Mohan Lal because the tenant was not a party to it. We do not think this was a correct view to take. An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however did not permit counsel for the tenant to refer to the evidence adduced on this aspect of the matter. The High Court also did not advert to it.
### Response:
1
### Explanation:
3. The appellate authority rejected the tenants case on the view that tenant could not challenge the validity of the sale deed executed in favour of Mohan Lal because the tenant was not a party to it. We do not think this was a correct view to take. An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however did not permit counsel for the tenant to refer to the evidence adduced on this aspect of the matter. The High Court also did not advert to it.
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Union Of India Vs. A.L. Rallia Ram | contractor not covered by the contract Rs. 67, 000/- were found due by the Railway Company to the contractor on the basis of fair and reasonable rates. The contractor claimed interest on that amount for the period prior to the date of the suit. The Judicial Committee held that interest on the amount awarded as compensation could not be awarded by way of damages, and there being no contract, nor statute, nor usage in support of such a claim, the claim for interest had to be disallowedIn dealing with the claim for interest on the principle incorporated in illustration (n) of s. 73 of the Indian Contract Act which is as follows(n) "A, contracts to pay a sum of money to B, on a day specified. A, dose not pay the money on that day; B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally ruined. A, is not liable to make good to B, anything except the principle sum he contracted to pay, together with interest up to the day of payment."16. The Judicial Committee observed at p. 72"The illustration, however, does not deal with the right of a creditor to recover interest from his debtor on a loan advanced to the latter by the former. It only shows that if any person breaks his contract to pay to another person a sum of money on a specific date, and in consequence of that breach the latter is unable to pay his debts and is ruined, the former is not liable to make good to the latter anything except the principal sum which he promised to pay, together with interest up to the date of payment. The illustration does not confer upon a creditor a right to recover interest upon a debt which is due to him, when he is not entitled to such interest under any provision of the law. Nor can an illustration have the effect of modifying the language of the section which alone forms the enactment."17. Illustration (n) therefore does not aid the respondent18. Mr. Pathak submitted that interest may be awarded on grounds of equity, and placed reliance upon the Interest Act, 32 of 1839. Under that Act the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. The Act, however, contains a proviso that interest shall be payable in all cases in which it is now payable by law. This proviso applies to cases in which the Court of Equity exercises jurisdiction to allow interest. As observed by the Judicial Committee in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) after referring to the observation made by Lord Tomlin in Maine and New Brunswick Electrical Power Company v. Hart (1929 A.C. 631, 640.), observed"In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non- performance of a contract which equity can give specific performance. The present case does not, however, attract the equitable jurisdiction of the court and cannot come within the purview of the proviso19. The judgment of Their Lordships of the Privy Council in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) was relied upon in Seth Thawerdas Pherumals case (1955 2 S.C.R. 48.) in negativing a claim for interest. In that case a contractor had entered into a contract with the Dominion of India for supply of bricks. Under a clause which required that all disputes between the parties to the contract should be referred to arbitration, dispute having arisen, the matter was referred to arbitration and the arbitrator gave award in the contractors favour. The Union of India which had succeeded to the rights and obligations of the Dominion contested the award on numerous grounds one of which was the liability to pay interest on the amount awarded. Bose, J. in delivering judgment of the Court observed that the interest awarded to the contractor could not in law be awarded. He pointed out that an arbitrator is not a court within the meaning of the Interest Act of 1839 : in any event interest could only be awarded if there was a debt or a sum certain, payable at a certain time or otherwise, by virtue of some written contract at a certain time and there must have been a demand in writing stating that interest will be claimed from the date of the demand. In the view of Bose, J. none of the elements was present and the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonableThe umpire has awarded interest to the respondent on the footing that for the purpose of carrying out his contract with the Government of India, the respondent was required to make arrangements by borrowing moneys from his bankers and he had to pay interest in that behalf, and when the contract was abandoned after it was partially performed, the Government of India became liable to make good the loss of interest which the respondent suffered. We know of no principle on which the Government of India could be rendered liable for payment of interest in the circumstances relied upon. In respect of that part of the contract which was abandoned, if any liability to pay interest had arisen it was for the respondent to claim it in settling the terms on which cancellation of the contract was to be made. In respect of the goods which had been returned by him, he could claim compensation for breach of warranty, but such compensation could not include interest as damages for detention of money. Interest was therefore allowed on a view of the law which appeared on the face of the award to be erroneous20. | 1[ds]Mr. Pathak submitted that interest may be awarded on grounds of equity, and placed reliance upon the Interest Act, 32 of 1839. Under that Act the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. The Act, however, contains a proviso that interest shall be payable in all cases in which it is now payable by law. This proviso applies to cases in which the Court of Equity exercises jurisdiction to allow interest. As observed by the Judicial Committee in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) after referring to the observation made by Lord Tomlin in Maine and New Brunswick Electrical Power Company v. Hart (1929 A.C. 631, 640.), observed"In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non- performance of a contract which equity can give specific performance. The present case does not, however, attract the equitable jurisdiction of the court and cannot come within the purview of thejudgment of Their Lordships of the Privy Council in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) was relied upon in Seth Thawerdas Pherumals case (1955 2 S.C.R. 48.) in negativing a claim for interest. In that case a contractor had entered into a contract with the Dominion of India for supply of bricks. Under a clause which required that all disputes between the parties to the contract should be referred to arbitration, dispute having arisen, the matter was referred to arbitration and the arbitrator gave award in the contractors favour. The Union of India which had succeeded to the rights and obligations of the Dominion contested the award on numerous grounds one of which was the liability to pay interest on the amount awarded. Bose, J. in delivering judgment of the Court observed that the interest awarded to the contractor could not in law be awarded. He pointed out that an arbitrator is not a court within the meaning of the Interest Act of 1839 : in any event interest could only be awarded if there was a debt or a sum certain, payable at a certain time or otherwise, by virtue of some written contract at a certain time and there must have been a demand in writing stating that interest will be claimed from the date of the demand. In the view of Bose, J. none of the elements was present and the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonableThe umpire has awarded interest to the respondent on the footing that for the purpose of carrying out his contract with the Government of India, the respondent was required to make arrangements by borrowing moneys from his bankers and he had to pay interest in that behalf, and when the contract was abandoned after it was partially performed, the Government of India became liable to make good the loss of interest which the respondent suffered. We know of no principle on which the Government of India could be rendered liable for payment of interest in the circumstances relied upon. In respect of that part of the contract which was abandoned, if any liability to pay interest had arisen it was for the respondent to claim it in settling the terms on which cancellation of the contract was to be made. In respect of the goods which had been returned by him, he could claim compensation for breach of warranty, but such compensation could not include interest as damages for detention of money. Interest was therefore allowed on a view of the law which appeared on the face of the award to be erroneous | 1 | 8,215 | 710 | ### 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:
contractor not covered by the contract Rs. 67, 000/- were found due by the Railway Company to the contractor on the basis of fair and reasonable rates. The contractor claimed interest on that amount for the period prior to the date of the suit. The Judicial Committee held that interest on the amount awarded as compensation could not be awarded by way of damages, and there being no contract, nor statute, nor usage in support of such a claim, the claim for interest had to be disallowedIn dealing with the claim for interest on the principle incorporated in illustration (n) of s. 73 of the Indian Contract Act which is as follows(n) "A, contracts to pay a sum of money to B, on a day specified. A, dose not pay the money on that day; B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally ruined. A, is not liable to make good to B, anything except the principle sum he contracted to pay, together with interest up to the day of payment."16. The Judicial Committee observed at p. 72"The illustration, however, does not deal with the right of a creditor to recover interest from his debtor on a loan advanced to the latter by the former. It only shows that if any person breaks his contract to pay to another person a sum of money on a specific date, and in consequence of that breach the latter is unable to pay his debts and is ruined, the former is not liable to make good to the latter anything except the principal sum which he promised to pay, together with interest up to the date of payment. The illustration does not confer upon a creditor a right to recover interest upon a debt which is due to him, when he is not entitled to such interest under any provision of the law. Nor can an illustration have the effect of modifying the language of the section which alone forms the enactment."17. Illustration (n) therefore does not aid the respondent18. Mr. Pathak submitted that interest may be awarded on grounds of equity, and placed reliance upon the Interest Act, 32 of 1839. Under that Act the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. The Act, however, contains a proviso that interest shall be payable in all cases in which it is now payable by law. This proviso applies to cases in which the Court of Equity exercises jurisdiction to allow interest. As observed by the Judicial Committee in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) after referring to the observation made by Lord Tomlin in Maine and New Brunswick Electrical Power Company v. Hart (1929 A.C. 631, 640.), observed"In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non- performance of a contract which equity can give specific performance. The present case does not, however, attract the equitable jurisdiction of the court and cannot come within the purview of the proviso19. The judgment of Their Lordships of the Privy Council in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) was relied upon in Seth Thawerdas Pherumals case (1955 2 S.C.R. 48.) in negativing a claim for interest. In that case a contractor had entered into a contract with the Dominion of India for supply of bricks. Under a clause which required that all disputes between the parties to the contract should be referred to arbitration, dispute having arisen, the matter was referred to arbitration and the arbitrator gave award in the contractors favour. The Union of India which had succeeded to the rights and obligations of the Dominion contested the award on numerous grounds one of which was the liability to pay interest on the amount awarded. Bose, J. in delivering judgment of the Court observed that the interest awarded to the contractor could not in law be awarded. He pointed out that an arbitrator is not a court within the meaning of the Interest Act of 1839 : in any event interest could only be awarded if there was a debt or a sum certain, payable at a certain time or otherwise, by virtue of some written contract at a certain time and there must have been a demand in writing stating that interest will be claimed from the date of the demand. In the view of Bose, J. none of the elements was present and the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonableThe umpire has awarded interest to the respondent on the footing that for the purpose of carrying out his contract with the Government of India, the respondent was required to make arrangements by borrowing moneys from his bankers and he had to pay interest in that behalf, and when the contract was abandoned after it was partially performed, the Government of India became liable to make good the loss of interest which the respondent suffered. We know of no principle on which the Government of India could be rendered liable for payment of interest in the circumstances relied upon. In respect of that part of the contract which was abandoned, if any liability to pay interest had arisen it was for the respondent to claim it in settling the terms on which cancellation of the contract was to be made. In respect of the goods which had been returned by him, he could claim compensation for breach of warranty, but such compensation could not include interest as damages for detention of money. Interest was therefore allowed on a view of the law which appeared on the face of the award to be erroneous20.
### Response:
1
### Explanation:
Mr. Pathak submitted that interest may be awarded on grounds of equity, and placed reliance upon the Interest Act, 32 of 1839. Under that Act the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. The Act, however, contains a proviso that interest shall be payable in all cases in which it is now payable by law. This proviso applies to cases in which the Court of Equity exercises jurisdiction to allow interest. As observed by the Judicial Committee in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) after referring to the observation made by Lord Tomlin in Maine and New Brunswick Electrical Power Company v. Hart (1929 A.C. 631, 640.), observed"In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non- performance of a contract which equity can give specific performance. The present case does not, however, attract the equitable jurisdiction of the court and cannot come within the purview of thejudgment of Their Lordships of the Privy Council in Bengal Nagpur Railway Companys case (1937 L.R. 65 I.A. 66.) was relied upon in Seth Thawerdas Pherumals case (1955 2 S.C.R. 48.) in negativing a claim for interest. In that case a contractor had entered into a contract with the Dominion of India for supply of bricks. Under a clause which required that all disputes between the parties to the contract should be referred to arbitration, dispute having arisen, the matter was referred to arbitration and the arbitrator gave award in the contractors favour. The Union of India which had succeeded to the rights and obligations of the Dominion contested the award on numerous grounds one of which was the liability to pay interest on the amount awarded. Bose, J. in delivering judgment of the Court observed that the interest awarded to the contractor could not in law be awarded. He pointed out that an arbitrator is not a court within the meaning of the Interest Act of 1839 : in any event interest could only be awarded if there was a debt or a sum certain, payable at a certain time or otherwise, by virtue of some written contract at a certain time and there must have been a demand in writing stating that interest will be claimed from the date of the demand. In the view of Bose, J. none of the elements was present and the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonableThe umpire has awarded interest to the respondent on the footing that for the purpose of carrying out his contract with the Government of India, the respondent was required to make arrangements by borrowing moneys from his bankers and he had to pay interest in that behalf, and when the contract was abandoned after it was partially performed, the Government of India became liable to make good the loss of interest which the respondent suffered. We know of no principle on which the Government of India could be rendered liable for payment of interest in the circumstances relied upon. In respect of that part of the contract which was abandoned, if any liability to pay interest had arisen it was for the respondent to claim it in settling the terms on which cancellation of the contract was to be made. In respect of the goods which had been returned by him, he could claim compensation for breach of warranty, but such compensation could not include interest as damages for detention of money. Interest was therefore allowed on a view of the law which appeared on the face of the award to be erroneous
|
STATE OF PUNJAB & OTHERS Vs. MEHAR DIN | may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (emphasis in original) 21. The exposition of law on the subject has been consistently followed by this Court even in the later decisions holding that superior Courts should not interfere in the matters of tenders, unless substantial public interest was involved or the transaction was malafide. It was consistently stressed by this Court that the need for overwhelming public interest should always be kept in mind to justify judicial intervention in contracts involving the State and its instrumentalities and while exercising power of judicial review in relation to contracts, the Courts should consider primarily the question whether there has been any infirmity in the decision-making process. 22. This view has been further considered by this Court in Jagdish Mandal v. State of Orissa and Others (2007) 14 SCC 517, wherein it was observed as under:- 22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold….. 23. This Court in a recent judgment in Silppi Constructions Contractors v. Union of India and another (2020) 16 SCC 489 held as under: 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case. 24. The law on the subject is settled that the Courts being the custodian of fundamental rights are under an obligation to interfere where there is arbitrariness, irrationality, unreasonableness, malafides and bias, if any, but at the same time, the Courts should exercise the power of judicial review with a lot of restraint, particularly in contractual and commercial matters. 25. Undisputedly, the provisional bid, in the instant case, was not confirmed by the competent authority (Sales Commissioner) and not being accepted after recording its due satisfaction by an order dated 2nd July, 1993 and the decision of the authority in passing the order of cancellation of the auction bid was scrutinized/examined by the appellate/revisional authority and the discretion exercised by the competent authority in taking decision of cancellation was upheld at later stages. 26. This being a settled law that the highest bidder has no vested right to have the auction concluded in his favour and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a Court of Appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal. 27. To the contrary, the limited scope of judicial review for which interference could have been permissible to prevent arbitrariness, irrationality, bias, malafides or perversity, if any, in the approach of the authority while dealing with the auction proceedings, was never the case of the respondent at any stage. The High Court has recorded a finding to the contrary that the appellants have failed to show any irregularity or illegality in the auction proceedings and in the absence whereof, the auction proceedings could not be held to be vitiated. The premise on which the High Court has proceeded in recording a finding, particularly, in the matters of auction of public properties is unsustainable in law and that apart, it is also not in conformity with the Scheme of auction of public properties as defined under Chapter III of Rules 1976. 28. In our considered view, the finding recorded by the High Court in the impugned judgment is unsustainable and deserves to be set aside. | 1[ds]15. It is not disputed that the auction sale conducted by the Tehsildar Sales on 4th June, 1993 was provisionally accepted in favour of the respondent being the highest bidder. Pursuant thereto, 1/5th of the bid amount as earnest money was deposited, but that acceptance being provisional, was subject to confirmation by the Sales Commissioner. When the proceedings of auction were placed for confirmation before the competent authority (Sales Commissioner), the competent authority after perusing the record of auction observed that the provisional bid is quite on the lower side and looking to the location of the property in question, it needs a good publicity to fetch the better sale price of the subject land and while cancelling the auction sale, directed to initiate the process of re-auction and further observed that he should be informed in advance and intended to remain present at the time of auction by order dated 2nd July, 1993. That apart, it is not disputed that total applicants were fourteen but only three bidders had participated in the bidding process.17. From the Scheme of Chapter III of Rules 1976, it is apparent and explicit that even if the public auction has been completed to the highest bidder, no right is accrued till the confirmation letter is issued to him as the acceptance of the highest bid is provisional, subject to its confirmation by the competent authority. Undisputedly, the competent authority (Sales Commissioner) has failed to confirm the bidding process and after recording its satisfaction cancelled the auction bid under its order dated 2nd July, 1993.18. This Court has examined right of the highest bidder at public auctions in umpteen number of cases and it was repeatedly pointed out that the State or authority which can be held to be State within the meaning of Article 12 of the Constitution, is not bound to accept the highest tender of bid. The acceptance of the highest bid or highest bidder is always subject to conditions of holding public auction and the right of the highest bidder is always provisional to be examined in the context in different conditions in which the auction has been held. In the present case, no right had accrued to the respondent even on the basis of statutory provisions as being contemplated under Rule 8(1)(h) of Chapter III of the Scheme of Rules, 1976 and in terms of the conditions of auction notice notified for public auction.20. In Tata Cellular v. Union of India(1994) 6 SCC 651 it was held that judicial review of government contracts is permissible in order to prevent arbitrariness or favouritism. It was fearlessly opined in this case as under:-94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.(emphasis in original)23. This Court in a recent judgment in Silppi Constructions Contractors v. Union of India and another (2020) 16 SCC 489 held as under:20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.24. The law on the subject is settled that the Courts being the custodian of fundamental rights are under an obligation to interfere where there is arbitrariness, irrationality, unreasonableness, malafides and bias, if any, but at the same time, the Courts should exercise the power of judicial review with a lot of restraint, particularly in contractual and commercial matters.25. Undisputedly, the provisional bid, in the instant case, was not confirmed by the competent authority (Sales Commissioner) and not being accepted after recording its due satisfaction by an order dated 2nd July, 1993 and the decision of the authority in passing the order of cancellation of the auction bid was scrutinized/examined by the appellate/revisional authority and the discretion exercised by the competent authority in taking decision of cancellation was upheld at later stages.26. This being a settled law that the highest bidder has no vested right to have the auction concluded in his favour and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a Court of Appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal.27. To the contrary, the limited scope of judicial review for which interference could have been permissible to prevent arbitrariness, irrationality, bias, malafides or perversity, if any, in the approach of the authority while dealing with the auction proceedings, was never the case of the respondent at any stage. The High Court has recorded a finding to the contrary that the appellants have failed to show any irregularity or illegality in the auction proceedings and in the absence whereof, the auction proceedings could not be held to be vitiated. The premise on which the High Court has proceeded in recording a finding, particularly, in the matters of auction of public properties is unsustainable in law and that apart, it is also not in conformity with the Scheme of auction of public properties as defined under Chapter III of Rules 1976.28. In our considered view, the finding recorded by the High Court in the impugned judgment is unsustainable and deserves to be set aside. | 1 | 4,105 | 1,403 | ### 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:
may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (emphasis in original) 21. The exposition of law on the subject has been consistently followed by this Court even in the later decisions holding that superior Courts should not interfere in the matters of tenders, unless substantial public interest was involved or the transaction was malafide. It was consistently stressed by this Court that the need for overwhelming public interest should always be kept in mind to justify judicial intervention in contracts involving the State and its instrumentalities and while exercising power of judicial review in relation to contracts, the Courts should consider primarily the question whether there has been any infirmity in the decision-making process. 22. This view has been further considered by this Court in Jagdish Mandal v. State of Orissa and Others (2007) 14 SCC 517, wherein it was observed as under:- 22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold….. 23. This Court in a recent judgment in Silppi Constructions Contractors v. Union of India and another (2020) 16 SCC 489 held as under: 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case. 24. The law on the subject is settled that the Courts being the custodian of fundamental rights are under an obligation to interfere where there is arbitrariness, irrationality, unreasonableness, malafides and bias, if any, but at the same time, the Courts should exercise the power of judicial review with a lot of restraint, particularly in contractual and commercial matters. 25. Undisputedly, the provisional bid, in the instant case, was not confirmed by the competent authority (Sales Commissioner) and not being accepted after recording its due satisfaction by an order dated 2nd July, 1993 and the decision of the authority in passing the order of cancellation of the auction bid was scrutinized/examined by the appellate/revisional authority and the discretion exercised by the competent authority in taking decision of cancellation was upheld at later stages. 26. This being a settled law that the highest bidder has no vested right to have the auction concluded in his favour and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a Court of Appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal. 27. To the contrary, the limited scope of judicial review for which interference could have been permissible to prevent arbitrariness, irrationality, bias, malafides or perversity, if any, in the approach of the authority while dealing with the auction proceedings, was never the case of the respondent at any stage. The High Court has recorded a finding to the contrary that the appellants have failed to show any irregularity or illegality in the auction proceedings and in the absence whereof, the auction proceedings could not be held to be vitiated. The premise on which the High Court has proceeded in recording a finding, particularly, in the matters of auction of public properties is unsustainable in law and that apart, it is also not in conformity with the Scheme of auction of public properties as defined under Chapter III of Rules 1976. 28. In our considered view, the finding recorded by the High Court in the impugned judgment is unsustainable and deserves to be set aside.
### Response:
1
### Explanation:
This Court has examined right of the highest bidder at public auctions in umpteen number of cases and it was repeatedly pointed out that the State or authority which can be held to be State within the meaning of Article 12 of the Constitution, is not bound to accept the highest tender of bid. The acceptance of the highest bid or highest bidder is always subject to conditions of holding public auction and the right of the highest bidder is always provisional to be examined in the context in different conditions in which the auction has been held. In the present case, no right had accrued to the respondent even on the basis of statutory provisions as being contemplated under Rule 8(1)(h) of Chapter III of the Scheme of Rules, 1976 and in terms of the conditions of auction notice notified for public auction.20. In Tata Cellular v. Union of India(1994) 6 SCC 651 it was held that judicial review of government contracts is permissible in order to prevent arbitrariness or favouritism. It was fearlessly opined in this case as under:-94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.(emphasis in original)23. This Court in a recent judgment in Silppi Constructions Contractors v. Union of India and another (2020) 16 SCC 489 held as under:20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.24. The law on the subject is settled that the Courts being the custodian of fundamental rights are under an obligation to interfere where there is arbitrariness, irrationality, unreasonableness, malafides and bias, if any, but at the same time, the Courts should exercise the power of judicial review with a lot of restraint, particularly in contractual and commercial matters.25. Undisputedly, the provisional bid, in the instant case, was not confirmed by the competent authority (Sales Commissioner) and not being accepted after recording its due satisfaction by an order dated 2nd July, 1993 and the decision of the authority in passing the order of cancellation of the auction bid was scrutinized/examined by the appellate/revisional authority and the discretion exercised by the competent authority in taking decision of cancellation was upheld at later stages.26. This being a settled law that the highest bidder has no vested right to have the auction concluded in his favour and in the given circumstances under the limited scope of judicial review under Article 226 of the Constitution, the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a Court of Appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal.27. To the contrary, the limited scope of judicial review for which interference could have been permissible to prevent arbitrariness, irrationality, bias, malafides or perversity, if any, in the approach of the authority while dealing with the auction proceedings, was never the case of the respondent at any stage. The High Court has recorded a finding to the contrary that the appellants have failed to show any irregularity or illegality in the auction proceedings and in the absence whereof, the auction proceedings could not be held to be vitiated. The premise on which the High Court has proceeded in recording a finding, particularly, in the matters of auction of public properties is unsustainable in law and that apart, it is also not in conformity with the Scheme of auction of public properties as defined under Chapter III of Rules 1976.28. In our considered view, the finding recorded by the High Court in the impugned judgment is unsustainable and deserves to be set aside.
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Shaikh Jabbar Vs. The State of Maharashtra | played the cards and lost Rs.50/- to Rs.60/-. Therefore, so far playing cards by the accused with this witness and other 3-4 persons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/- to Rs.60/- is denied by him in examination in cross. PW-17 in his cross examination stated that, PW-13 Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement by PW-13 before the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of PW-16 and PW-13 is considered and compared, so far presence of the accused and deceased is concerned, PW-16 in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence of PW-13 is perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the PW-16 and PW-13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that, PW-13 really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23. PW-11 was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement. PW-17 in his evidence stated that, PW-11 Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However, PW-11 has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence of PW-11 and also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recovery discovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of PW-4, PW-7, PW-11, PW-13 and PW-16 is considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence of PW-17 in his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e. PW-8 Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination of PW-8 would make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain. | 1[ds]20. The prosecution did examineJameer Khan Maheboobkhan Pathan to prove that, the deceased was lastly seen alive in the company of the accused till 7.45 p.m. on 14th September, 2010.in his examination in chief stated that, he know accused. On 14.09.2010 at about 7.30 to 7.45 p.m., he had seen the accused near brick kiln of Rahim Pathan. The brick kiln of Rahim Pathan is near about 20 to 25 feet away from their brick kiln. He heard sound of something lying in water of well, which is near about 20 feet away from brick kiln. On hearing sound, he went towards well. Accused was standing near by well. He asked accused as to what type of sound it was, he replied that, one stone fell in the well due to a push of his leg. Then, accused andreturned talking with each other towards their brick kiln. He further stated that, on next day, number of persons gathered near well. Then, he also went near well. Meanwhile Police also came. The dead body of one boy was taken out of well by Police. His both legs and hands were tied by thin rope i.e. Sutali. Then he came to know that, dead body is of Raju, son of accused. If the evidence of this witness is considered in its entirety, he had seen deceased in the company of the accused in between 7.30 to 7.45 p.m. The prosecution has not brought on record that, there was enough light so as to rule out the possibility of mistaken identify. According to this witness, he saw the accused near the brick kiln of Rahim Pathan, which is near aboutfeet away from their brick kiln. However, nowhere he stated that, he saw deceased Raju with the accused. As per the prosecution case, the deceased was seen lastly in the company of the accused on 14th September, 2010, and thereafter, dead body was recovered on 16th September, 2010. However, according tohe had seen the accused on 14th September, 2010, at about 7.30 to 7.45 p.m. and on next day, number of persons gathered near well and dead body of one boy was taken out from the well on 15th September, 2010. Said version of theis not consistent with the prosecution case that, the dead body was found and taken out from the well on 16th September, 2010.During the cross examination ofhe admitted that, he does not remember exact day of withdrawing the dead body from well but it was next day of his meeting with accused. Though this witness has stated in his cross examination that, he stated to the police that, accused was seen by him at 7.30 to 7.45 p.m., and he had seen the accused near brick kiln of Rahim Pathan, and said brick kiln is 20 feet away from their brick kiln, and after hearing sound, he went towards well and accused stated that, a stone fell in the well. He could not assign any reason as to why all these details were not written in his statement. Again in this respect, it would be relevant to see the evidence of7 in his cross examination stated that,Jameer has not specifically stated before him that, business of selling bricks is looked after by him as well as hisHe had seen accused at 7.30 to 7.45 p.m. near brick kiln of Rahim Pathan, which is 20 feet away from their brick kiln. After hearing sound, he went towards well. On his query, accused replied that, a stone fell in the well due to a push of his leg. Therefore, if the evidence ofis considered in its entirety, no reliance can be placed on his evidence to accept the prosecution case that, the deceased Raju was seen in the company of the accused on 14th September, 2010 in between 7.30 to 7.45 p.m.21. The prosecution further examinedso as to prove the circumstance that, deceased Raju was last seen in the company of the accused on 14th September, 2010, in between 6.30 to 6.45 p.m.in his evidence stated that, he know accused. On 14.09.2010, he was on his brick kiln at about 6.30 to 6.45 p.m. At that time, he saw accused along with his son Raju, were going towards brick kiln of one wahab. There is a well near brick kiln of Rahim Pathan. At the relevant time, he sawpersons were playing cards near brick kiln. They were playing cards on open space in between two brick kilns. On next day, he came to know that, Raju died by drowning in a well. If the evidence of this witness is carefully perused, he saw deceased Raju in the company of accused on 14th September, 2010, in between 6.30 to 6.45 p.m. However, he further stated that, on next day i.e. on 15th September 2010, he came to know that, Raju died by drowning in a well. The version ofthat, on next day i.e. on 15th September, 2010, he came to know that, Raju died due to drowning, is inconsistent with the prosecution story inasmuch as, as per prosecution case, the dead body of Raju was found in a well on 16th September, 2010. In his cross examination, he stated that, he stated before the police that,persons were playing cards near the brick kiln of Rahim Khan. However, he cannot assign reasons why said fact has not written specifically by police in his statement. If the evidence ofInvestigation Officer is perused,Hakeem Qureshi never stated specifically before him that, adjoining brick kiln was of Wahab, that he was at his brick kiln on 14.09.2010 at about 6.30 to 6.45 p.m., and saw the accused from that place, andpersons were playing cards near the brick kiln of Raheem Khan. Therefore, it appears that,has improved his version before the Court and the said improvement is material. Therefore, the evidence ofcannot be believed.22. The prosecution further examinedNaser Sherkhan Pathan so as to prove that, deceased Raju was seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. In his examination in chief, he stated that, on 14th September, 2010, near aboutmonths back, on Monday at about 6.00 to 6.30 p.m., he himself andpersons were playing cards. At that time accused along with his son had been to them. At that time, they were playing cards near brick kiln of his brother. Accused was in drunken condition. When he asked why he has brought his son, he replied that, his son insisted to take with him and he was crying, therefore, he brought him. He has also participated and played cards with them. He lost Rs.50/ai came at the said place at 6.45 p.m. Then they stopped playing. They all went away and accused with his son stayed there. However, in his cross examination, he stated that, Hakimbhai had come at about 6.45 p.m. Accused stayed there along with his son. However, he cannot assign any reason why said version is not appearing in his statement. He further stated in his cross examination that, it is not true to say that, on 14th day of 2010 accused along with his son had been to them, he played the cards and lost Rs.50/. Therefore, so far playing cards by the accused with this witness and otherpersons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/is denied by him in examination in cross.in his cross examination stated that,Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement bybefore the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of13 is considered and compared, so far presence of the accused and deceased is concerned,in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence ofis perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that,really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23.was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement.in his evidence stated that,Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However,has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence ofand also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recoverydiscovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of3 andis considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence ofin his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e.Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination ofwould make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain. | 1 | 6,963 | 2,443 | ### 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:
played the cards and lost Rs.50/- to Rs.60/-. Therefore, so far playing cards by the accused with this witness and other 3-4 persons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/- to Rs.60/- is denied by him in examination in cross. PW-17 in his cross examination stated that, PW-13 Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement by PW-13 before the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of PW-16 and PW-13 is considered and compared, so far presence of the accused and deceased is concerned, PW-16 in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence of PW-13 is perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the PW-16 and PW-13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that, PW-13 really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23. PW-11 was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement. PW-17 in his evidence stated that, PW-11 Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However, PW-11 has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence of PW-11 and also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recovery discovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of PW-4, PW-7, PW-11, PW-13 and PW-16 is considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence of PW-17 in his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e. PW-8 Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination of PW-8 would make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain.
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with his son. However, he cannot assign any reason why said version is not appearing in his statement. He further stated in his cross examination that, it is not true to say that, on 14th day of 2010 accused along with his son had been to them, he played the cards and lost Rs.50/. Therefore, so far playing cards by the accused with this witness and otherpersons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/is denied by him in examination in cross.in his cross examination stated that,Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement bybefore the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of13 is considered and compared, so far presence of the accused and deceased is concerned,in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence ofis perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that,really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23.was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement.in his evidence stated that,Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However,has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence ofand also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recoverydiscovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of3 andis considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence ofin his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e.Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination ofwould make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain.
|
Noorjahan Vs. Sultan Rajia | that there was a divergence of opinion on the question whether in a situation as the present one, the deceased could be said to be a passenger in the bus. Examining the provisions of Section 95(1) of the Act, the High Court observed that the liability arising out of an event leading to injury or death of a person alighting from a bus, as in the present case, was necessarily to be covered by the insurance policy, the victims of such accidents were passengers for whom the liability of the Insurance Company at the relevant time was limited to only Rs. 10, 000 6. It will be proper here to extra the relevant part of Section 95(1) of the Act. 95 Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of Insurance must be a policy which - (a) * * * (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in public place Provided that a policy shall not be required - (i) * * * (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death or a bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or(iii) * * * The High Court rightly interpreted the proviso (ii) extracted above to mean that the liability in respect of death or injury to persons alighting from the vehicle at the time of the accident need not be covered except where the vehicle is vehicle in which the passengers are carried for hire or reward by reason of or in pursuance of a contract of employment. In other words, where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or pursuant to a contract of employment, giving rise to the above liability arising out of an accident, the vehicle has necessarily to be covered. It can be seen that the provision is an exception to Section 95(1). As per sub-section (b) the insurance policy must insure the persons specified in the policy against (i) any liability to person or property of a third party, and (ii) against death or personal injury to any passenger of a public service vehicle. The liability in respect of those suffering personal injury while getting into or alighting from the vehicle need not be covered if the vehicle is not one in which the passengers are carried for hire reward. But a in the present case, the vehicle is one that carries passengers for hire or reward, the liability for personal injury or death caused while getting into or alighting from the vehicle would be required to be covered by the policy. In other words, such people who suffer injury or die while alighting from the vehicle are to be covered by the general rule that the insurance policy for a public service vehicle should cover the liability against the death of or bodily injury to any passenger of such a vehicle. 7. It is a clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The limit at the relevant time was Rs. 10, 000. 8. The High Court has referred to a few decisions of the very same court wherein contradictory views have been expressed. We do not consider it necessary to restate those cases because in our view the language of the statute is clear. Section 95(1)(b) makes it clear that a policy of insurance shall not be required to cover liability in respect of death or bodily injury to persons boarding or alighting from a motor vehicle but clause (ii) of the proviso thereto engrafts an exception and says that where the vehicle is one in which passengers carried for hire or reward or by reason of or in pursuance of a contract of employment, it shall be necessary to cover liability in relation to persons carried in or upon such vehicle which would include cases of death or bodily injury caused while entering or mounting or alighting from such vehicle. The words alighting from the vehicle are plain and simple and clearly mean while getting down from the vehicle. Therefore, if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to the coverage, no doubt within the limit of liability fixed under the statute at the relevant point of time. It must be remembered that this was a beneficial provision engrafted by way of an exception to provide an insurance cover to passengers. 9. It is interesting to observe that in the new Motor Vehicles Act, 1988, the proviso on which our interpretation rests has been omitted. For our purpose, since the accident took place in 1982, the old Act has to be applied. | 0[ds]The High Court rightly interpreted the proviso (ii) extracted above to mean that the liability in respect of death or injury to persons alighting from the vehicle at the time of the accident need not be covered except where the vehicle is vehicle in which the passengers are carried for hire or reward by reason of or in pursuance of a contract of employment. In other words, where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or pursuant to a contract of employment, giving rise to the above liability arising out of an accident, the vehicle has necessarily to be covered. It can be seen that the provision is an exception to Section 95(1). As per sub-section (b) the insurance policy must insure the persons specified in the policy against (i) any liability to person or property of a third party, and (ii) against death or personal injury to any passenger of a public service vehicle. The liability in respect of those suffering personal injury while getting into or alighting from the vehicle need not be covered if the vehicle is not one in which the passengers are carried for hire reward. But a in the present case, the vehicle is one that carries passengers for hire or reward, the liability for personal injury or death caused while getting into or alighting from the vehicle would be required to be covered by the policy. In other words, such people who suffer injury or die while alighting from the vehicle are to be covered by the general rule that the insurance policy for a public service vehicle should cover the liability against the death of or bodily injury to any passenger of such a vehicle7. It is a clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The limit at the relevant time was Rs. 10, 0008. The High Court has referred to a few decisions of the very same court wherein contradictory views have been expressed. We do not consider it necessary to restate those cases because in our view the language of the statute is clear. Section 95(1)(b) makes it clear that a policy of insurance shall not be required to cover liability in respect of death or bodily injury to persons boarding or alighting from a motor vehicle but clause (ii) of the proviso thereto engrafts an exception and says that where the vehicle is one in which passengers carried for hire or reward or by reason of or in pursuance of a contract of employment, it shall be necessary to cover liability in relation to persons carried in or upon such vehicle which would include cases of death or bodily injury caused while entering or mounting or alighting from such vehicle. The words alighting from the vehicle are plain and simple and clearly mean while getting down from the vehicle. Therefore, if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to the coverage, no doubt within the limit of liability fixed under the statute at the relevant point of time. It must be remembered that this was a beneficial provision engrafted by way of an exception to provide an insurance cover to passengers9. It is interesting to observe that in the new Motor Vehicles Act, 1988, the proviso on which our interpretation rests has been omitted. For our purpose, since the accident took place in 1982, the old Act has to be applied. | 0 | 1,534 | 741 | ### 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:
that there was a divergence of opinion on the question whether in a situation as the present one, the deceased could be said to be a passenger in the bus. Examining the provisions of Section 95(1) of the Act, the High Court observed that the liability arising out of an event leading to injury or death of a person alighting from a bus, as in the present case, was necessarily to be covered by the insurance policy, the victims of such accidents were passengers for whom the liability of the Insurance Company at the relevant time was limited to only Rs. 10, 000 6. It will be proper here to extra the relevant part of Section 95(1) of the Act. 95 Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of Insurance must be a policy which - (a) * * * (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in public place Provided that a policy shall not be required - (i) * * * (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death or a bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or(iii) * * * The High Court rightly interpreted the proviso (ii) extracted above to mean that the liability in respect of death or injury to persons alighting from the vehicle at the time of the accident need not be covered except where the vehicle is vehicle in which the passengers are carried for hire or reward by reason of or in pursuance of a contract of employment. In other words, where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or pursuant to a contract of employment, giving rise to the above liability arising out of an accident, the vehicle has necessarily to be covered. It can be seen that the provision is an exception to Section 95(1). As per sub-section (b) the insurance policy must insure the persons specified in the policy against (i) any liability to person or property of a third party, and (ii) against death or personal injury to any passenger of a public service vehicle. The liability in respect of those suffering personal injury while getting into or alighting from the vehicle need not be covered if the vehicle is not one in which the passengers are carried for hire reward. But a in the present case, the vehicle is one that carries passengers for hire or reward, the liability for personal injury or death caused while getting into or alighting from the vehicle would be required to be covered by the policy. In other words, such people who suffer injury or die while alighting from the vehicle are to be covered by the general rule that the insurance policy for a public service vehicle should cover the liability against the death of or bodily injury to any passenger of such a vehicle. 7. It is a clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The limit at the relevant time was Rs. 10, 000. 8. The High Court has referred to a few decisions of the very same court wherein contradictory views have been expressed. We do not consider it necessary to restate those cases because in our view the language of the statute is clear. Section 95(1)(b) makes it clear that a policy of insurance shall not be required to cover liability in respect of death or bodily injury to persons boarding or alighting from a motor vehicle but clause (ii) of the proviso thereto engrafts an exception and says that where the vehicle is one in which passengers carried for hire or reward or by reason of or in pursuance of a contract of employment, it shall be necessary to cover liability in relation to persons carried in or upon such vehicle which would include cases of death or bodily injury caused while entering or mounting or alighting from such vehicle. The words alighting from the vehicle are plain and simple and clearly mean while getting down from the vehicle. Therefore, if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to the coverage, no doubt within the limit of liability fixed under the statute at the relevant point of time. It must be remembered that this was a beneficial provision engrafted by way of an exception to provide an insurance cover to passengers. 9. It is interesting to observe that in the new Motor Vehicles Act, 1988, the proviso on which our interpretation rests has been omitted. For our purpose, since the accident took place in 1982, the old Act has to be applied.
### Response:
0
### Explanation:
The High Court rightly interpreted the proviso (ii) extracted above to mean that the liability in respect of death or injury to persons alighting from the vehicle at the time of the accident need not be covered except where the vehicle is vehicle in which the passengers are carried for hire or reward by reason of or in pursuance of a contract of employment. In other words, where the vehicle is a vehicle in which the passengers are carried for hire or reward or by reason of or pursuant to a contract of employment, giving rise to the above liability arising out of an accident, the vehicle has necessarily to be covered. It can be seen that the provision is an exception to Section 95(1). As per sub-section (b) the insurance policy must insure the persons specified in the policy against (i) any liability to person or property of a third party, and (ii) against death or personal injury to any passenger of a public service vehicle. The liability in respect of those suffering personal injury while getting into or alighting from the vehicle need not be covered if the vehicle is not one in which the passengers are carried for hire reward. But a in the present case, the vehicle is one that carries passengers for hire or reward, the liability for personal injury or death caused while getting into or alighting from the vehicle would be required to be covered by the policy. In other words, such people who suffer injury or die while alighting from the vehicle are to be covered by the general rule that the insurance policy for a public service vehicle should cover the liability against the death of or bodily injury to any passenger of such a vehicle7. It is a clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The limit at the relevant time was Rs. 10, 0008. The High Court has referred to a few decisions of the very same court wherein contradictory views have been expressed. We do not consider it necessary to restate those cases because in our view the language of the statute is clear. Section 95(1)(b) makes it clear that a policy of insurance shall not be required to cover liability in respect of death or bodily injury to persons boarding or alighting from a motor vehicle but clause (ii) of the proviso thereto engrafts an exception and says that where the vehicle is one in which passengers carried for hire or reward or by reason of or in pursuance of a contract of employment, it shall be necessary to cover liability in relation to persons carried in or upon such vehicle which would include cases of death or bodily injury caused while entering or mounting or alighting from such vehicle. The words alighting from the vehicle are plain and simple and clearly mean while getting down from the vehicle. Therefore, if a person is still in the process of boarding or alighting from the vehicle, such person would be entitled to the coverage, no doubt within the limit of liability fixed under the statute at the relevant point of time. It must be remembered that this was a beneficial provision engrafted by way of an exception to provide an insurance cover to passengers9. It is interesting to observe that in the new Motor Vehicles Act, 1988, the proviso on which our interpretation rests has been omitted. For our purpose, since the accident took place in 1982, the old Act has to be applied.
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The State of Andhra Pradesh Vs. Madiga Boosenna & Others | any arrack, the prosecution should have got the commodity examined, by a Chemical Examiner, and, inasmuch as that procedure has not been adopted, the High Court ultimately, set aside the conviction of the respondents. 6. On behalf of the appellant State, Mr. Ram Reddy urged that, in the case, in-asmuch as the prosecution has let in the evidence of the Prohibition Inspector and the petty officer, who must be considered to be well aware of arrack, the High Court was not justified in interfering with the decisions of the subordinate Courts. Counsel has also pointed out that the prosecution witnesses have spoken to the fact that the contents of the tins were examined, by being pierced with bayonet ends and it is, after such examination, the Prohibition Sub-Inspector satisfied himself that the tins contained arrack.7. There is no appearance, on behalf of the respondents, before us, in this Court. 8. This will be a convenient stage to refer to the relevant provisions of the Act. Section 3 defines certain expressions. Intoxicating drug is defined, under S. 3 (3), and S. 3 (9) defines liquor under which the commodity in question, is stated to fall. Liquor includes toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol. Under S. 4 (1) (a), whoever imports, exports, transports or possesses liquor or any intoxicating drug, shall be punished with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. In this case, according to the prosecution, the respondents had transported liquor. The expression liquor, as mentioned earlier, is defined under S. 3 (9). The prosecution will therefore have to establish that the commodity in question comes under one or other of the various items referred to in the definition of liquor. The question is whether the prosecution has so established, in this case. 9. In our opinion, in the circumstances of this case, the High Court was perfectly justified in holding that the prosecution has not established that the respondents are guilty of an offence, under S. 4 (1) (a) of the Act. It is needless to state that, in this case unless the prosecution proves the contravention of the provisions of the Act, in question, it cannot succeed in establishing the guilt of the accused. For that purpose the prosecution will have to establish two things: (i) that the article seized from the accused is liquor. under S. 3 (9) of the Act : and (ii) that the accused transported the same. 10. Except for a general statement, contained in the evidence of the witnesses, particularly P. Ws. 1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction, on an opinion expressed by those officers under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof, by a technical person who has considered the matter from a scientific point of view is not only desirable, but even necessary, to establish that the article seized is one coming within the definition of liquor. 11. Mr. Ram Reddy, learned counsel for the State, no doubt pointed out that the accused have not challenged effectively the answers given by the prosecution witnesses that the commodity is arrack. In our opinion, the circumstances, pointed out by the learned counsel, will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction of the respondents. Even otherwise, it will have to be noted that all of them have, categorically, denied the offence and have also stated, in general terms, that no arrack was seized from them. 12. Before we close the discussion, it is necessary to refer to a recent decision of this Court in Baidyanath Mishra v. State of Orissa, Cri App. No. 270 of 1964, D/-17-4-1964 (SC). In that case, the question was as to whether the appellants, therein, were in possession of opium, so as to make them liable for an offence. The Opium Act of 1878, defines the expression opium. The appellants contended that the article seized from them was not opium, as defined in that Act, and pointed out that the only evidence, relied on by the prosecution, to establish that the article recovered from them was opium, was the evidence of the Prohibition staff, and that the article has not been subjected to any chemical analysis. This Court rejected that contention in the particular circumstances of the case, and stated:"It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary ................. Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the appellants, who themselves were licensed vendors of opium, had the slightest doubt about the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the court that the substance be analysed to determine whether it was opium or not." These observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been no chemical analysis made of the commodity, which according to the prosecution, was opium. The facts in the instant case before us, are entirely different. and the observations, extracted above do not apply. | 0[ds]In this case, according to the prosecution, the respondents had transported liquor. The expression liquor, as mentioned earlier, is defined under S. 3 (9). The prosecution will therefore have to establish that the commodity in question comes under one or other of the various items referred to in the definition of liquor9. In our opinion, in the circumstances of this case, the High Court was perfectly justified in holding that the prosecution has not established that the respondents are guilty of an offence, under S. 4 (1) (a) of the Act. It is needless to state that, in this case unless the prosecution proves the contravention of the provisions of the Act, in question, it cannot succeed in establishing the guilt of the accused. For that purpose the prosecution will have to establish two things: (i) that the article seized from the accused is liquor. under S. 3 (9) of the Act : and (ii) that the accused transported the same10. Except for a general statement, contained in the evidence of the witnesses, particularly P. Ws. 1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction, on an opinion expressed by those officers under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof, by a technical person who has considered the matter from a scientific point of view is not only desirable, but even necessary, to establish that the article seized is one coming within the definition of liquor.In our opinion, the circumstances, pointed out by the learned counsel, will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction of the respondents. Even otherwise, it will have to be noted that all of them have, categorically, denied the offence and have also stated, in general terms, that no arrack was seized from themThese observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been no chemical analysis made of the commodity, which according to the prosecution, was opium. The facts in the instant case before us, are entirely different. and the observations, extracted above do not apply. | 0 | 2,077 | 481 | ### 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:
any arrack, the prosecution should have got the commodity examined, by a Chemical Examiner, and, inasmuch as that procedure has not been adopted, the High Court ultimately, set aside the conviction of the respondents. 6. On behalf of the appellant State, Mr. Ram Reddy urged that, in the case, in-asmuch as the prosecution has let in the evidence of the Prohibition Inspector and the petty officer, who must be considered to be well aware of arrack, the High Court was not justified in interfering with the decisions of the subordinate Courts. Counsel has also pointed out that the prosecution witnesses have spoken to the fact that the contents of the tins were examined, by being pierced with bayonet ends and it is, after such examination, the Prohibition Sub-Inspector satisfied himself that the tins contained arrack.7. There is no appearance, on behalf of the respondents, before us, in this Court. 8. This will be a convenient stage to refer to the relevant provisions of the Act. Section 3 defines certain expressions. Intoxicating drug is defined, under S. 3 (3), and S. 3 (9) defines liquor under which the commodity in question, is stated to fall. Liquor includes toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol. Under S. 4 (1) (a), whoever imports, exports, transports or possesses liquor or any intoxicating drug, shall be punished with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. In this case, according to the prosecution, the respondents had transported liquor. The expression liquor, as mentioned earlier, is defined under S. 3 (9). The prosecution will therefore have to establish that the commodity in question comes under one or other of the various items referred to in the definition of liquor. The question is whether the prosecution has so established, in this case. 9. In our opinion, in the circumstances of this case, the High Court was perfectly justified in holding that the prosecution has not established that the respondents are guilty of an offence, under S. 4 (1) (a) of the Act. It is needless to state that, in this case unless the prosecution proves the contravention of the provisions of the Act, in question, it cannot succeed in establishing the guilt of the accused. For that purpose the prosecution will have to establish two things: (i) that the article seized from the accused is liquor. under S. 3 (9) of the Act : and (ii) that the accused transported the same. 10. Except for a general statement, contained in the evidence of the witnesses, particularly P. Ws. 1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction, on an opinion expressed by those officers under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof, by a technical person who has considered the matter from a scientific point of view is not only desirable, but even necessary, to establish that the article seized is one coming within the definition of liquor. 11. Mr. Ram Reddy, learned counsel for the State, no doubt pointed out that the accused have not challenged effectively the answers given by the prosecution witnesses that the commodity is arrack. In our opinion, the circumstances, pointed out by the learned counsel, will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction of the respondents. Even otherwise, it will have to be noted that all of them have, categorically, denied the offence and have also stated, in general terms, that no arrack was seized from them. 12. Before we close the discussion, it is necessary to refer to a recent decision of this Court in Baidyanath Mishra v. State of Orissa, Cri App. No. 270 of 1964, D/-17-4-1964 (SC). In that case, the question was as to whether the appellants, therein, were in possession of opium, so as to make them liable for an offence. The Opium Act of 1878, defines the expression opium. The appellants contended that the article seized from them was not opium, as defined in that Act, and pointed out that the only evidence, relied on by the prosecution, to establish that the article recovered from them was opium, was the evidence of the Prohibition staff, and that the article has not been subjected to any chemical analysis. This Court rejected that contention in the particular circumstances of the case, and stated:"It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that a chemical analysis may be necessary ................. Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the appellants, who themselves were licensed vendors of opium, had the slightest doubt about the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the court that the substance be analysed to determine whether it was opium or not." These observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been no chemical analysis made of the commodity, which according to the prosecution, was opium. The facts in the instant case before us, are entirely different. and the observations, extracted above do not apply.
### Response:
0
### Explanation:
In this case, according to the prosecution, the respondents had transported liquor. The expression liquor, as mentioned earlier, is defined under S. 3 (9). The prosecution will therefore have to establish that the commodity in question comes under one or other of the various items referred to in the definition of liquor9. In our opinion, in the circumstances of this case, the High Court was perfectly justified in holding that the prosecution has not established that the respondents are guilty of an offence, under S. 4 (1) (a) of the Act. It is needless to state that, in this case unless the prosecution proves the contravention of the provisions of the Act, in question, it cannot succeed in establishing the guilt of the accused. For that purpose the prosecution will have to establish two things: (i) that the article seized from the accused is liquor. under S. 3 (9) of the Act : and (ii) that the accused transported the same10. Except for a general statement, contained in the evidence of the witnesses, particularly P. Ws. 1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction, on an opinion expressed by those officers under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof, by a technical person who has considered the matter from a scientific point of view is not only desirable, but even necessary, to establish that the article seized is one coming within the definition of liquor.In our opinion, the circumstances, pointed out by the learned counsel, will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction of the respondents. Even otherwise, it will have to be noted that all of them have, categorically, denied the offence and have also stated, in general terms, that no arrack was seized from themThese observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been no chemical analysis made of the commodity, which according to the prosecution, was opium. The facts in the instant case before us, are entirely different. and the observations, extracted above do not apply.
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Commissioner of Central Excise, Raipur Vs. M/s Sepco Electric Power Construction Corporation | the Ad between the provider of a service, who is an individual, a partnership concern or an incorporated company. The liability to pay tax on the service provided falls uniformly on all the three, provided the service is of a kind that has been declared taxable under section 65(48) of the Ad. Viewed thus, what is taxed by the Act in the case of service provided by consultant engineers is the service provided directly or indirectly in the nature of advice, consultancy or technical assistance in any manner and relating to any disciplines of engineering. The fad that the service is provided by an individual or a partnership or by a company is wholly inconsequential. It is true that inclusion in the definition of the expression consulting engineer could indude a company to set the entire controversy at rest, but the very fad that a company providing a technical assistance in any engineering discipline is not specifically included in the definition of the expression consulting engineer would not, ipso facto, mean that service rendered by any such company cannot be considered to be taxable. It is fairly well-settled that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the court is entitled to put upon it a construction which modifies the meaning of the words used in the same. 28. The decision in Dr. V. Shanmughavel, [2001] 131 ELT 14 (Mad) may not help us much since in that case the distinction was sought to be made as to whether the services rendered by a valuer or by an engineer would come within the definition of consulting engineer or not. Though some other decisions have since been cited by Dr. Pal, but we do not find any reason to discuss the same, since, in our view, any further discussion would be superfluous. Conclusion: 29. Thus, the circular dated July 2, 1997, issued by the Ministry of Finance and the said circular dated July 3, 1997, cannot be held to be contrary to the provisions of the statute or inconsistent with the scheme and the context of the service tax law or repugnant to the clear legislative provisions defining consulting engineer under section 65(13). Having regard to the discussion made above, it cannot be said that the said circular was issued in excess of the parameters limited by the legislation delegating the power. It is well within the parameters and, therefore, can never be ultra vires the parent Act or void. Therefore, the ratio decided in G.S. Dali and Flour Mills, [1991] 187 ITR 478 (SC) cannot be attracted. Since it is well within the enactment, it is not a case that a tax is being imposed by reason of the said two circulars on the company though not liable through subordinate legislation without being authorised by the parent Act as was held in Gopal Narain, AIR 1964 SC 370 . 30. From the discussion above, we are of the view that the word firm used in the definition of consulting engineer interpreted in the context and the scheme of section 65 in consonance with section 66 and section 68 and the meaning conferred to the word firm elsewhere in the statute includes a company as explained in section 81 since there is nothing to support an intelligible differentia or a rational classification between a company and a firm providing taxable service defined under section 65(48)(g) to exclude a company from the tax net when both providing the same taxable service being the taxable event in a statute, which is not meant for providing special provisions for or benefit to a company. 10.4 At this stage, it is required to be noted that all the decisions of some of the High Courts relied upon on behalf of the respondent are of post amendment 2005. In none of the cases, the respective High Courts had an occasion to consider the actual meaning and definition of consulting engineer contained in Finance Act, 1994, which directly fell for consideration before the Karnataka and Calcutta High Courts in the cases of TCS (supra) and M.N. Dastur (supra). 11. As observed hereinabove, in many places under the Finance Act, 1994, the Parliament/Legislature has used the word person (Sections 68, 69 and 70). At this stage, Section 3(42) of the General Clauses Act, 1897 is also required to be referred to, considered and applied. The word person includes any company or association or body of individuals, whether incorporated or not. Therefore, there is no logic and/or reason to exclude a body corporate from the definition of consulting engineer and to exclude the services of a consulting engineer rendered by a body corporate to exclude and/or exempt from the service tax net. Such an interpretation would lead to anomaly and absurdity. As observed hereinabove, it will create two different classes providing the same services which could not be the intention of the Parliament/Legislature. Therefore, we are in complete agreement with the view taken by the High Court of Karnataka in the case of TCS (supra) and the Calcutta High Court in the case of M.N. Dastur (supra), taking the view that a firm and a company can be said to be a consulting engineer as defined under the Finance Act, 1994 and liable to pay the service tax as a service provider. 12. In view of our above finding that under the Finance Act, 1994, in the definition of consulting engineer, a body corporate is included and/or to be read into so as to bring a body corporate being a service provider providing the consultancy engineering services within the service tax net, as such, it is not necessary to consider whether the subsequent amendment amending the definition of consulting engineer by way of 2005 amendment adding a body corporate within the definition of consulting engineer would be retrospective and/or whether it can be said to be a clarificatory in nature or not and the said issue would become academic now. | 0[ds]5.1 At this stage, it is required to be noted that post 2005, the definition of consulting engineer under Section 65(31) has been amended and now it specifically includes a body corporate. Therefore, as such, with respect to the proceedings post amendment 2005, there will be no difficulty. After the amendment, any body corporate, a service provider providing the services as consulting engineer is liable to pay the service tax.8. If the submission on behalf of the respondent is accepted, in that case, it would remove all companies providing technical services, advice or consultancy to their clients from the service tax net, while any such services rendered by an individual or a partnership firm would continue to remain taxable. That does not seem to be an intention on the part of the legislature to exclude the body corporate from the definition of consulting engineer. There does not seem to be any logic to exclude body corporate from the definition of consulting engineer. If the submission on behalf of the respondent is accepted and the body corporate is excluded from the service tax, in that case, it would not only lead to absurdity but also would create two different classes providing the same services. That cannot be the intention of the legislature to create two separate classes providing the same services and to exclude one class.8.1 In the case of K.P. Varghese (supra), it is observed and held by this Court that the statutory provision must be so construed, if possible, that absurdity and mischief may be avoided.8.2 In the case of Commissioner of Income Tax, Bangalore v. J.H. Gotla, Yadagiri, (1985) 4 SCC 343, this Court has observed and held in paragraph 46 as under:46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning.8.3 In the case of Dilip Kumar and Company (supra), a Constitution Bench of this Court observed and held as under:i) In interpreting a taxing statute, equitable considerations are entirely out of place;ii) a taxing statute cannot be interpreted on any presumption or assumption;iii) a taxing statute has to be interpreted in the light of what is clearly expressed;iv) it cannot imply anything which is not expressed;It is further observed and held that:v) the plain meaning rule suggests that when the language in the statute is plain and unambiguous, the court has to read and understand the plain language as such, and there is no scope for any interpretation;vi) the principle of literal interpretation and the principle of strict interpretation are sometimes used interchangeably, however, this principle, may not be sustainable in all contexts and situations;vii) though all cases of literal interpretation would involve strict rule of interpretation, but the strict rule may not necessarily involve the former, especially in the area of taxation;viii) while interpreting a statutory law, if any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on the General Clauses Act;ix) An Act of Parliament/Legislature cannot foresee all types of situations and all types of consequences. It is for the court to see whether a particular case falls within the broad principles of law enacted by the Legislature;x) In all the Acts and Regulations, made either by Parliament or Legislature, the words and phrases as defined in the General Clauses Act and the principles of interpretation laid down in the General Clauses Act are to be necessarily kept in view;xi) the purpose of interpretation is essentially to know the intention of the Legislature. Whether the Legislature intended to apply the law in a given case; whether the Legislature intended to exclude operation of law in a given case; whether the Legislature intended to give discretion to enforcing authority or to adjudicating agency to apply the law, are essentially questions to which answers can be sought only by knowing the intention of the legislation;xii) a statute must be construed according to the intention of the Legislature and the courts should act upon the true intention of the legislation while applying law and while interpreting law. If a statutory provision is open to more than one meaning, the Court has to choose the interpretation which represents the intention of the Legislature;xiii) if the plain language results in absurdity, the court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose. Not only that, if the plain construction leads to anomaly and absurdity, the court having regard to the hardship and consequences that flow from such a provision can even explain the true intention of the legislation; andxiv) the principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee does not apply to the construction of an exception or an exempting provision, they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State.9. Applying the law laid down by this Court in the aforesaid decisions on law of interpretation of a taxing statute, it is required to be considered, whether a body corporate was excluded from the service tax net under the Finance Act, 1994.From the aforesaid, it can be seen that it was never the intention of the legislation to exclude a body corporate from the definition of consulting engineer and from the service tax net.10.1 At this stage, it is required to be noted that during the Finance Act, 1994 regime and prior to amendment 2005, the definition of consulting engineer applicable under the Finance Act, 1994 fell for consideration before the High Courts of Karnataka and Calcutta in the cases of TCS(supra) and M.N. Dastur (supra). In both the aforesaid cases, the respective High Courts had an occasion to consider in detail the definition of the term consulting engineer.10.2 In the case of TCS (supra), it was the case on behalf of the TCS that it was not liable to either recover or deposit any tax as it was not providing a taxable service within the meaning of Section 65(41) of Chapter V of the Finance Act, as amended from time to time. It was contended that service provided by a consulting engineer in relation to advice, consultancy or technical assistance in any discipline of engineering was taxable only if such services were provided by a consulting engineer as defined in Section 65(31) of the Finance Act. According to the TCS, service provided by a company even when it may have engaged qualified engineers to carry on or promote its business would not tantamount to a taxable service within the meaning of the Finance Act so as to justify any demand on the basis thereof. After analysing the entire scheme of the service tax liability imposed by the Finance Act, 1994, it is observed and held in paragraphs 6 to 11 as under:6. It is evident from a conspectus of the provisions referred to above that the taxable event is the providing of service with the levy falling on the provider. It is also evident that the liability to pay is not confined to only individuals. The levy falls on every person providing the service. The expression every person in turn is wide enough to include a Company incorporated under the Companies Act. Suffice it to say that the Scheme of the Act envisages a tax on such services as have for purposes of the levy been described as taxable. It is for purposes of levy and collection of the tax immaterial whether the provider of the service is an individual or a juristic person like an incorporated Company. Thus far there is no difficulty. What according to the petitioner makes the all important difference is the definition of the expressions consulting engineer and taxable service as provided by Section 65(13) and Section 65(48) of the Act. The same may at this stage be extracted for ready reference.Section 65(13): consulting engineer means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering.Section 65(48): taxable service means any service provided-(g) to a client, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering.7. The argument is that a service provided by a technically qualified person in regard to advice, consultancy or technical assistance in one or more disciplines of engineering is taxable only if the same is provided either by an individual, who is a professionally qualified engineer or by an engineering firm. Any service provided by a Company even when based on the advice of professionally qualified engineers is not a taxable service so as to attract the levy under the Act. Since the petitioner-Company is neither an individual nor a partnership concern, any service provided by it even when the same may relate to any discipline of engineering and be based on the opinion of qualified engineers engaged by it cannot be regarded as a taxable service. The argument is no doubt attractive though not equally sound. The reasons are not far to seek. The question in essence is whether the Scheme of the Act makes any distinction between services rendered or provided by individuals and partnership concerns on the one hand and incorporated companies on the other. The answer has to be in the negative. As noticed earlier, the Act aims at levying a tax on the services declared taxable regardless whether the same are provided by a natural or a juristic person. There is no distinction under the Act between the provider of a service, who is an individual, a partnership concern or an incorporated company. The liability to pay tax on the service provided falls uniformly on all the three, provided the service is of a kind that has been declared taxable under Section 65(48) of the Act. Viewed thus, what is taxed by the Act in the case of service provided by consultant engineers is the service provided directly or indirectly in the nature of advice, consultancy or technical assistance in any manner and relating to any disciplines of engineering. The fact that the service is provided by an individual or a partnership or by a Company is wholly inconsequential. It is true that inclusion of in the definition of the expression consulting engineer could include a Company to set the entire controversy at rest, but the very fact that a Company providing a technical assistance in any engineering discipline is not specifically included in the definition of the expression consulting engineer would not ipso facto mean that service rendered by any such Company cannot be considered to be taxable. It is fairly well settled that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the Court is entitled to put upon it a construction which modifies the meaning of the words used in the same. The decision of the Supreme Court in Tirath Singh v. Bachittar Singh (AIR 1955 SC 830 ), where the Court made the following observations is apposite: —Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumable not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.8. Reference may also be made to the decision of the Supreme Court in Commissioner of Income Tax, Bangalore v. J.H. Gotla (AIR 1985 SC 1698 ), wherein their lordships declared that a plain interpretation of the statutory provision produces a manifestly unjust result, which could never have been intended by the legislature, the Court may modify the language: —Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the legislature, the Court might modify the language used by the legislature so as to achieve the intention of the legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. Section 16(3) of the Act has to be read in conjunction with Section 24(2) for the purpose in question. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract, the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, the intention must be found out from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation then if other construction is possible apart form strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction.9. Reference may also be made to the decision of the Supreme Court in Nagpur Electric Light and Power Company Limited v. K. Shreepathirao (AIR 1958 SC 658 ), where the Court declared that even a definition clause in an enactment must derive its meaning from the context or subject.10. In Motipur Zamindari Company Limited v. State of Bihar and Another (AIR 1953 SC 320 ), the Court held that there was no justification to differentiate between a company and an individual and that there was nothing in the statute being interpreted Court in that case, which would prevent the inclusion of the Company. The Court was in that case interpreting the term proprietor as defined by Section 2(O) of Bihar Land Reforms Act. It held that in view of the object of the Bihar Land Reforms Act, there was no reason to differentiate between an individual proprietor and a company which owns estates or tenures.11. The position is no different in the instant case. There is, in my opinion, nothing repugnant in the subject or context of the Act, which should prevent the inclusion of a Company for purposes of levy of service tax on any advice, consultancy or technical assistance provided by it to its clients in regard to one or more disciplines of engineering. Indeed, if the argument advanced on behalf of the petitioner is accepted, it would remove all companies providing technical services, advice or consultancy to their clients from the tax net while any such services rendered by an individual or a partnership concern would continue to remain taxable. The Act does not, in my opinion, envisages any such classification let alone create and perpetuate anomalies that would flow from the same. The view taken by the Additional Commissioner of Central Excise that the petitioner-Company was liable to pay service tax cannot therefore be found fault with.10.3 A similar controversy arose before the Calcutta High Court in the case of M.N. Dastur (supra). The Calcutta High Court in the said case was also considering the service tax law under the Finance Act, 1994 regime. The question before the Calcutta High Court was as to whether the expression engineering firm used in the definition of consulting engineer in Section 65(31) of the Finance Act, 1994, Chapter V, relating to service tax includes a company.The aforesaid issue had been considered in detail by the High Court after considering the entire scheme of the service tax and the object of the Act including the taxable even etc. and ultimately held against the petitioner and it was held that the petitioner in that case being a company was subjected to service tax law under the Finance Act, 1994. The relevant discussion, observations and the findings recorded by the High Court in paragraphs 8 to 30 are as under:Consulting engineer: Whether includes a company:8. The definition of consulting engineer admittedly has not used identical expression used in defining the other assessees liable to pay service tax. Apart from the definition of consulting engineer in section 65(13), in all other cases, the expression person or concern or commercial concern has been used. Admittedly, a different expression has been used in defining consulting engineer7. It could not have been contended, and rightly, that the Legislature had made a distinction consciously and by reason of such distinction, it had intended differently. A fiscal statute has to be construed strictly, if something is not subject to levy of tax clearly expressed in the statute, the same cannot be brought within the tax net by way of interpretation as was held in A.V. Fernandez, [1957] 8 STC 561 (SC). It is a settled proposition that it is the clear words of law and not the intention of the Legislature, which is to be examined to find out what the taxing statute has clearly said. There is no room for intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. Only the language used is to be looked at fairly as was laid down in Orissa State Warehousing Corporation, [1999] 237 ITR 589 (SC) quoting from Cape Brandy Syndicate v. IRC, [1921] 1 KB 64 and also in CIT v. Ajax Products Ltd., [1965] 55 ITR 741 (SC). At the same time, as held in C.A. Abraham, [1961] 41 ITR 425 (SC), the court cannot proceed to make good the deficiency, if there be any. The court must interpret the statute as it stands. In the case of doubt, the interpretation favourable to the taxpayer is to be adopted. At the same time, in the case of absurdity the court can make good the deficiency, remove the absurdity and interpret the statute according to its objects and purposes.9. The word firm cannot include a company. The name of a partnership firm is a compendious method of describing the partners in a partnership firm as was laid down in Mrs. Bacha F. Guzdar, [1955] 27 ITR 1 (SC), Dulichand Laxminarayan, [1956] 29 ITR 535 (SC) and Malabar Fisheries Co., [1979] 120 ITR 49 (SC). It is distinct from a company, a juristic person distinct from its shareholders; whereas a partnership firm comprises the partners and has no separate entity or existence without the partners. According to section 4 of the Partnership Act, 1932, a firm means persons entering into partnership with another collectively called a firm, a compendious method of describing the partners in a partnership. The partners own absolute interest in the partnership firm and its assets and properties. The partners and the partnership firm are not distinct and separate entities and are identified with each other. Whereas a company is a juristic person, a distinct and separate entity other than its shareholders. The shareholders by reason of their holding of shares do not hold any interest in the assets and properties of the company. The shareholders interest is confined to the profits and gains of the company; it does not extend beyond the interest to receive dividends or liability to the proportion of his shareholding. A shareholder cannot claim any interest in the property of the company. It was so held in Mrs. Bacha F. Guzdar, [1955] 27 ITR 1 (SC).10. In Vazir Sultan Tobacco Co Ltd., [1981] 132 ITR 559 , the Supreme Court had made a distinction between the company and a firm, which is to be understood in the light of the definition given in section 4 of the Indian Partnership Act. There is no doubt about the legal proposition. But each case has to be considered according to its own merits having, regard to the facts and circumstances of the case. So far as the decision in Vazir Sultan Tobacco Co. Ltd., [1981] 132 ITR 559 (SC) is concerned, it was dealing with the expression reserve as defined in the Companies (Profits) Surtax Act, 1964. The provisions contained therein were distinct and different from the provisions with which we are concerned. In the context of the said 1964 Act, the Supreme Court was considering the expression with reference to the Companies Act holding that the expression not defined in the 1964 Act is to be understood by reference to the expression used under the Companies Act, 1956. Therefore, this decision will not help us in order to interpret the expression firm used in the definition of consulting engineer in the Finance Act, 1994.11. Keeping the above settled principles of law in mind, we may now proceed to find out as to whether the expression firm used in section 65(13) is to be understood differently.Section 65: The definitions: Scheme and context:12. In order to ascertain the Situation/the principles of interpretation have to be followed. The court in order to construe the definition comprehensively may apply the golden rule of interpretation according to the ordinary grammatical meaning having regard to the scheme of the definitions and in the context of the provisions contained in the statute and the object and purpose for which it was enacted. It is apparent that the expressions person, concern or commercial concern have been used to define all other assessees liable to pay service tax except section 65(13) defining consulting engineer. The word person as defined in section 3(42) of the General Clauses Act includes an individual, a company or an association of persons. A person includes a juristic person. A company is a juristic person and there would be no difficulty to include a company when the definition uses the expression person. Similarly, a concern without any qualification can include any business or professional establishment and the commercial concern would include all concerns connected with commerce carrying on trade or profession or any kind of commercial activities and includes a company.13. In the present case, section 65(13) includes an individual professionally qualified as an engineer. This does not seem to be disputed. The definition also includes an engineering firm. According to Dr. Pal, though qualified by the word engineering, a firm is to be understood something distinct from the company. According to him, it clearly means a partnership firm. It may be proprietorship firm but in any event it would be an association of qualified engineers without losing its entity or identity of being a qualified engineer either as an individual or as a partner in the partnership firm or as a person in an association of persons without losing its identity other than a compendious mode of describing themselves without resulting into an entity different from the firm as it would be in the case of a company in relation to its shareholders.14. Therefore, if the definition does not clearly include a company in view of the principles on which the fiscal statute is interpreted, a company cannot be brought within the taxing net and when there is some doubt, the benefit would be available to the assessee, the taxpayer. Admittedly, the court while interpreting the provision cannot make good the deficiency; therefore, it is to be understood as it is.15. But, it appears that there is a fallacy hidden in the definition under section 65(13). The expression firm has not been used independent of its qualification. The engineers are definitely individuals or persons, but are not ordinary individuals or persons. They are qualified engineers. Therefore, an individual qualified engineer may be a person and means a person as well and include a person, who is a qualified engineer. But the expression person may include a qualified engineer but the said expression is insufficient to identify a particular class of persons who are qualified engineers. Therefore, the expression person could not be used to define a consulting engineer when he is an individual or an association of persons or otherwise.16. The expressions person, concern or commercial concern appear to have been used freely in its common and ordinary meaning apposite to the particular class of assessee subject to service tax. It does not seem to give any particular or specified meaning. These expressions have been used to identify a class of assessee. It does not make any distinction inter se within the particular class. The definition is intended to embrace the class of assessee subject to service tax. In none of the definitions, it appears that any class within the class had ever been intended to be identified. Neither it appears that a class within the class was made liable or was intended to be excluded from the liability to pay service tax The context in which these definitions were given was intended to identify a particular class of assessee liable to pay service tax.17. Therefore, when in none of the definitions there was any attempt to identify a class within the class in order to make liable or exempt from the liability, that particular class within the class from being subjected to service tax, it cannot be conceived that the Legislature had attempted to make such a distinction in the definition of consulting engineer by creating a class within the class for the purpose of exemption from the liability to pay service tax. When in all classes of assessees as defined in section 65, the whole of the particular class falling within the definition have been made liable, it would be wholly against the scheme, object and purpose of the legislation to exempt a particular class coming within the definition of consulting engineer. The definitions have been intended to identify a particular class liable to pay service tax. There cannot be any earthly reason to tax all coming within the particular class except one within that class. Nothing seems to appear from the scheme and the context in which the legislation was enacted to make a rational or intelligible differentia to exempt one class within the class.18. It is inconceivable that a consulting engineer as an individual or constituting a partnership firm or a proprietorship firm would be liable to pay tax under the service tax laws, but the same persons forming a company, a different juristic person, a distinct legal entity apart from the shareholders, would be outside the tax net. We do not find any reason as to why a company providing taxable service as defined under section 65(48)(g) would not be a taxable service, when it would be so when provided by an individual qualified engineer or a proprietorship or partnership firm of engineers. This seems to be little absurd.Sections 66 and 68 : The chargeability : The taxable event:19. Section 66 is the charging section. Under sub-section (3), service tax is levied at the rate of 5 per cent, of the value of the taxable service referred to in sub-clause (g) among others enumerated in section 65(48) and collected in such manner as prescribed. Section 68 provides that every person providing taxable service to any person shall pay service tax at the rate specified in section 66 in such manner and within such period as may be prescribed. That apart, by reason of sub-section (2) of section 68, any other taxable service on being notified by the Central Government may also be liable to service tax in the same manner as may be prescribed and the rate specified in section 66 subject to the provisions of Chapter V may apply to such person as if he is the person liable to pay the service tax in relation to such taxable service.20. Therefore, section 65 cannot be read out of the context and the scheme of the Act. It has to be read in consonance with sections 66 and 68, namely, the charging section and the liability to pay. Rule 6 in sub- rule (1) provides that service tax on the value of the taxable service received during the calendar month shall be paid to the credit of the Central Government by 25th day of the month immediately following. The proviso, however, carves out an exception in respect of the assessee, who is an individual or a proprietary firm or a partnership firm, who are supposed to pay on the 25th day of the month immediately following the quarter in which service tax in the value of taxable service is received.21. Admittedly, the word firm has not been defined in the Act. We are to give the ordinary grammatical meaning of the word firm in order to interpret the provisions of section 65(13). While ascertaining the meaning of the word firm intended to be given by the Legislature, we may first look into the word if used elsewhere in the statute in consonance with the taxing event apparent from the scheme and gather the meaning therefrom. In Nagpur Electric Light and Power Co. Ltd. v. K. Shreepathirao, [1958-59] 14 FJR 199; AIR 1958 SC 658 , the apex court declared that a definition clause in an enactment must derive its meaning from the context or subject. We find that the word firm has been used in section 81 where it was explained in relation to imposition of penalty. It has been used in rule 6 to make a distinction with regard to the manner of payment. This use of the word firm in the statute and the rules indicates how it is to be interpreted. It is the responsibility of the court to interpret the word in a manner consonance with the scheme and the object and its purpose as well as the different expressions used in the statute unless a different intention of the Legislature is apparent to impute a different meaning. While fixing the liability on account of breach of the provisions of the statute, a company has been explained to include a partnership firm. According to the scheme of the Act, the tax is leviable on the provider of taxable service. The providing of the taxable service is taxable event. Under section 68, every person providing taxable service is made liable to pay the tax. Thus, it appears that the Legislature had never intended to make any distinction between a firm and a company for the purpose of defining consulting engineer. If for the purpose of penalty, it can be so, then it would also be so in relation to chargeability.22. Any other interpretation would lead to absurdity, a deficiency supposed to be made good by the court while interpreting. If two views are possible, and one leads to absurdity, the other possible view is to be accepted. The principle of beneficial interpretation in favour of the assessee cannot come into play on the face of absurdity. The use of the word firm qualified by the word engineering was intended to denote a conglomeration of engineers providing taxable service in its ordinary, common and natural sense. The words engineering firm denote an establishment of engineers providing taxable service defined under section 65(48)(g). The Legislature had never used nor intended to use the word firm in its legal or technical sense.23. Words used in a statute dealing with matters relating to the general public are presumed to have been used in their popular rather than narrow, legal or technical sense. The doctrine of loquitur ut vulgus, i.e., according to the common understanding and acceptance of the terms, is to be applied in construing the words used in the statute dealing with matters relating to the public in general. If an Act is directed to dealings with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. It was so observed by Lord Esher M.R. at page 119 in Unwin v. Hanson, [1891] 2 QB 115 (CA). That the Income-tax Act and for that matter the Finance Act is of general application is beyond dispute. It is all the more so because the Finance Act is one consolidating and amending the law relating to income-tax, super tax, service tax, etc. To support this proposition, we may derive inspiration from Rao Bahadur Ravulu Subba Rao v. CIT, [1956] 30 ITR 163 (SC) at page 169. Therefore, the natural not the legal or technical meaning of the word firm is to be given.Section 65(13): Firm: Natural meaning:24. Having read the provisions in the context it is used and the scheme in which it is intended to be used and the object and purpose of enacting the statute and the absence of any intelligible differentia or a rational classification, it has to be interpreted to include all kinds of firm, i.e., a business establishment. This again we must note that the Legislature had used the expression engineering firm. The firm has been qualified by the word engineering. Therefore, the word firm has been used in this particular class of assessee to include all classes of firms dealing with engineering. The word firm was not used for the purpose of indicating the constitution of the firm, namely, a proprietorship or partnership, but in order to identify a class of firm providing taxable service within the meaning of section 65(48)(g).25. In these circumstances, we do not think that there is any deficiency in the definition of consulting engineer, which could be presumed to have excluded a company providing taxable service defined under section 65(48)(g) when its counterparts comprising an individual or a proprietorship or partnership firm or an association of person are included. From the scheme of the Act, we have not been able to find out any intelligible differentia or rational classification for excluding a company providing taxable service under section 65(48)(g) when its counterparts being individuals or proprietorship or partnership or association of persons are coming within the taxing net providing the same service. This is further supported from the scheme of the 1994 Act. The Act aims at levying tax on service. It is the taxable service, which makes the provider liable. Thus, the taxable event is the providing of service and the levy falls on the provider. It would be inconceivable that the Legislature had intended that the levy would fall on a provider when an individual or a proprietorship or partnership firm but not when a company. The distinction seems to be unintelligible and without any rationale, thus absurd. Under section 68 the liability is of every person. In support of this proposition, we may gainfully refer to the decision in Motipur Zamindari Co. Ltd. v. State of Bihar, AIR 1953 SC 320 , where the court held that there was no justification to differentiate between a company and an individual and that there was nothing in the statute being interpreted by the court in that case, which would prevent the inclusion of the company. The court was in that case interpreting the term proprietor as defined by section 2(o) of the Bihar Land Reforms Act. It held that in view of the object of the Bihar Land Reforms Act, there was no reason to differentiate between an individual proprietor and a company, which owns estates or tenures.26. The object of the Act is of general application, and not intended to confer any special benefit to a company. The definition of all other assessees includes company, then it is not known why the Legislature would intend to exclude a company providing a particular class of taxable service falling within section 65(48)(g). Though eloquently argued by Dr. Pal, the rationale between the differentiation having regard to the expression firm imposing liability to the whole class to exempt a class within the class is not intelligible and does not at all make out a case of rational classification to interpret the said definition otherwise than in consonance with the definition given to all other class read together with sections 66 and 68 having regard to the object and purpose of the enactment. When the statute is not a statute aimed at conferring certain special treatment for protecting the interest of a company, such an interpretation is not possible. Therefore, though for different reason, we are in agreement with the decision of the learned single judge since appealed against.27. To support our view, we may borrow the reasoning from the decision of the Karnataka High Court in Tata Consultancy Services, [2002] 257 ITR 710, relying on the decisions in Tirath Singh v. Bachittar Singh, AIR 1955 SC 830 and CIT v. J.H. Gotla, [1985] 156 ITR 323 ; (1985) 4 SCC 343 : AIR 1985 SC 1698 to support its view, as quoted hereafter (page 715):There is no distinction under the Ad between the provider of a service, who is an individual, a partnership concern or an incorporated company. The liability to pay tax on the service provided falls uniformly on all the three, provided the service is of a kind that has been declared taxable under section 65(48) of the Ad. Viewed thus, what is taxed by the Act in the case of service provided by consultant engineers is the service provided directly or indirectly in the nature of advice, consultancy or technical assistance in any manner and relating to any disciplines of engineering. The fad that the service is provided by an individual or a partnership or by a company is wholly inconsequential. It is true that inclusion in the definition of the expression consulting engineer could indude a company to set the entire controversy at rest, but the very fad that a company providing a technical assistance in any engineering discipline is not specifically included in the definition of the expression consulting engineer would not, ipso facto, mean that service rendered by any such company cannot be considered to be taxable. It is fairly well-settled that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the court is entitled to put upon it a construction which modifies the meaning of the words used in the same.28. The decision in Dr. V. Shanmughavel, [2001] 131 ELT 14 (Mad) may not help us much since in that case the distinction was sought to be made as to whether the services rendered by a valuer or by an engineer would come within the definition of consulting engineer or not. Though some other decisions have since been cited by Dr. Pal, but we do not find any reason to discuss the same, since, in our view, any further discussion would be superfluous.29. Thus, the circular dated July 2, 1997, issued by the Ministry of Finance and the said circular dated July 3, 1997, cannot be held to be contrary to the provisions of the statute or inconsistent with the scheme and the context of the service tax law or repugnant to the clear legislative provisions defining consulting engineer under section 65(13). Having regard to the discussion made above, it cannot be said that the said circular was issued in excess of the parameters limited by the legislation delegating the power. It is well within the parameters and, therefore, can never be ultra vires the parent Act or void. Therefore, the ratio decided in G.S. Dali and Flour Mills, [1991] 187 ITR 478 (SC) cannot be attracted. Since it is well within the enactment, it is not a case that a tax is being imposed by reason of the said two circulars on the company though not liable through subordinate legislation without being authorised by the parent Act as was held in Gopal Narain, AIR 1964 SC 370 .30. From the discussion above, we are of the view that the word firm used in the definition of consulting engineer interpreted in the context and the scheme of section 65 in consonance with section 66 and section 68 and the meaning conferred to the word firm elsewhere in the statute includes a company as explained in section 81 since there is nothing to support an intelligible differentia or a rational classification between a company and a firm providing taxable service defined under section 65(48)(g) to exclude a company from the tax net when both providing the same taxable service being the taxable event in a statute, which is not meant for providing special provisions for or benefit to a company.10.4 At this stage, it is required to be noted that all the decisions of some of the High Courts relied upon on behalf of the respondent are of post amendment 2005. In none of the cases, the respective High Courts had an occasion to consider the actual meaning and definition of consulting engineer contained in Finance Act, 1994, which directly fell for consideration before the Karnataka and Calcutta High Courts in the cases of TCS (supra) and M.N. Dastur (supra).11. As observed hereinabove, in many places under the Finance Act, 1994, the Parliament/Legislature has used the word person (Sections 68, 69 and 70). At this stage, Section 3(42) of the General Clauses Act, 1897 is also required to be referred to, considered and applied. The word person includes any company or association or body of individuals, whether incorporated or not. Therefore, there is no logic and/or reason to exclude a body corporate from the definition of consulting engineer and to exclude the services of a consulting engineer rendered by a body corporate to exclude and/or exempt from the service tax net. Such an interpretation would lead to anomaly and absurdity. As observed hereinabove, it will create two different classes providing the same services which could not be the intention of the Parliament/Legislature. Therefore, we are in complete agreement with the view taken by the High Court of Karnataka in the case of TCS (supra) and the Calcutta High Court in the case of M.N. Dastur (supra), taking the view that a firm and a company can be said to be a consulting engineer as defined under the Finance Act, 1994 and liable to pay the service tax as a service provider.12. In view of our above finding that under the Finance Act, 1994, in the definition of consulting engineer, a body corporate is included and/or to be read into so as to bring a body corporate being a service provider providing the consultancy engineering services within the service tax net, as such, it is not necessary to consider whether the subsequent amendment amending the definition of consulting engineer by way of 2005 amendment adding a body corporate within the definition of consulting engineer would be retrospective and/or whether it can be said to be a clarificatory in nature or not and the said issue would become academic now. | 0 | 12,770 | 8,129 | ### 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 Ad between the provider of a service, who is an individual, a partnership concern or an incorporated company. The liability to pay tax on the service provided falls uniformly on all the three, provided the service is of a kind that has been declared taxable under section 65(48) of the Ad. Viewed thus, what is taxed by the Act in the case of service provided by consultant engineers is the service provided directly or indirectly in the nature of advice, consultancy or technical assistance in any manner and relating to any disciplines of engineering. The fad that the service is provided by an individual or a partnership or by a company is wholly inconsequential. It is true that inclusion in the definition of the expression consulting engineer could indude a company to set the entire controversy at rest, but the very fad that a company providing a technical assistance in any engineering discipline is not specifically included in the definition of the expression consulting engineer would not, ipso facto, mean that service rendered by any such company cannot be considered to be taxable. It is fairly well-settled that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the court is entitled to put upon it a construction which modifies the meaning of the words used in the same. 28. The decision in Dr. V. Shanmughavel, [2001] 131 ELT 14 (Mad) may not help us much since in that case the distinction was sought to be made as to whether the services rendered by a valuer or by an engineer would come within the definition of consulting engineer or not. Though some other decisions have since been cited by Dr. Pal, but we do not find any reason to discuss the same, since, in our view, any further discussion would be superfluous. Conclusion: 29. Thus, the circular dated July 2, 1997, issued by the Ministry of Finance and the said circular dated July 3, 1997, cannot be held to be contrary to the provisions of the statute or inconsistent with the scheme and the context of the service tax law or repugnant to the clear legislative provisions defining consulting engineer under section 65(13). Having regard to the discussion made above, it cannot be said that the said circular was issued in excess of the parameters limited by the legislation delegating the power. It is well within the parameters and, therefore, can never be ultra vires the parent Act or void. Therefore, the ratio decided in G.S. Dali and Flour Mills, [1991] 187 ITR 478 (SC) cannot be attracted. Since it is well within the enactment, it is not a case that a tax is being imposed by reason of the said two circulars on the company though not liable through subordinate legislation without being authorised by the parent Act as was held in Gopal Narain, AIR 1964 SC 370 . 30. From the discussion above, we are of the view that the word firm used in the definition of consulting engineer interpreted in the context and the scheme of section 65 in consonance with section 66 and section 68 and the meaning conferred to the word firm elsewhere in the statute includes a company as explained in section 81 since there is nothing to support an intelligible differentia or a rational classification between a company and a firm providing taxable service defined under section 65(48)(g) to exclude a company from the tax net when both providing the same taxable service being the taxable event in a statute, which is not meant for providing special provisions for or benefit to a company. 10.4 At this stage, it is required to be noted that all the decisions of some of the High Courts relied upon on behalf of the respondent are of post amendment 2005. In none of the cases, the respective High Courts had an occasion to consider the actual meaning and definition of consulting engineer contained in Finance Act, 1994, which directly fell for consideration before the Karnataka and Calcutta High Courts in the cases of TCS (supra) and M.N. Dastur (supra). 11. As observed hereinabove, in many places under the Finance Act, 1994, the Parliament/Legislature has used the word person (Sections 68, 69 and 70). At this stage, Section 3(42) of the General Clauses Act, 1897 is also required to be referred to, considered and applied. The word person includes any company or association or body of individuals, whether incorporated or not. Therefore, there is no logic and/or reason to exclude a body corporate from the definition of consulting engineer and to exclude the services of a consulting engineer rendered by a body corporate to exclude and/or exempt from the service tax net. Such an interpretation would lead to anomaly and absurdity. As observed hereinabove, it will create two different classes providing the same services which could not be the intention of the Parliament/Legislature. Therefore, we are in complete agreement with the view taken by the High Court of Karnataka in the case of TCS (supra) and the Calcutta High Court in the case of M.N. Dastur (supra), taking the view that a firm and a company can be said to be a consulting engineer as defined under the Finance Act, 1994 and liable to pay the service tax as a service provider. 12. In view of our above finding that under the Finance Act, 1994, in the definition of consulting engineer, a body corporate is included and/or to be read into so as to bring a body corporate being a service provider providing the consultancy engineering services within the service tax net, as such, it is not necessary to consider whether the subsequent amendment amending the definition of consulting engineer by way of 2005 amendment adding a body corporate within the definition of consulting engineer would be retrospective and/or whether it can be said to be a clarificatory in nature or not and the said issue would become academic now.
### Response:
0
### Explanation:
(page 715):There is no distinction under the Ad between the provider of a service, who is an individual, a partnership concern or an incorporated company. The liability to pay tax on the service provided falls uniformly on all the three, provided the service is of a kind that has been declared taxable under section 65(48) of the Ad. Viewed thus, what is taxed by the Act in the case of service provided by consultant engineers is the service provided directly or indirectly in the nature of advice, consultancy or technical assistance in any manner and relating to any disciplines of engineering. The fad that the service is provided by an individual or a partnership or by a company is wholly inconsequential. It is true that inclusion in the definition of the expression consulting engineer could indude a company to set the entire controversy at rest, but the very fad that a company providing a technical assistance in any engineering discipline is not specifically included in the definition of the expression consulting engineer would not, ipso facto, mean that service rendered by any such company cannot be considered to be taxable. It is fairly well-settled that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the court is entitled to put upon it a construction which modifies the meaning of the words used in the same.28. The decision in Dr. V. Shanmughavel, [2001] 131 ELT 14 (Mad) may not help us much since in that case the distinction was sought to be made as to whether the services rendered by a valuer or by an engineer would come within the definition of consulting engineer or not. Though some other decisions have since been cited by Dr. Pal, but we do not find any reason to discuss the same, since, in our view, any further discussion would be superfluous.29. Thus, the circular dated July 2, 1997, issued by the Ministry of Finance and the said circular dated July 3, 1997, cannot be held to be contrary to the provisions of the statute or inconsistent with the scheme and the context of the service tax law or repugnant to the clear legislative provisions defining consulting engineer under section 65(13). Having regard to the discussion made above, it cannot be said that the said circular was issued in excess of the parameters limited by the legislation delegating the power. It is well within the parameters and, therefore, can never be ultra vires the parent Act or void. Therefore, the ratio decided in G.S. Dali and Flour Mills, [1991] 187 ITR 478 (SC) cannot be attracted. Since it is well within the enactment, it is not a case that a tax is being imposed by reason of the said two circulars on the company though not liable through subordinate legislation without being authorised by the parent Act as was held in Gopal Narain, AIR 1964 SC 370 .30. From the discussion above, we are of the view that the word firm used in the definition of consulting engineer interpreted in the context and the scheme of section 65 in consonance with section 66 and section 68 and the meaning conferred to the word firm elsewhere in the statute includes a company as explained in section 81 since there is nothing to support an intelligible differentia or a rational classification between a company and a firm providing taxable service defined under section 65(48)(g) to exclude a company from the tax net when both providing the same taxable service being the taxable event in a statute, which is not meant for providing special provisions for or benefit to a company.10.4 At this stage, it is required to be noted that all the decisions of some of the High Courts relied upon on behalf of the respondent are of post amendment 2005. In none of the cases, the respective High Courts had an occasion to consider the actual meaning and definition of consulting engineer contained in Finance Act, 1994, which directly fell for consideration before the Karnataka and Calcutta High Courts in the cases of TCS (supra) and M.N. Dastur (supra).11. As observed hereinabove, in many places under the Finance Act, 1994, the Parliament/Legislature has used the word person (Sections 68, 69 and 70). At this stage, Section 3(42) of the General Clauses Act, 1897 is also required to be referred to, considered and applied. The word person includes any company or association or body of individuals, whether incorporated or not. Therefore, there is no logic and/or reason to exclude a body corporate from the definition of consulting engineer and to exclude the services of a consulting engineer rendered by a body corporate to exclude and/or exempt from the service tax net. Such an interpretation would lead to anomaly and absurdity. As observed hereinabove, it will create two different classes providing the same services which could not be the intention of the Parliament/Legislature. Therefore, we are in complete agreement with the view taken by the High Court of Karnataka in the case of TCS (supra) and the Calcutta High Court in the case of M.N. Dastur (supra), taking the view that a firm and a company can be said to be a consulting engineer as defined under the Finance Act, 1994 and liable to pay the service tax as a service provider.12. In view of our above finding that under the Finance Act, 1994, in the definition of consulting engineer, a body corporate is included and/or to be read into so as to bring a body corporate being a service provider providing the consultancy engineering services within the service tax net, as such, it is not necessary to consider whether the subsequent amendment amending the definition of consulting engineer by way of 2005 amendment adding a body corporate within the definition of consulting engineer would be retrospective and/or whether it can be said to be a clarificatory in nature or not and the said issue would become academic now.
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Arrive Safe Society of Chandigarh Vs. The Union Territory of Chandigarh & Another | from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway; (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken; (vii) These directions issue under Article 142 of the Constitution?2. The present proceedings relate to Chandigarh. A notification was issued on 21 October 2005 by the Chandigarh Administration notifying major arterial roads (described as V1, V2 and V3 roads) as state highways. The development and maintenance of these roads was directed to vest in Chandigarh Administration. Recently, on 16 March 2017 the earlier notification was modified by the Administration. By the notification, all V1, V2 and V3 roads have been declared as major district roads except for National Highway no.21 and Madhya Marg from Panchkula border to Mullanpur border. 3. The notification dated 16 March 2017 was challenged before the High Court of Punjab and Haryana on the ground that it circumvents the judgment of this Court in K.Balu (supra). The contention did not find acceptance and the writ petition filed by the petitioner was rejected. This gave rise to proceedings under Article 136 of the Constitution. 4. After hearing the learned counsel appearing on behalf of the petitioner and the Additional Solicitor General for the Union Territory Administration, we dismissed the petition on 11 July, 2017 and indicated that our reasons would follow. We are accordingly indicating our reasons for dismissing the Special Leave Petition both to clarify the import of the order of this Court and to set at rest any doubt about its ambit and applicability. 5. The roads in the city of Chandigarh have been categorized from V1 to V8. The description of these roads is as follows :TypeFunction V-1Roads connecting Chandigarh with other cities in the region. The Madhya Marg, Dakshin Marg merge with the V1?s leading to Kalka and Ambala respectively. V-2The major avenues of Chandigarh, with important institutional and commercial buildings located on them. Madhya Marg, Dakshin Marg, Jan Marg, Himalaya Marg, Uttar Marg and Purv Marg are important examples of these. V-3Roads between sectors for fast moving vehicular traffic. Each sector is surrounded either by a V2 or V3. V-4Shopping streets cutting through sectors with shops on either southern side. V-5Circulation roads within sectors. V-6Roads providing access to houses. V-7Foot paths through ?Green belts enabling pedestrians to cross sectors without having to cross vehicular traffic and cycle tracks. V-8Cycle tracks through green spaces.The High Court has noticed that the original notification dated 21 October 2005 was not of a statutory nature and its purpose was only to make an internal arrangement to assign responsibility for maintenance of roads. By classifying certain roads as state highways, the responsibility for maintenance and development was vested in Chandigarh Administration. Since funds were being received from the Central Road Fund, in order to utilise these funds for the maintenance of roads, certain internal roads which pass through the city were declared as state highways in addition to National Highway No 21 which passes through Chandigarh. The High Court observed that these roads are in fact inter-sectoral roads, connecting sectors into which the city is divided. However, even after the notification dated 16 March 2017, National Highway no 21 which passes through the city is as it is. So also is the case with Madhya Marg which passes through the city and connects Panchkula in the State of Haryana and Mullanpur in the State of Punjab. Madhya Marg continues to be a state highway. On these findings, the High Court did not find substance in the challenge and dismissed the writ petition. 6. The judgment of this Court dated 15 December 2016 addresses dangers to life and safety caused by drunken driving on national and state highways and specifically deals with the problem from the perspective of the availability of alcohol. Roads within a metropolitan city essentially provide connectivity within the city. Chandigarh is an illustration. The roads categorized as V1, V2 and V3 are essentially roads within the city. They were categorized as highways by an administrative decision of 21 October 2005 primarily with a view to ensure their maintenance and development by availing of funds available from the Central Road Fund. The alteration in the nomenclature of certain roads, which has been carried out by the subsequent notification dated 16 March 2017, has left unaffected National Highway no 21 which passes through the city and Madhya Marg which connects the States of Haryana and Punjab. The judgment of this Court dated 15 December 2016 prohibits the grant of licences for the sale of liquor along and in proximity of the National and State Highways including those falling within the limits of municipal corporations, cities, towns or local authorities. Directions (i) and (ii) extracted earlier did not prevent the Administration from re-classifying inter-sectoral roads within the city from state highways to major district roads. The exercise carried out by Chandigarh Administration does not breach the directions issued by this Court. It is neither in violation of the terms of the order nor of the purpose and intendment behind those directions. 7. The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court. | 0[ds]6. The judgment of this Court dated 15 December 2016 addresses dangers to life and safety caused by drunken driving on national and state highways and specifically deals with the problem from the perspective of the availability of alcohol. Roads within a metropolitan city essentially provide connectivity within the city. Chandigarh is an illustration. The roads categorized as V1, V2 and V3 are essentially roads within the city. They were categorized as highways by an administrative decision of 21 October 2005 primarily with a view to ensure their maintenance and development by availing of funds available from the Central Road Fund. The alteration in the nomenclature of certain roads, which has been carried out by the subsequent notification dated 16 March 2017, has left unaffected National Highway no 21 which passes through the city and Madhya Marg which connects the States of Haryana and Punjab. The judgment of this Court dated 15 December 2016 prohibits the grant of licences for the sale of liquor along and in proximity of the National and State Highways including those falling within the limits of municipal corporations, cities, towns or local authorities. Directions (i) and (ii) extracted earlier did not prevent the Administration froml roads within the city from state highways to major district roads. The exercise carried out by Chandigarh Administration does not breach the directions issued by this Court. It is neither in violation of the terms of the order nor of the purpose and intendment behind those directions.The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court. | 0 | 1,327 | 357 | ### 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:
from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway; (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken; (vii) These directions issue under Article 142 of the Constitution?2. The present proceedings relate to Chandigarh. A notification was issued on 21 October 2005 by the Chandigarh Administration notifying major arterial roads (described as V1, V2 and V3 roads) as state highways. The development and maintenance of these roads was directed to vest in Chandigarh Administration. Recently, on 16 March 2017 the earlier notification was modified by the Administration. By the notification, all V1, V2 and V3 roads have been declared as major district roads except for National Highway no.21 and Madhya Marg from Panchkula border to Mullanpur border. 3. The notification dated 16 March 2017 was challenged before the High Court of Punjab and Haryana on the ground that it circumvents the judgment of this Court in K.Balu (supra). The contention did not find acceptance and the writ petition filed by the petitioner was rejected. This gave rise to proceedings under Article 136 of the Constitution. 4. After hearing the learned counsel appearing on behalf of the petitioner and the Additional Solicitor General for the Union Territory Administration, we dismissed the petition on 11 July, 2017 and indicated that our reasons would follow. We are accordingly indicating our reasons for dismissing the Special Leave Petition both to clarify the import of the order of this Court and to set at rest any doubt about its ambit and applicability. 5. The roads in the city of Chandigarh have been categorized from V1 to V8. The description of these roads is as follows :TypeFunction V-1Roads connecting Chandigarh with other cities in the region. The Madhya Marg, Dakshin Marg merge with the V1?s leading to Kalka and Ambala respectively. V-2The major avenues of Chandigarh, with important institutional and commercial buildings located on them. Madhya Marg, Dakshin Marg, Jan Marg, Himalaya Marg, Uttar Marg and Purv Marg are important examples of these. V-3Roads between sectors for fast moving vehicular traffic. Each sector is surrounded either by a V2 or V3. V-4Shopping streets cutting through sectors with shops on either southern side. V-5Circulation roads within sectors. V-6Roads providing access to houses. V-7Foot paths through ?Green belts enabling pedestrians to cross sectors without having to cross vehicular traffic and cycle tracks. V-8Cycle tracks through green spaces.The High Court has noticed that the original notification dated 21 October 2005 was not of a statutory nature and its purpose was only to make an internal arrangement to assign responsibility for maintenance of roads. By classifying certain roads as state highways, the responsibility for maintenance and development was vested in Chandigarh Administration. Since funds were being received from the Central Road Fund, in order to utilise these funds for the maintenance of roads, certain internal roads which pass through the city were declared as state highways in addition to National Highway No 21 which passes through Chandigarh. The High Court observed that these roads are in fact inter-sectoral roads, connecting sectors into which the city is divided. However, even after the notification dated 16 March 2017, National Highway no 21 which passes through the city is as it is. So also is the case with Madhya Marg which passes through the city and connects Panchkula in the State of Haryana and Mullanpur in the State of Punjab. Madhya Marg continues to be a state highway. On these findings, the High Court did not find substance in the challenge and dismissed the writ petition. 6. The judgment of this Court dated 15 December 2016 addresses dangers to life and safety caused by drunken driving on national and state highways and specifically deals with the problem from the perspective of the availability of alcohol. Roads within a metropolitan city essentially provide connectivity within the city. Chandigarh is an illustration. The roads categorized as V1, V2 and V3 are essentially roads within the city. They were categorized as highways by an administrative decision of 21 October 2005 primarily with a view to ensure their maintenance and development by availing of funds available from the Central Road Fund. The alteration in the nomenclature of certain roads, which has been carried out by the subsequent notification dated 16 March 2017, has left unaffected National Highway no 21 which passes through the city and Madhya Marg which connects the States of Haryana and Punjab. The judgment of this Court dated 15 December 2016 prohibits the grant of licences for the sale of liquor along and in proximity of the National and State Highways including those falling within the limits of municipal corporations, cities, towns or local authorities. Directions (i) and (ii) extracted earlier did not prevent the Administration from re-classifying inter-sectoral roads within the city from state highways to major district roads. The exercise carried out by Chandigarh Administration does not breach the directions issued by this Court. It is neither in violation of the terms of the order nor of the purpose and intendment behind those directions. 7. The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court.
### Response:
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### Explanation:
6. The judgment of this Court dated 15 December 2016 addresses dangers to life and safety caused by drunken driving on national and state highways and specifically deals with the problem from the perspective of the availability of alcohol. Roads within a metropolitan city essentially provide connectivity within the city. Chandigarh is an illustration. The roads categorized as V1, V2 and V3 are essentially roads within the city. They were categorized as highways by an administrative decision of 21 October 2005 primarily with a view to ensure their maintenance and development by availing of funds available from the Central Road Fund. The alteration in the nomenclature of certain roads, which has been carried out by the subsequent notification dated 16 March 2017, has left unaffected National Highway no 21 which passes through the city and Madhya Marg which connects the States of Haryana and Punjab. The judgment of this Court dated 15 December 2016 prohibits the grant of licences for the sale of liquor along and in proximity of the National and State Highways including those falling within the limits of municipal corporations, cities, towns or local authorities. Directions (i) and (ii) extracted earlier did not prevent the Administration froml roads within the city from state highways to major district roads. The exercise carried out by Chandigarh Administration does not breach the directions issued by this Court. It is neither in violation of the terms of the order nor of the purpose and intendment behind those directions.The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court.
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CANTONMENT BOARD AND ANOTHER Vs. M.P.S.R.T.C | The Entry in question was to the effect :- taxes on luxury or entertainment or amusement 13. It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs. 100 per annum as provided u/s 142-A of the Government of India Act, 1935 and Rs. 250 per annum under Article 276(2) of the Constitution. The Court repelling the argument held :- The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. 14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality u/s 127(1)(iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own fields. Since u/s 127(1)(iii) of the Municipalities Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power u/s 60 of the Cantonments Act with the previous sanction of the Central Government. Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued u/s 60 of the Cantonments Act and imposition of tax on Motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High Court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. 15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same inasmuch as Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the State Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the proviso will not be entitled to receive the said grant unless if agrees not to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with the right of the Cantonment Board and the Municipality to receive a grant which was being paid by the State Government prior to the commencement of the Taxation Act and the said provision has no connection with the imposition of tax on Motor Vehicle which is governed by Section 3(2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter, we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of Sections 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicle used or kept for use notwithstanding the bar u/s 6. 16. Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune v. Bharat Forge Company Ltd (1995) 3 SCC 434 : AIR1996 SCW 449 and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in as much as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided u/s 7 of the Taxation Act but we are concerned with the livability of tax on Motor Vehicles u/s 3(2) of the Taxation Act. It is nobodys case that no tax was being levied on Motor Vehicles which is used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Contonment limit has been in operation for a fairly long period. Neither these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand. | 1[ds]8. The admitted position that emerges from the facts already narrated are that the Cantoment Act, 1924 is the earliest in point of time which empowered the Cantonment Baord to impose tax with the previous sanction of the Central Government which tax could be imposed in any Municipality in the State where such Cantonment is situated. The Madhya Pradesh Motor Vehicles Taxation Act, 1947 is a special provision dealing with levy of tax on Motor Vehicle which is used or kept for use. There is no provision in the aforesaid Taxation Act for levy of any tax on entry of Motor Vehicles alone. The Municipalities Act of 1961, however authorises imposition of tax on vehicles, boats and animals entering the limits of the Municipality as provided in Section 127(1)(iii) of the said Act.As has been stated earlier under the Taxation Act, tax could be imposed on the Motor Vehicles which is used or kept for use as provided in Section 3(2) of the said Act and there is no provision for imposition of tax on vehicles which is neither used nor kept for use but for mere entry into any municipal limits. When the legislature imposed a ban on levy of tax by any local authority u/s 6 of the Taxation Act what is prohibited is levy of tax which is leviable u/s 3(2) of the Taxation Act. When the same legislature enacted the Municipalities Act in 1961 and authorised the Municipalities to impose tax on vehicles entering the limits of the Municipality u/s 127(1)(iii) they must be presumed to be aware of the provisions of the Taxation Act and leviability of the tax thereunder in respect of Motor Vehicles used or kept for use. The expression vehicle having been defined in Section 2(38) to include a bicycle, a tricycle, motor car and every wheel conveyance which is used or capable of being used on a public street, it is not possible for us to accept the contention of Mr. Agrawal, learned Counsel appearing for the respondents to interpret the same expression to mean vehicles other than the motor vehicles. Since the Taxation Act does not provide for any imposition of tax on entry of the Motor Vehicles within Municipal limits whereas the Municipal Act authorises for such levy u/s 127(1)(iii) we do not find any inconsistency or repugnancy between the two provisions. In other words while under the Motor Vehicles Taxation Act a tax could be imposed on Motor Vehicles used or kept for use by the registering authority, no such imposition can again be made by any local authority including the Municipalities u/s 127(1)(ii) of the Municipalities Act. But so far as the imposition of tax on Motor Vehciels entering into the Municipal limits is concerned, which is provided u/s 127(1)(iii), of the Municipalities Act the said provision can not be said to be repugnant to the special statute in respect of Motor Vehicles, namely, the Motor Vehicles Taxation Act. It has been stated by this Court in the case of Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others, that the principle of statutory interpretation, namely, later laws abrogate earlier contrary laws is subject to exception that a general provision does not derogate from a special one. This would mean that where a literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it is presumed that the situation was intended to be continued to be dealt with by the specific provision rather than the later general one. In other words if the Taxation Act would have contained a provision authorising imposition of Entry Tax on Motor Vehicle then certainly the later general Act, namely, the Municipalities Act even if by making a provision for imposition of entry tax on vehicles entering into the Municipal limits would not have operated. But since the special law, namely, the Taxation Act does not have any provision authorising imposition of tax on entry of Motor Vehicles and the later general provision, namely, the Municipalities Act, provides for imposition of the entry tax on Motor Vehicles. The said provision would remain valid and would be applicable and there would be no bar for the Municipality to impose entry tax on all vehicles including Motor Vehicles for entering into the limits of the Municipalities. This construction being the only harmonious construction by which both the provisions remain operative, it is the duty of the Court to adopt such construction. There is no dispute with the proposition advanced by Mr. Lekhi, learned senior counsel with regard to theory implied repeal. This theory the learned senior counsel advanced since the Municipalities Act did not repeal the provisions of the Motor Vehicles Taxation Act. It was held by this Court of Yogender Pal Singh and others Vs. Union of India others,It is well settled that when a Competent Authority makes a new law which is totally inconsistent with the earlier law and the two cannot stand together any longer it must be construed that the earlier law has been repealed by necessary implication by the later law.9. In considering the applicability of Section 6 of the General Clauses Act 1897 in the case of State of Orissa Vs. M.A. Tulloch and Co., this Court had observed :-The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supresede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the words repeal in the later statute.10. The aforesaid observation no doubt has been made while analysing the effect of Section 6 of the General Clauses Act and the continuance of rights accrued and liabilities incurred under the superseded enactment and thus has no direct application to the case in hand.12. But in view of our conclusion that there is no repugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127(1)(iii) of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have no application. In this connection it would be appropriate for us to notice one decision of this Court in the case of The Western India Theatres Ltd. Vs. The Cantonment Board, Poona, Cantonment, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of Government of India Act, 1935 was under consideration.13. It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs. 100 per annum as provided u/s 142-A of the Government of India Act, 1935 and Rs. 250 per annum under Article 276(2) of the Constitution. The Court repelling the argument held :-The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling.14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality u/s 127(1)(iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own fields. Since u/s 127(1)(iii) of the Municipalities Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power u/s 60 of the Cantonments Act with the previous sanction of the Central Government. Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued u/s 60 of the Cantonments Act and imposition of tax on Motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High Court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act.15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same inasmuch as Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the State Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the proviso will not be entitled to receive the said grant unless if agrees not to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with the right of the Cantonment Board and the Municipality to receive a grant which was being paid by the State Government prior to the commencement of the Taxation Act and the said provision has no connection with the imposition of tax on Motor Vehicle which is governed by Section 3(2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter, we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of Sections 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicle used or kept for use notwithstanding the bar u/s 6.This contention is wholly unsustainable in law in as much as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided u/s 7 of the Taxation Act but we are concerned with the livability of tax on Motor Vehicles u/s 3(2) of the Taxation Act. It is nobodys case that no tax was being levied on Motor Vehicles which is used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Contonment limit has been in operation for a fairly long period. Neither these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand. | 1 | 4,733 | 2,200 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
The Entry in question was to the effect :- taxes on luxury or entertainment or amusement 13. It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs. 100 per annum as provided u/s 142-A of the Government of India Act, 1935 and Rs. 250 per annum under Article 276(2) of the Constitution. The Court repelling the argument held :- The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. 14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality u/s 127(1)(iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own fields. Since u/s 127(1)(iii) of the Municipalities Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power u/s 60 of the Cantonments Act with the previous sanction of the Central Government. Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued u/s 60 of the Cantonments Act and imposition of tax on Motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High Court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. 15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same inasmuch as Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the State Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the proviso will not be entitled to receive the said grant unless if agrees not to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with the right of the Cantonment Board and the Municipality to receive a grant which was being paid by the State Government prior to the commencement of the Taxation Act and the said provision has no connection with the imposition of tax on Motor Vehicle which is governed by Section 3(2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter, we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of Sections 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicle used or kept for use notwithstanding the bar u/s 6. 16. Coming to the conclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior counsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune v. Bharat Forge Company Ltd (1995) 3 SCC 434 : AIR1996 SCW 449 and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law in as much as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided u/s 7 of the Taxation Act but we are concerned with the livability of tax on Motor Vehicles u/s 3(2) of the Taxation Act. It is nobodys case that no tax was being levied on Motor Vehicles which is used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Contonment limit has been in operation for a fairly long period. Neither these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand.
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has no direct application to the case in hand.12. But in view of our conclusion that there is no repugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127(1)(iii) of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have no application. In this connection it would be appropriate for us to notice one decision of this Court in the case of The Western India Theatres Ltd. Vs. The Cantonment Board, Poona, Cantonment, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of Government of India Act, 1935 was under consideration.13. It was contended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs. 100 per annum as provided u/s 142-A of the Government of India Act, 1935 and Rs. 250 per annum under Article 276(2) of the Constitution. The Court repelling the argument held :-The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling.14. Thus considered, the tax leviable on Motor Vehicles when used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality u/s 127(1)(iii) of the Madhya Pradesh Municipalities Act, 1961 and there is no repugnancy between the two and both the provisions can therefore operate in its own fields. Since u/s 127(1)(iii) of the Municipalities Act, Municipality could levy a tax on Motor Vehicles entering the limits of the Municipality, the same could be levied by the Cantonment Board in exercise of its power u/s 60 of the Cantonments Act with the previous sanction of the Central Government. Consequently, notifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid notifications issued u/s 60 of the Cantonments Act and imposition of tax on Motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High Court in our opinion committed error in striking down those notifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act.15. So far as the contention of Mr. Lekhi, the learned senior counsel with regard to the proviso to Section 7 of the Taxation Act is concerned, we however, do not find any force in the same inasmuch as Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the State Government to any such Board or Committee immediately before the commencement of the Taxation Act then the said grant shall be continued to be paid. But the Cantonment Board by virtue of the proviso will not be entitled to receive the said grant unless if agrees not to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with the right of the Cantonment Board and the Municipality to receive a grant which was being paid by the State Government prior to the commencement of the Taxation Act and the said provision has no connection with the imposition of tax on Motor Vehicle which is governed by Section 3(2) and the bar on such imposition which is contained in Section 6 of the Taxation Act. In this view of the matter, we are unable to accept the contention of Mr. Lekhi, the learned senior counsel that conjoint reading of Sections 6 and 7 and its proviso would lead to the conclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicle used or kept for use notwithstanding the bar u/s 6.This contention is wholly unsustainable in law in as much as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided u/s 7 of the Taxation Act but we are concerned with the livability of tax on Motor Vehicles u/s 3(2) of the Taxation Act. It is nobodys case that no tax was being levied on Motor Vehicles which is used or kept for use u/s 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of Motor Vehicles into the Contonment limit has been in operation for a fairly long period. Neither these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand.
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SUKH DUTT RATRA & ANR Vs. STATE OF HIMACHAL PRADESH & ORS | the respondents property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution… 20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact situation, this court held as follows: There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. 21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the States position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings. 22. This court is also not moved by the States contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Courts intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment. 23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of oral consent to be baseless and outlined the responsibility of the State: 12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension. 24. And with regards to the contention of delay and laches, this court went on to hold: 2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. 12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]. 25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative [Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 ; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191 ; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807] of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. | 1[ds]14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the Kings Bench in Entick v. Carrington [1765] EWHC (KB) 198 and by this court in Wazir Chand v. The State of Himachal Pradesh 1955 (1) SCR 408. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State of Punjab 1962 (2) SCR 69 this court rejected the contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors. 1989 (1) SCR 176 , held:A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression re-entry in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a legal pedigree.16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains – can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.17. When seen holistically, it is apparent that the States actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the courts directions to those who specifically approached the courts. The States lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.18. There is a welter of precedents on delay and laches which conclude either way – as contended by both sides in the present dispute – however, the specific factual matrix compels this court to weigh in favour of the appellant-land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a limitation to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service 1969 (1) SCR 808 , held:Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation – held:Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.This is a case where we find utter lack of legal authority for deprivation of the respondents property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution…21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the States position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.22. This court is also not moved by the States contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Courts intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of oral consent to be baseless and outlined the responsibility of the State:12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.24. And with regards to the contention of delay and laches, this court went on to hold:2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22].25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative [Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 ; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191 ; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807] of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. | 1 | 4,120 | 2,270 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the respondents property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution… 20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact situation, this court held as follows: There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. 21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the States position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings. 22. This court is also not moved by the States contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Courts intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment. 23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of oral consent to be baseless and outlined the responsibility of the State: 12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension. 24. And with regards to the contention of delay and laches, this court went on to hold: 2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. 12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]. 25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative [Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 ; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191 ; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807] of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case.
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compensation – held:Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.This is a case where we find utter lack of legal authority for deprivation of the respondents property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution…21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the States position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.22. This court is also not moved by the States contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Courts intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of oral consent to be baseless and outlined the responsibility of the State:12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.24. And with regards to the contention of delay and laches, this court went on to hold:2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22].25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative [Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 ; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191 ; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807] of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case.
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S.S.M. Bros. Private Limited Vs. Commissioner of Income Tax | N SANTOSH HEGDE J. These appeals by special leave impugn the correctness of the view taken by a Division Bench of the High Court at Madras, TC No. 146 of 1979 and followed in TC No. 140 of 1980. The questions before the High Court were"1. Whether, on the facts and in the circumstances of the case, it has been rightly held by the Tribunal that the assessee was entitled to the higher rate of development rebate under s. 33(1)(b)(B)(i) in respect of the machinery used by it in its business ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee-company was engaged in the construction, manufacture or production of the textiles (otherwise processed) so as to be entitled for the higher rate of development rebate ?" * The Tribunal in its order has stated that the assessee-appellant purchased cloth and on that cloth embroidery work was done with the aid of imported machines. In some cases, the cloth was thereafter dyed again to obtain a uniform colour. It said that after the embroidery the finished product is something which in the realm of textile would be considered to be cloth entirely different from the basic cloth on which such embroidery work was done. Upon this basis, it came to the conclusion that the assessee was entitled to the benefit of development rebate at an enhanced rate under the provisions of s. 33(1)(b)(B)(i) of the IT Act, 1961 (the Act). It said that the mere fact that the assessee started with basic cloth would not bar the assessee from being entitled to the higher development rebate because the end-product of the assessee could be described as textile otherwise processed within the meaning of Item 32 of Sch. V of the ActThe High Court took the contrary view. It said that the operations that were carried on by the assessee on the cloth purchased by it were not in the nature of manufacturing or processing or production operations nor could such operations relate to the manufacture or production of textile. The cloth which would be covered by the expression textile had already been manufactured or produced by someone else, it was merely purchased by the assessee. That cloth, even after being embroidered and dyed, was not transformed into any other different or distinct commercial article or product by essentially retaining its basic character and structure and was identifiable as cloth. The operation done by the assessee on the cloth did not bring into existence a commercially different and distinct commodity from the feed-in materialSec. 33(1)(b)(B)(i), insofar as it is relevant, reads thus "Where the machinery or plant is installed for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, " * Item 32 of the Fifth Schedule to the Act reads thus "32. Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."When both the provisions are read together this is the result : where the machinery or plant is installed for the purpose of the business of production of textiles, including those dyed, printed or otherwise processed, made wholly or mainly out of cotton, the assessee is entitled to the deduction of the development rebate thereunder. What is important is that this development rebate is available if the machinery or plant is installed for the purposes of the business of the production of textiles, including those otherwise processed. If the machinery or plant is required to be utilised in the production of such textiles, at whatever stage, the assessee is entitled to the benefit of the development rebate. It is not disputed fairly that if the assessee had been producing the embroidered cloth starting from scratch, that is, by starting with cotton, this machinery would have been entitled to be considered for the purposes of such development rebateWe are of the view that it makes no difference that in the particular case, the assessee buys the cloth and then processes it, using the machinery, by embroidering it and, in some cases, by dyeing it. The assessee utilises the machinery in the production of processed textiles. Therefore, the machinery is entitled to the development rebate under s. 33(1)(b)(B)(i). | 1[ds]When both the provisions are read together this is the result : where the machinery or plant is installed for the purpose of the business of production of textiles, including those dyed, printed or otherwise processed, made wholly or mainly out of cotton, the assessee is entitled to the deduction of the development rebate thereunder. What is important is that this development rebate is available if the machinery or plant is installed for the purposes of the business of the production of textiles, including those otherwise processed. If the machinery or plant is required to be utilised in the production of such textiles, at whatever stage, the assessee is entitled to the benefit of the development rebate. It is not disputed fairly that if the assessee had been producing the embroidered cloth starting from scratch, that is, by starting with cotton, this machinery would have been entitled to be considered for the purposes of such development rebateWe are of the view that it makes no difference that in the particular case, the assessee buys the cloth and then processes it, using the machinery, by embroidering it and, in some cases, by dyeing it. The assessee utilises the machinery in the production of processed textiles. Therefore, the machinery is entitled to the development rebate under s. 33(1)(b)(B)(i). | 1 | 847 | 254 | ### 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:
N SANTOSH HEGDE J. These appeals by special leave impugn the correctness of the view taken by a Division Bench of the High Court at Madras, TC No. 146 of 1979 and followed in TC No. 140 of 1980. The questions before the High Court were"1. Whether, on the facts and in the circumstances of the case, it has been rightly held by the Tribunal that the assessee was entitled to the higher rate of development rebate under s. 33(1)(b)(B)(i) in respect of the machinery used by it in its business ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee-company was engaged in the construction, manufacture or production of the textiles (otherwise processed) so as to be entitled for the higher rate of development rebate ?" * The Tribunal in its order has stated that the assessee-appellant purchased cloth and on that cloth embroidery work was done with the aid of imported machines. In some cases, the cloth was thereafter dyed again to obtain a uniform colour. It said that after the embroidery the finished product is something which in the realm of textile would be considered to be cloth entirely different from the basic cloth on which such embroidery work was done. Upon this basis, it came to the conclusion that the assessee was entitled to the benefit of development rebate at an enhanced rate under the provisions of s. 33(1)(b)(B)(i) of the IT Act, 1961 (the Act). It said that the mere fact that the assessee started with basic cloth would not bar the assessee from being entitled to the higher development rebate because the end-product of the assessee could be described as textile otherwise processed within the meaning of Item 32 of Sch. V of the ActThe High Court took the contrary view. It said that the operations that were carried on by the assessee on the cloth purchased by it were not in the nature of manufacturing or processing or production operations nor could such operations relate to the manufacture or production of textile. The cloth which would be covered by the expression textile had already been manufactured or produced by someone else, it was merely purchased by the assessee. That cloth, even after being embroidered and dyed, was not transformed into any other different or distinct commercial article or product by essentially retaining its basic character and structure and was identifiable as cloth. The operation done by the assessee on the cloth did not bring into existence a commercially different and distinct commodity from the feed-in materialSec. 33(1)(b)(B)(i), insofar as it is relevant, reads thus "Where the machinery or plant is installed for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, " * Item 32 of the Fifth Schedule to the Act reads thus "32. Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."When both the provisions are read together this is the result : where the machinery or plant is installed for the purpose of the business of production of textiles, including those dyed, printed or otherwise processed, made wholly or mainly out of cotton, the assessee is entitled to the deduction of the development rebate thereunder. What is important is that this development rebate is available if the machinery or plant is installed for the purposes of the business of the production of textiles, including those otherwise processed. If the machinery or plant is required to be utilised in the production of such textiles, at whatever stage, the assessee is entitled to the benefit of the development rebate. It is not disputed fairly that if the assessee had been producing the embroidered cloth starting from scratch, that is, by starting with cotton, this machinery would have been entitled to be considered for the purposes of such development rebateWe are of the view that it makes no difference that in the particular case, the assessee buys the cloth and then processes it, using the machinery, by embroidering it and, in some cases, by dyeing it. The assessee utilises the machinery in the production of processed textiles. Therefore, the machinery is entitled to the development rebate under s. 33(1)(b)(B)(i).
### Response:
1
### Explanation:
When both the provisions are read together this is the result : where the machinery or plant is installed for the purpose of the business of production of textiles, including those dyed, printed or otherwise processed, made wholly or mainly out of cotton, the assessee is entitled to the deduction of the development rebate thereunder. What is important is that this development rebate is available if the machinery or plant is installed for the purposes of the business of the production of textiles, including those otherwise processed. If the machinery or plant is required to be utilised in the production of such textiles, at whatever stage, the assessee is entitled to the benefit of the development rebate. It is not disputed fairly that if the assessee had been producing the embroidered cloth starting from scratch, that is, by starting with cotton, this machinery would have been entitled to be considered for the purposes of such development rebateWe are of the view that it makes no difference that in the particular case, the assessee buys the cloth and then processes it, using the machinery, by embroidering it and, in some cases, by dyeing it. The assessee utilises the machinery in the production of processed textiles. Therefore, the machinery is entitled to the development rebate under s. 33(1)(b)(B)(i).
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Indian Explosives Ltd. & Another Vs. Coal India Ltd. & Others | therein by the respondent - Coal India Ltd. It was urged that the said supplementary clause clearly nullifies the clear understanding and terms of the original contract contained in Clause XV. Clase XV of the Original Contract and the supplementary clause inserted are in the following terms: CLAUSE XV - PERFORMANCE 1(A). Review of your product performance will be made on the basis of fragmentation/muck piling costs per Cu.M. and Capacity improvement achieved for the total system. In the event of your Product not providing satisfactory results mutually agreed upon, proportionate reduction in prices for the Products which failed will be made. You are to provide optimum blast design for each mine benchwise and render all related including provisioning of vibration monitoring. In the event of failure of Blast, the cost of Explosives used in the Blast, and all other incidental charges will be recovered from you. B) If there is a complaint for low powder factor, you must be penalized/ supply restricted for continuous poor performance. The management of the respective subsidiary companies, would then divert the balance quantity (supposed to be allotted to you and there is a product complaint for low powder factor etc. against your past supplies) to the other manufacturers (on pro-rata basis) whose products are having better powder factor. This diversion of quantities due to poor product performance should be made with the approval of D(T) of concerned subsidiary companies. 2. The limits of Velocity of Detonation, Density and Cap/Booster Sensitivity which will govern at the time of Random Testing of the products ordered on you are indicated below:- Sl.Particulars of Test to be conductedLimit of RangesEmulsionSlurry 1.Velocity of Detonation (m/sec.)Fresh SampleAfter sleepage in water (24 hrs.)4000+/- 5004000+/- 500800+/- 500800+/- 500 2.Density (gm/cc)Fresh SampleAfter sleepage in water (24 hrs.)1.15+/- 0.051.15+/- 0.051.15+/- 0.101.15+/- 0.10 3.Cap/Booster SensitivityFresh SampleAfter sleepage in water (24 hrs.)Sample should fire with 100 gm. Cast Booster.Sample should fire with 100 gm. Cast Booster. *** SUPPLEMENTARY CLAUSE XV (PERFORMANCE CLAUSE) The weighted average Powder Factor separately for Coal and OB for 10 years commencing from 2004-05 to 1995-96 and that of 2004-05 shall be worked out mine-wise. The higher of weighted average Powder Factor for 10(ten) years (from 2004-05 to 1995-96] and that of 2004-05 shall be hereinafter referred to as the minimum yield. The mine-wise achievement of Powder Factor should not be less than the minimum yield referred to above. For every 1% (one per cent) or part thereof, decrease in Powder Factor of Coal/OB compared to the minimum yield as above, commensurate deduction of the cost of explosives and accessories shall be made. Such computation for deduction shall be made on monthly basis. 4. The difference between Clause XV as per the original agreement and the supplementary clause inserted is that while under the original agreement the quality/effectiveness of the product supplied was to be tested by means of mutual negotiations and discussions in the event of a complaint, under the supplementary clause, the powder factor which was determinative of the quality of the product was specified. 5. Coal India Limited is a Government Company and the majority shareholding is still with the Government of India. It is the Government of India, who, therefore, commands a majority in the Board of Directors. Being a Government Company it is amenable to Government directions and control and, therefore, has been held by this Court in Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625 to be a State within the meaning of Article 12 of the Constitution of India. 6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant. 7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement. 8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us is self-evident from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly. | 1[ds]6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us ist from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly. | 1 | 1,273 | 444 | ### 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:
therein by the respondent - Coal India Ltd. It was urged that the said supplementary clause clearly nullifies the clear understanding and terms of the original contract contained in Clause XV. Clase XV of the Original Contract and the supplementary clause inserted are in the following terms: CLAUSE XV - PERFORMANCE 1(A). Review of your product performance will be made on the basis of fragmentation/muck piling costs per Cu.M. and Capacity improvement achieved for the total system. In the event of your Product not providing satisfactory results mutually agreed upon, proportionate reduction in prices for the Products which failed will be made. You are to provide optimum blast design for each mine benchwise and render all related including provisioning of vibration monitoring. In the event of failure of Blast, the cost of Explosives used in the Blast, and all other incidental charges will be recovered from you. B) If there is a complaint for low powder factor, you must be penalized/ supply restricted for continuous poor performance. The management of the respective subsidiary companies, would then divert the balance quantity (supposed to be allotted to you and there is a product complaint for low powder factor etc. against your past supplies) to the other manufacturers (on pro-rata basis) whose products are having better powder factor. This diversion of quantities due to poor product performance should be made with the approval of D(T) of concerned subsidiary companies. 2. The limits of Velocity of Detonation, Density and Cap/Booster Sensitivity which will govern at the time of Random Testing of the products ordered on you are indicated below:- Sl.Particulars of Test to be conductedLimit of RangesEmulsionSlurry 1.Velocity of Detonation (m/sec.)Fresh SampleAfter sleepage in water (24 hrs.)4000+/- 5004000+/- 500800+/- 500800+/- 500 2.Density (gm/cc)Fresh SampleAfter sleepage in water (24 hrs.)1.15+/- 0.051.15+/- 0.051.15+/- 0.101.15+/- 0.10 3.Cap/Booster SensitivityFresh SampleAfter sleepage in water (24 hrs.)Sample should fire with 100 gm. Cast Booster.Sample should fire with 100 gm. Cast Booster. *** SUPPLEMENTARY CLAUSE XV (PERFORMANCE CLAUSE) The weighted average Powder Factor separately for Coal and OB for 10 years commencing from 2004-05 to 1995-96 and that of 2004-05 shall be worked out mine-wise. The higher of weighted average Powder Factor for 10(ten) years (from 2004-05 to 1995-96] and that of 2004-05 shall be hereinafter referred to as the minimum yield. The mine-wise achievement of Powder Factor should not be less than the minimum yield referred to above. For every 1% (one per cent) or part thereof, decrease in Powder Factor of Coal/OB compared to the minimum yield as above, commensurate deduction of the cost of explosives and accessories shall be made. Such computation for deduction shall be made on monthly basis. 4. The difference between Clause XV as per the original agreement and the supplementary clause inserted is that while under the original agreement the quality/effectiveness of the product supplied was to be tested by means of mutual negotiations and discussions in the event of a complaint, under the supplementary clause, the powder factor which was determinative of the quality of the product was specified. 5. Coal India Limited is a Government Company and the majority shareholding is still with the Government of India. It is the Government of India, who, therefore, commands a majority in the Board of Directors. Being a Government Company it is amenable to Government directions and control and, therefore, has been held by this Court in Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625 to be a State within the meaning of Article 12 of the Constitution of India. 6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant. 7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement. 8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us is self-evident from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly.
### Response:
1
### Explanation:
6. This Court has consistently taken the view that a private contract entered by the State, so long as it disclose a public law element would have to meet the test of Article 14 of the Constitution of India so far as its terms and conditions and application thereof are concerned. In view of the Corporate structure (shareholdings) of Coal India Limited and the decision of this Court in Coal India Ltd. (supra), we do not see how the fairness of the actions of Coal India Limited called into question in the writ petitions would not be liable to be tested on the anvil of Article 14 of the Constitution of India if we are to hold that the unilateral insertion of the supplementary clause in the contract between the parties amounted to a novation of the contract and the changed terms have been given effect to the prejudice of the appellant7. Having perused Clause XV of the Original agreement and the Supplementary Clause (extracted above) we are inclined to hold that the Supplementary Clause clearly travels beyond the intent of the parties as expressed in the original agreement. The said clause has been thrust upon the contractor(s) and has been worked, as subsequent events discloses, to his/its detriment. The State cannot be expected to conduct its affairs even in commercial matters in a manner which expressly negates the mandate of Article 14 of the Constitution. In the present case, not only that, the supplementary clause has been given retrospective effect from the date of the original agreement8. It is, therefore, our considered view that the supplementary clause constitutes a novation of the contract which could not have been done unilaterally and such unilateral action on the part of the Coal India Limited violates Article 14 of the Constitution of India and, therefore, liable to correction in exercise of the writ jurisdiction. No question of appreciation of evidence can and does arise to answer the above question which to us ist from a mere examination of the two clauses in question. If the action of the State is per se arbitrary as we are inclined to hold in the present case we do not think it to be in consonance with the cause of justice to relegate the aggrieved party to an alternative remedy as has been done by the High Court. To secure justice is the ultimate aim of all principle of law and we must hold accordingly.
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Sunflag Iron & Steel Company Limited & Another Vs. Additional Collector of Central Excise & Others | fabrication and machining work in respect of which it used to sell steel structurals and also carry out job work. The operations carried out on structural steel plates and flats consisted of cutting to sizes, drilling holes to enable bolting, welding to facilitate further assembly at erection sites and applying shop paint to prevent rusting during storage. It was contended by the assessee that these processes and operations did not result in the manufacture of new goods, that the articles in question did not undergo any material change in commercial parlance and in the trade the articles in question continue to be the same even after the said operations. It was also contended that, as a result of the said operations, no different commercial article or commodity came into existence. After examining the material on record, the Tribunal found that the contract pertained to fabrication of structures according to drawings and specifications with one coat of shop paint and delivery of fabricated structures to the erection sites. In other words, the assessee was a company which carried out the work of fabrication and work in its factory and supplied them to its customer at the erection site by carrying out several processes on raw steel. The Tribunal pointed out that if the works carried out by the appellants were considered in isolation, one might be led into concluding that it does not constitute manufacture, but it has to be remembered that the work carried out by the appellants is of highly intricate, specialised and technical nature. After the processes were done by the appellants, the raw material consisting of beams, angles, etc. get such shape and character that they could be readily fitted into structures. The Tribunal drew an analogy with pre-fabricated houses, or a walking stick, or a toy made from wood and held that the identity of such articles must be held to be different from raw materials which have gone into their making; such activities would certainly be called manufacturing activities. In fact, this judgment was considered carefully by the CEGAT in the case of Aruna Industries (supra) and, in our view, rightly distinguished. 25. It was rightly pointed out in Aruna Industries (supra) that the CEGAT had considered the terms of contract in Bokaro (supra) and based its decision on the nature of work to be carried out. The terms of contract in Bokaro showed that raw materials were only cut to size, welded, fixed and fabricated according to drawings and thereafter assembled structures were delivered at the site. These facts do distinguish the judgment in Bokaro (supra). In our judgment, considering the peculiar nature of the terms of contract before it, the Tribunal rightly took the view in Bokaro that processes carried out on the raw steel for fabricating them into structurals, which were to be delivered at site, indicated that the assesses therein was carrying out manufacture of goods. Such is not the case before us. 26. The judgment rendered by the CEGAT in the case of Richardson & Cruddas Ltd. (supra) also does not carry the matter in favour of the Revenue. In fact the Tribunal observes that in Aruna Industries case the contracts comprised of construction and completion of works. There was a sale of raw materials by one party to the other; it was a composite contract for work and labour and not for sale of goods. It further says that the assessee had erected structures on the site allotted to them by VSP and that since the assessees were only erecting a construction and were fabricating the materials on the spot, the workers were merely "birds of passage" and, therefore, they cannot be considered as workers within a factory and the structures cannot be deemed to be fabricated in a "factory". In the case of the assessee before us, these are precisely the facts. The learned Counsel for the Revenue is not able to show us that, in the case of assessee before us, there is a contract for sale of goods or that the fabricated pre-structurals were carried out/manufactured at some factory and delivered at site of the petitioner. On the other hand, it was fairly conceded that the contracts in both the cases before us involved erection and construction of the shed and cold rolling steel mill for which purpose the contractor at site fabricated certain duty paid raw materials which were supplied by the assessee. These factors, in our judgment, did not exist in the case of Richardson & Cruddas (supra) and, therefore, the CEGAT had no difficulty holding against the assessee. In our view, even this judgment does not militate against view taken in Aruna Industries. 27. Having considered the matter from all these aspects, we are satisfied that the cases of the petitioners before us fall within the matrix exactly similar to the one in Aruna Industries and had the assessing authorities applied their minds carefully to the judgment in Aruna Industries case, there would not have been difficulty in arriving at the correct decision. Having not done so, there is an error. 28. We are, therefore, of the view that in both the cases, fabrication of structurals at the site of the principal by using raw materials supplied by the principal did not amount to "manufacture", nor was it done at "factory", nor were the goods saleable or capable of being brought to the market for being bought or sold. We further notice that in both the cases the fabrication was with the immediate purpose of using in the factory shed or steel cold rolling mill which were being constructed and there was never an intention to sell it in the market. These facts, in our judgment, make it amply clear that the materials fabricated at the site by the contractors in both the cases were not exigible to excise duty under section 3 of the Act. Hence, the orders in both the cases need to be set aside in exercise of writ jurisdiction. | 1[ds]Considering the total absence of reference to judgment of the CEGAT in the case of M/s. Aruna Industries (supra), which is pat on the point (as we shall presently see), we are inclined to agree with the learned Counsel for the petitioners. Though not articulated in words, in substance and spirit both the impugned orders appear to follow the CBEC guidelines by ignoring the binding judgment of the CEGAT.The circular issued by the CBEC is made binding on the Excise authorities by reason of sectionof the Act. Sectionprovides that in its discretion, the CBEC may, for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit and that such officers and all others persons employed in the execution of the Act shall observe and follow such orders, instructions and directions of the CBEC.9. Turning then to the binding nature of the judgments of the CEGAT, we find that the proposition has never been doubted that the judgments of the CEGAT are binding on the revenue authorities. In the case of (Morarji Gokuldas Spinning Weaving Co. Ltd. and another v. Union of India and others)7, reported in 1981 E.L.T. 429(Bom.), it was pointed out by a learned Single Judge of this Court that an order passed by the Central Government in exercise of its revisional powers (under the law as it stood when no appeal was provided) was binding on the excise authorities. In the case of (Collector of Central Excise,v. Pharmaceutial Capsules Laboratories, Bombay)8, reported in 1986(25) E.L.T. 211, which was a case after the CEGAT was established, the CEGAT itself took a view that judgments of the CEGAT are binding on the revenue authorities and even the fact that they had merely filed an appeal against a particular judgment did not detract from its bindingCirculars/Orders or trade notices are not binding on the assesses at all and their efficacy and legality is always open for challenge at the instance of them. As far as the judgments rendered by the CEGAT are concerned, they are equally binding on the assesses as well as the Department. In a contest, therefore, the Circulars/guidelines/orders or trade notices issued under sectionmust necessarily yield. Thus, we hold that all officers functioning under the Act are bound by the judgments rendered by the CEGAT as long as such judgments are not stayed or reversed by a superior forum i.e. the High Court or the Supreme Court. We also hold that if at all there is a situation of conflict between a circular/guideline/order or trade notice issued under sectionof the Act and a binding judgment of the CEGAT, it is the binding judgment of the CEGAT which has to be followed by the authorities under the Act. The observations of the Division Bench of this Court in the case of (Yashwant Sahakari Sakhar Karkhane Ltd. v. Union of India and others)16, reported in 1986(26) E.L.T. 904(Bom.) fully support the view which we are inclined to take. It is an elementary proposition that an administrative circular issued by an authority, however high, can never override a binding judgment of judicial or quasi judicial authority. This is the quintessence of rule of law.In the facts and circumstances of the case, therefore, we are inclined to agree with the contentions of Mr. Thakur that driving the petitioners to the appellate authorities would be of no use. Faced with the circulars/guidelines/orders or trade notices under sectionof the Act, which have already taken a view in the matter, the assessee would have little chance to persuade the departmental authorities to take a contrary view. Mr. Thakur is right when he contends that there is no equally efficacious alternate remedy. Hence, we are of the view that these writ petitions need to be entertained.Having considered the matter from all these aspects, we are satisfied that the cases of the petitioners before us fall within the matrix exactly similar to the one in Aruna Industries and had the assessing authorities applied their minds carefully to the judgment in Aruna Industries case, there would not have been difficulty in arriving at the correct decision. Having not done so, there is an error.We are, therefore, of the view that in both the cases, fabrication of structurals at the site of the principal by using raw materials supplied by the principal did not amount to "manufacture", nor was it done at "factory", nor were the goods saleable or capable of being brought to the market for being bought or sold. We further notice that in both the cases the fabrication was with the immediate purpose of using in the factory shed or steel cold rolling mill which were being constructed and there was never an intention to sell it in the market. These facts, in our judgment, make it amply clear that the materials fabricated at the site by the contractors in both the cases were not exigible to excise duty under section 3 of the Act. Hence, the orders in both the cases need to be set aside in exercise of writ jurisdiction. | 1 | 7,933 | 969 | ### 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:
fabrication and machining work in respect of which it used to sell steel structurals and also carry out job work. The operations carried out on structural steel plates and flats consisted of cutting to sizes, drilling holes to enable bolting, welding to facilitate further assembly at erection sites and applying shop paint to prevent rusting during storage. It was contended by the assessee that these processes and operations did not result in the manufacture of new goods, that the articles in question did not undergo any material change in commercial parlance and in the trade the articles in question continue to be the same even after the said operations. It was also contended that, as a result of the said operations, no different commercial article or commodity came into existence. After examining the material on record, the Tribunal found that the contract pertained to fabrication of structures according to drawings and specifications with one coat of shop paint and delivery of fabricated structures to the erection sites. In other words, the assessee was a company which carried out the work of fabrication and work in its factory and supplied them to its customer at the erection site by carrying out several processes on raw steel. The Tribunal pointed out that if the works carried out by the appellants were considered in isolation, one might be led into concluding that it does not constitute manufacture, but it has to be remembered that the work carried out by the appellants is of highly intricate, specialised and technical nature. After the processes were done by the appellants, the raw material consisting of beams, angles, etc. get such shape and character that they could be readily fitted into structures. The Tribunal drew an analogy with pre-fabricated houses, or a walking stick, or a toy made from wood and held that the identity of such articles must be held to be different from raw materials which have gone into their making; such activities would certainly be called manufacturing activities. In fact, this judgment was considered carefully by the CEGAT in the case of Aruna Industries (supra) and, in our view, rightly distinguished. 25. It was rightly pointed out in Aruna Industries (supra) that the CEGAT had considered the terms of contract in Bokaro (supra) and based its decision on the nature of work to be carried out. The terms of contract in Bokaro showed that raw materials were only cut to size, welded, fixed and fabricated according to drawings and thereafter assembled structures were delivered at the site. These facts do distinguish the judgment in Bokaro (supra). In our judgment, considering the peculiar nature of the terms of contract before it, the Tribunal rightly took the view in Bokaro that processes carried out on the raw steel for fabricating them into structurals, which were to be delivered at site, indicated that the assesses therein was carrying out manufacture of goods. Such is not the case before us. 26. The judgment rendered by the CEGAT in the case of Richardson & Cruddas Ltd. (supra) also does not carry the matter in favour of the Revenue. In fact the Tribunal observes that in Aruna Industries case the contracts comprised of construction and completion of works. There was a sale of raw materials by one party to the other; it was a composite contract for work and labour and not for sale of goods. It further says that the assessee had erected structures on the site allotted to them by VSP and that since the assessees were only erecting a construction and were fabricating the materials on the spot, the workers were merely "birds of passage" and, therefore, they cannot be considered as workers within a factory and the structures cannot be deemed to be fabricated in a "factory". In the case of the assessee before us, these are precisely the facts. The learned Counsel for the Revenue is not able to show us that, in the case of assessee before us, there is a contract for sale of goods or that the fabricated pre-structurals were carried out/manufactured at some factory and delivered at site of the petitioner. On the other hand, it was fairly conceded that the contracts in both the cases before us involved erection and construction of the shed and cold rolling steel mill for which purpose the contractor at site fabricated certain duty paid raw materials which were supplied by the assessee. These factors, in our judgment, did not exist in the case of Richardson & Cruddas (supra) and, therefore, the CEGAT had no difficulty holding against the assessee. In our view, even this judgment does not militate against view taken in Aruna Industries. 27. Having considered the matter from all these aspects, we are satisfied that the cases of the petitioners before us fall within the matrix exactly similar to the one in Aruna Industries and had the assessing authorities applied their minds carefully to the judgment in Aruna Industries case, there would not have been difficulty in arriving at the correct decision. Having not done so, there is an error. 28. We are, therefore, of the view that in both the cases, fabrication of structurals at the site of the principal by using raw materials supplied by the principal did not amount to "manufacture", nor was it done at "factory", nor were the goods saleable or capable of being brought to the market for being bought or sold. We further notice that in both the cases the fabrication was with the immediate purpose of using in the factory shed or steel cold rolling mill which were being constructed and there was never an intention to sell it in the market. These facts, in our judgment, make it amply clear that the materials fabricated at the site by the contractors in both the cases were not exigible to excise duty under section 3 of the Act. Hence, the orders in both the cases need to be set aside in exercise of writ jurisdiction.
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Considering the total absence of reference to judgment of the CEGAT in the case of M/s. Aruna Industries (supra), which is pat on the point (as we shall presently see), we are inclined to agree with the learned Counsel for the petitioners. Though not articulated in words, in substance and spirit both the impugned orders appear to follow the CBEC guidelines by ignoring the binding judgment of the CEGAT.The circular issued by the CBEC is made binding on the Excise authorities by reason of sectionof the Act. Sectionprovides that in its discretion, the CBEC may, for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit and that such officers and all others persons employed in the execution of the Act shall observe and follow such orders, instructions and directions of the CBEC.9. Turning then to the binding nature of the judgments of the CEGAT, we find that the proposition has never been doubted that the judgments of the CEGAT are binding on the revenue authorities. In the case of (Morarji Gokuldas Spinning Weaving Co. Ltd. and another v. Union of India and others)7, reported in 1981 E.L.T. 429(Bom.), it was pointed out by a learned Single Judge of this Court that an order passed by the Central Government in exercise of its revisional powers (under the law as it stood when no appeal was provided) was binding on the excise authorities. In the case of (Collector of Central Excise,v. Pharmaceutial Capsules Laboratories, Bombay)8, reported in 1986(25) E.L.T. 211, which was a case after the CEGAT was established, the CEGAT itself took a view that judgments of the CEGAT are binding on the revenue authorities and even the fact that they had merely filed an appeal against a particular judgment did not detract from its bindingCirculars/Orders or trade notices are not binding on the assesses at all and their efficacy and legality is always open for challenge at the instance of them. As far as the judgments rendered by the CEGAT are concerned, they are equally binding on the assesses as well as the Department. In a contest, therefore, the Circulars/guidelines/orders or trade notices issued under sectionmust necessarily yield. Thus, we hold that all officers functioning under the Act are bound by the judgments rendered by the CEGAT as long as such judgments are not stayed or reversed by a superior forum i.e. the High Court or the Supreme Court. We also hold that if at all there is a situation of conflict between a circular/guideline/order or trade notice issued under sectionof the Act and a binding judgment of the CEGAT, it is the binding judgment of the CEGAT which has to be followed by the authorities under the Act. The observations of the Division Bench of this Court in the case of (Yashwant Sahakari Sakhar Karkhane Ltd. v. Union of India and others)16, reported in 1986(26) E.L.T. 904(Bom.) fully support the view which we are inclined to take. It is an elementary proposition that an administrative circular issued by an authority, however high, can never override a binding judgment of judicial or quasi judicial authority. This is the quintessence of rule of law.In the facts and circumstances of the case, therefore, we are inclined to agree with the contentions of Mr. Thakur that driving the petitioners to the appellate authorities would be of no use. Faced with the circulars/guidelines/orders or trade notices under sectionof the Act, which have already taken a view in the matter, the assessee would have little chance to persuade the departmental authorities to take a contrary view. Mr. Thakur is right when he contends that there is no equally efficacious alternate remedy. Hence, we are of the view that these writ petitions need to be entertained.Having considered the matter from all these aspects, we are satisfied that the cases of the petitioners before us fall within the matrix exactly similar to the one in Aruna Industries and had the assessing authorities applied their minds carefully to the judgment in Aruna Industries case, there would not have been difficulty in arriving at the correct decision. Having not done so, there is an error.We are, therefore, of the view that in both the cases, fabrication of structurals at the site of the principal by using raw materials supplied by the principal did not amount to "manufacture", nor was it done at "factory", nor were the goods saleable or capable of being brought to the market for being bought or sold. We further notice that in both the cases the fabrication was with the immediate purpose of using in the factory shed or steel cold rolling mill which were being constructed and there was never an intention to sell it in the market. These facts, in our judgment, make it amply clear that the materials fabricated at the site by the contractors in both the cases were not exigible to excise duty under section 3 of the Act. Hence, the orders in both the cases need to be set aside in exercise of writ jurisdiction.
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Mahatma Gandhi Sahakara Sakkare Karkhane Vs. National Heavy Engg. Coop. Ltd. | also not stated as to how irreparable loss would be caused in case the appellant is allowed to encash the bank guarantee. The only two exceptions, namely fraud and irretrievable injury based on which injunction could be granted restraining encashment of bank guarantee are singularly absent in the pleadings. Once it is held that the bank guarantee furnished by the banker is an unconditional one, the appellant in our considered opinion cannot be restrained from encashing the bank guarantee on the ground that a serious dispute had arisen between the parties and on the allegations of breach of terms and conditions of the agreement entered between the parties.25. The High Court in its judgment went to the extent of recording a finding that it cannot be said that there was no delivery, erection and commissioning of plant. The High Court also took the view that the appellant has agreed to invoke the bank guarantee only in case of default on the part of the respondent in delivery, erection, commissioning of the plant. This view of the High Court is totally contrary to the terms and conditions of the bank guarantee executed by the bank in favour of the appellant. It has been specifically agreed by the banker to pay the guaranteed amount to the appellant on demand and " it shall not be open to the guarantor to know the reasons of or to investigate or to go into the merits of the demands or the question or challenge the demand or to know any facts affecting the demand." The bank guarantee further makes it clear that it shall not be open to the guarantor to require the proof of the liability of the seller to pay the amount, before paying the sum demanded. In the process the High Court made the following observations which in our considered opinion are totally untenable and unsustainable being contrary to the terms and conditions incorporated in the bank guarantee.26. The High Court observed: "From the facts and circumstances narrated by the petitioner, it is clear that the first respondent could not have invoked the bank guarantee when the setting up of the machinery and commissioning in accordance with the agreement and all these facts therefore show that the invocation of the bank guarantee was fraudulent." 27. It is further held that since the appellant failed to give any information to the bank as to the fact of any alleged breach of agreement in order to invoke the bank guarantee itself amounts to fraud. We must however hasten to add that the learned senior counsel appearing for the respondent did not support this part of the judgment of the High Court.28. However, Shri Jayant Bhushan, learned senior counsel appearing for the respondents contended that invocation of the bank guarantee relating to "delivery and commissioning of the plant" was wholly illegal and the High Court was right in granting the injunction order relating to that guarantee. It was submitted that the said bank guarantee could be invoked only on the failure of the respondent to commission the plant according to the schedule of commissioning in terms of the relevant clauses of the principal agreement entered into between the parties and since the conditions contemplated under those clauses did not exist, the invocation of the guarantee by the appellant itself is bad.29. The learned counsel in support of his submission relied upon the decision of this Court in Hindustan Construction Co. Ltd. Vs. State of Bihar & Ors. [ (1999) 8 SCC 436 ]. This Court in Hindustan Construction Co. (supra) having referred to the terms of clause (9) of principal contract between the parties therein came to the conclusion that the bank guarantee specifically refers to the original contract and postulates that the obligations expressed in the contract, are not fulfilled by HCCL, the right to claim recovery of the whole or part of the "advance mobilisation" then alone the bank was liable to pay the amount due under the guarantee to the Executive Engineer. The court found that the bank guarantee specifically refers to clause (9) of the principal agreement and it is under those circumstances came to the conclusion that the amount covered by the bank guarantee becomes payable and the same could be invoked only in the circumstances referred to in clause (9) of the principal agreement. The bank guarantee executed by the bank in the instant case in favour of the appellant herein does not contain any such clause. Mere fact that the bank guarantee refers to the principal agreement without referring to any specific clause in the preamble of the deed of guarantee does not make the guarantee furnished by the bank to be a conditional one. 30. In the very said judgment this Court observed that "what is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad." What is relevant, therefore, is the terms incorporated in the guarantee executed by the bank. 31. On careful analysis of the terms and conditions of the guarantee, we find the guarantee to be an unconditional one. The respondent, therefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee. 32. For all the aforesaid reasons, we hold that the respondent herein did not make out any case for grant of injunction restraining the appellant herein from encashing the bank guarantee.33. | 1[ds]21. In our considered opinion if the bank guarantee furnished is an unconditional and irrevocable one, it is not open to the bank to raise any objection whatsoever to pay the amounts under the guarantee. The person in whose favour the guarantee is furnished by the bank cannot be prevented by way of an injunction in enforcing the guarantee on the pretext that the condition for enforcing the bank guarantee in terms of the agreement entered between the parties has not been fulfilled. Such a course is impermissible. The seller cannot raise the dispute of whatsoever nature and prevent the purchaser from enforcing the bank guarantee by way of injunction except on the ground of fraud and irretrievable injury.22. In U.P. State Sugar Corporation vs. Sumac International Ltd. [ 1997 (1) SCC 568 ] this court had laid down the principle as to the enforcement of the bank guarantees as underlaw relating to invocation of such Bank Guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee in terms is given or accepted, the beneficiary is entitled to realise such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned".We do not propose to burden this judgment of ours with various other authoritative pronouncements on this very subject.24. In the present case the respondent in its application filed under Section 9 of the Arbitration and Conciliation Act, 1996 in the district court, Bidar mostly highlighted as to how the very vital conditions of the agreement have been breached by the appellant herein by not arranging the funds at the proper time. It is alleged that the appellant did not even complete their obligation in respect of providing storage facilties for valuable goods etc. It is specifically alleged that required funds were not available with the appellant. On account of non availability of funds there were two halts of nine months and five months during the execution of the project from 03.12.2001 to 14.08.2002 and from 14.08.2002 to 10.01.2003. It is further alleged that the appellant failed to arrange for all the pre-requisites. It is not necessary for the purpose of disposal of this appeal to notice all the allegations and averments filed by the respondents except to note that the main thrust of the allegation relate to alleged breach of the conditions of the agreement by the appellant. It was further contended that the bank guarantees were conditional bank guarantees and not unconditional. We have referred to the substance of the allegations only to highlight that no factual foundation as such has been laid in the pleadings as regards the allegation of fraud. In fact there is no serious allegation of any fraud except using the word "fraud". It is also not stated as to how irreparable loss would be caused in case the appellant is allowed to encash the bank guarantee. The only two exceptions, namely fraud and irretrievable injury based on which injunction could be granted restraining encashment of bank guarantee are singularly absent in the pleadings. Once it is held that the bank guarantee furnished by the banker is an unconditional one, the appellant in our considered opinion cannot be restrained from encashing the bank guarantee on the ground that a serious dispute had arisen between the parties and on the allegations of breach of terms and conditions of the agreement entered between the parties.25. The High Court in its judgment went to the extent of recording a finding that it cannot be said that there was no delivery, erection and commissioning of plant. The High Court also took the view that the appellant has agreed to invoke the bank guarantee only in case of default on the part of the respondent in delivery, erection, commissioning of the plant. This view of the High Court is totally contrary to the terms and conditions of the bank guarantee executed by the bank in favour of the appellant. It has been specifically agreed by the banker to pay the guaranteed amount to the appellant on demand and " it shall not be open to the guarantor to know the reasons of or to investigate or to go into the merits of the demands or the question or challenge the demand or to know any facts affecting the demand." The bank guarantee further makes it clear that it shall not be open to the guarantor to require the proof of the liability of the seller to pay the amount, before paying the sum demanded. In the process the High Court made the following observations which in our considered opinion are totally untenable and unsustainable being contrary to the terms and conditions incorporated in the bank guarantee.26. The High Courtthe facts and circumstances narrated by the petitioner, it is clear that the first respondent could not have invoked the bank guarantee when the setting up of the machinery and commissioning in accordance with the agreement and all these facts therefore show that the invocation of the bank guarantee was fraudulent.It is further held that since the appellant failed to give any information to the bank as to the fact of any alleged breach of agreement in order to invoke the bank guarantee itself amounts to fraud. We must however hasten to add that the learned senior counsel appearing for the respondent did not support this part of the judgment of the High Court.28. However, Shri Jayant Bhushan, learned senior counsel appearing for the respondents contended that invocation of the bank guarantee relating to "delivery and commissioning of the plant" was wholly illegal and the High Court was right in granting the injunction order relating to that guarantee. It was submitted that the said bank guarantee could be invoked only on the failure of the respondent to commission the plant according to the schedule of commissioning in terms of the relevant clauses of the principal agreement entered into between the parties and since the conditions contemplated under those clauses did not exist, the invocation of the guarantee by the appellant itself is bad.29. The learned counsel in support of his submission relied upon the decision of this Court in Hindustan Construction Co. Ltd. Vs. State of Bihar & Ors. [ (1999) 8 SCC 436 ]. This Court in Hindustan Construction Co. (supra) having referred to the terms of clause (9) of principal contract between the parties therein came to the conclusion that the bank guarantee specifically refers to the original contract and postulates that the obligations expressed in the contract, are not fulfilled by HCCL, the right to claim recovery of the whole or part of the "advance mobilisation" then alone the bank was liable to pay the amount due under the guarantee to the Executive Engineer. The court found that the bank guarantee specifically refers to clause (9) of the principal agreement and it is under those circumstances came to the conclusion that the amount covered by the bank guarantee becomes payable and the same could be invoked only in the circumstances referred to in clause (9) of the principal agreement. The bank guarantee executed by the bank in the instant case in favour of the appellant herein does not contain any such clause. Mere fact that the bank guarantee refers to the principal agreement without referring to any specific clause in the preamble of the deed of guarantee does not make the guarantee furnished by the bank to be a conditional one.In the very said judgment this Court observed that "what is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad." What is relevant, therefore, is the terms incorporated in the guarantee executed by the bank.On careful analysis of the terms and conditions of the guarantee, we find the guarantee to be an unconditional one. The respondent, therefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee.For all the aforesaid reasons, we hold that the respondent herein did not make out any case for grant of injunction restraining the appellant herein from encashing the bank guarantee. | 1 | 5,917 | 1,694 | ### Instruction:
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also not stated as to how irreparable loss would be caused in case the appellant is allowed to encash the bank guarantee. The only two exceptions, namely fraud and irretrievable injury based on which injunction could be granted restraining encashment of bank guarantee are singularly absent in the pleadings. Once it is held that the bank guarantee furnished by the banker is an unconditional one, the appellant in our considered opinion cannot be restrained from encashing the bank guarantee on the ground that a serious dispute had arisen between the parties and on the allegations of breach of terms and conditions of the agreement entered between the parties.25. The High Court in its judgment went to the extent of recording a finding that it cannot be said that there was no delivery, erection and commissioning of plant. The High Court also took the view that the appellant has agreed to invoke the bank guarantee only in case of default on the part of the respondent in delivery, erection, commissioning of the plant. This view of the High Court is totally contrary to the terms and conditions of the bank guarantee executed by the bank in favour of the appellant. It has been specifically agreed by the banker to pay the guaranteed amount to the appellant on demand and " it shall not be open to the guarantor to know the reasons of or to investigate or to go into the merits of the demands or the question or challenge the demand or to know any facts affecting the demand." The bank guarantee further makes it clear that it shall not be open to the guarantor to require the proof of the liability of the seller to pay the amount, before paying the sum demanded. In the process the High Court made the following observations which in our considered opinion are totally untenable and unsustainable being contrary to the terms and conditions incorporated in the bank guarantee.26. The High Court observed: "From the facts and circumstances narrated by the petitioner, it is clear that the first respondent could not have invoked the bank guarantee when the setting up of the machinery and commissioning in accordance with the agreement and all these facts therefore show that the invocation of the bank guarantee was fraudulent." 27. It is further held that since the appellant failed to give any information to the bank as to the fact of any alleged breach of agreement in order to invoke the bank guarantee itself amounts to fraud. We must however hasten to add that the learned senior counsel appearing for the respondent did not support this part of the judgment of the High Court.28. However, Shri Jayant Bhushan, learned senior counsel appearing for the respondents contended that invocation of the bank guarantee relating to "delivery and commissioning of the plant" was wholly illegal and the High Court was right in granting the injunction order relating to that guarantee. It was submitted that the said bank guarantee could be invoked only on the failure of the respondent to commission the plant according to the schedule of commissioning in terms of the relevant clauses of the principal agreement entered into between the parties and since the conditions contemplated under those clauses did not exist, the invocation of the guarantee by the appellant itself is bad.29. The learned counsel in support of his submission relied upon the decision of this Court in Hindustan Construction Co. Ltd. Vs. State of Bihar & Ors. [ (1999) 8 SCC 436 ]. This Court in Hindustan Construction Co. (supra) having referred to the terms of clause (9) of principal contract between the parties therein came to the conclusion that the bank guarantee specifically refers to the original contract and postulates that the obligations expressed in the contract, are not fulfilled by HCCL, the right to claim recovery of the whole or part of the "advance mobilisation" then alone the bank was liable to pay the amount due under the guarantee to the Executive Engineer. The court found that the bank guarantee specifically refers to clause (9) of the principal agreement and it is under those circumstances came to the conclusion that the amount covered by the bank guarantee becomes payable and the same could be invoked only in the circumstances referred to in clause (9) of the principal agreement. The bank guarantee executed by the bank in the instant case in favour of the appellant herein does not contain any such clause. Mere fact that the bank guarantee refers to the principal agreement without referring to any specific clause in the preamble of the deed of guarantee does not make the guarantee furnished by the bank to be a conditional one. 30. In the very said judgment this Court observed that "what is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad." What is relevant, therefore, is the terms incorporated in the guarantee executed by the bank. 31. On careful analysis of the terms and conditions of the guarantee, we find the guarantee to be an unconditional one. The respondent, therefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee. 32. For all the aforesaid reasons, we hold that the respondent herein did not make out any case for grant of injunction restraining the appellant herein from encashing the bank guarantee.33.
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allegation of any fraud except using the word "fraud". It is also not stated as to how irreparable loss would be caused in case the appellant is allowed to encash the bank guarantee. The only two exceptions, namely fraud and irretrievable injury based on which injunction could be granted restraining encashment of bank guarantee are singularly absent in the pleadings. Once it is held that the bank guarantee furnished by the banker is an unconditional one, the appellant in our considered opinion cannot be restrained from encashing the bank guarantee on the ground that a serious dispute had arisen between the parties and on the allegations of breach of terms and conditions of the agreement entered between the parties.25. The High Court in its judgment went to the extent of recording a finding that it cannot be said that there was no delivery, erection and commissioning of plant. The High Court also took the view that the appellant has agreed to invoke the bank guarantee only in case of default on the part of the respondent in delivery, erection, commissioning of the plant. This view of the High Court is totally contrary to the terms and conditions of the bank guarantee executed by the bank in favour of the appellant. It has been specifically agreed by the banker to pay the guaranteed amount to the appellant on demand and " it shall not be open to the guarantor to know the reasons of or to investigate or to go into the merits of the demands or the question or challenge the demand or to know any facts affecting the demand." The bank guarantee further makes it clear that it shall not be open to the guarantor to require the proof of the liability of the seller to pay the amount, before paying the sum demanded. In the process the High Court made the following observations which in our considered opinion are totally untenable and unsustainable being contrary to the terms and conditions incorporated in the bank guarantee.26. The High Courtthe facts and circumstances narrated by the petitioner, it is clear that the first respondent could not have invoked the bank guarantee when the setting up of the machinery and commissioning in accordance with the agreement and all these facts therefore show that the invocation of the bank guarantee was fraudulent.It is further held that since the appellant failed to give any information to the bank as to the fact of any alleged breach of agreement in order to invoke the bank guarantee itself amounts to fraud. We must however hasten to add that the learned senior counsel appearing for the respondent did not support this part of the judgment of the High Court.28. However, Shri Jayant Bhushan, learned senior counsel appearing for the respondents contended that invocation of the bank guarantee relating to "delivery and commissioning of the plant" was wholly illegal and the High Court was right in granting the injunction order relating to that guarantee. It was submitted that the said bank guarantee could be invoked only on the failure of the respondent to commission the plant according to the schedule of commissioning in terms of the relevant clauses of the principal agreement entered into between the parties and since the conditions contemplated under those clauses did not exist, the invocation of the guarantee by the appellant itself is bad.29. The learned counsel in support of his submission relied upon the decision of this Court in Hindustan Construction Co. Ltd. Vs. State of Bihar & Ors. [ (1999) 8 SCC 436 ]. This Court in Hindustan Construction Co. (supra) having referred to the terms of clause (9) of principal contract between the parties therein came to the conclusion that the bank guarantee specifically refers to the original contract and postulates that the obligations expressed in the contract, are not fulfilled by HCCL, the right to claim recovery of the whole or part of the "advance mobilisation" then alone the bank was liable to pay the amount due under the guarantee to the Executive Engineer. The court found that the bank guarantee specifically refers to clause (9) of the principal agreement and it is under those circumstances came to the conclusion that the amount covered by the bank guarantee becomes payable and the same could be invoked only in the circumstances referred to in clause (9) of the principal agreement. The bank guarantee executed by the bank in the instant case in favour of the appellant herein does not contain any such clause. Mere fact that the bank guarantee refers to the principal agreement without referring to any specific clause in the preamble of the deed of guarantee does not make the guarantee furnished by the bank to be a conditional one.In the very said judgment this Court observed that "what is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad." What is relevant, therefore, is the terms incorporated in the guarantee executed by the bank.On careful analysis of the terms and conditions of the guarantee, we find the guarantee to be an unconditional one. The respondent, therefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee.For all the aforesaid reasons, we hold that the respondent herein did not make out any case for grant of injunction restraining the appellant herein from encashing the bank guarantee.
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UNION OF INDIA & ORS Vs. EX. NAIK RAM SINGH | ABHAY S. OKA, J. 1. The appellants, Union of India and three others, have taken an exception to the judgment and order dated 23rd December 2010 of the Armed Forces Tribunal, Chandigarh Bench at Chandimandir (for short, the Tribunal). 2. By the impugned judgment and order, the appellants were directed to release the disability pension quantified at 80% disability for life to the respondent from the date of his discharge from military service. The appellants were directed to pay arrears of disability pension restricted to a period of three years immediately preceding filing of the application by the respondent before the Tribunal. Interest @10% per annum was granted on the arrears. 3. The respondent was enrolled in the Army on 4th June 1965. After rendering colour service for 10 years and 88 days, he was transferred to reserved establishment on 30th August 1975. During his reserve period, he voluntarily got himself enrolled in Defence Security Corps on 7th January 1976. On 6th November 1999, the respondent was granted annual leave. He proceeded to Kishanpura on the same day. While on leave, on 8th November 1999, he suffered an accident. While crossing the road, he was hit by a speedy scooter. As a result of the accident, he sustained head injury and became unconscious. The Medical Board assessed the percentage of the disability of the respondent at 80%. The Medical Board placed the respondent in low medical category (EEE). On that ground, he was invalidated out of service from 28th September 2000. 4. The respondent made an application to the Armed Forces Tribunal praying for grant of disability pension. In the impugned judgment, the Tribunal relied upon its decision dated 15th December 2010 in T.A. No.237 of 2010 (Ex. NK. Raj Pal v. Union of India & Ors.). The Tribunal held that if an individual sustains an injury during the period of any kind of authorized leave and his act was not inconsistent with Military service, his disability is deemed to be attributable to Military service. 5. On 6th December 2013, this Court issued notice to the respondent. After service of notice, the respondent did not appear. While granting leave on 10th October 2014, a fresh notice was issued to the respondent which has been duly served. The respondent did not enter appearance even thereafter. 6. Shri K.M. Nataraj, learned Additional Solicitor General urged that there has to be a reasonable connection between the injuries sustained by a member of Armed Forces resulting in disability and the Military service. He invited our attention to Regulation 173 of the Pension Regulations for the Army, 1961 (for short, the Pension Regulations). He also invited our attention to Rule 12 of the Entitlement Rules for Casualty Pensionary Awards, 1982. He submitted that the accident occurred couple of days after the respondent travelled from the place of his duty to leave station. He would submit that the respondent was disentitled to disability pension. He fairly pointed out that the decision of the Tribunal in T.A.No.237 of 2010 relied upon in the impugned judgment, was challenged by the Union of India. However, the special leave petition was dismissed summarily. He submitted that what holds the field is the decision of this Court in the case of Union of India & Ors. v. Vijay Kumar No.3989606 P, Ex-Naik 2015 (10) SCC 460 . 7. On facts, it is an admitted position that the respondent was granted annual leave on 6th November 1999. He proceeded on the same day to leave station. On 8th November 1999, when he was crossing the road, he suffered an accident. As noted earlier, his disability was assessed at 80%. Regulation 173 of the Pension Regulations reads thus.: 173.Primary conditions for the grant of disability pension.-Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. (underline supplied) 8. The Entitlement Rules, 1982 and in particular Rule 12, defines Duty. Clause (d) of Note 2 which is a part of Rule 12 clarifies that personnel while travelling between the place of their duty to leave station and vice-versa, shall be treated on duty. It is not the case made out by the respondent that the accident occurred when he was travelling to leave station. It happened after he reached the leave station. Unless the disability is attributable to or aggravated by military service and is more than 20%, the entitlement to disability pension does not arise. 9. This Court in the case of Vijay Kumar 2015 (10) SCC 460 , after considering Regulation 173 of the Pension Regulations and Rule 12 of the Entitlement Rules, 1982, in paragraph 14 held thus.: 14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable causal connection between the injuries resulting in disability and the military service. (underline supplied) 10. What is held above, is the binding precedent. In the present case, as noted earlier, two days after the respondent reached the leave station, he met with an accident on a public road. There is absolutely no nexus between the Military service and injuries sustained by the respondent. There is not even a causal connection. The Tribunal has completely overlooked this aspect which goes to the root of the matter. Hence, the respondent was not entitled to the disability pension. | 1[ds]7. On facts, it is an admitted position that the respondent was granted annual leave on 6th November 1999. He proceeded on the same day to leave station. On 8th November 1999, when he was crossing the road, he suffered an accident. As noted earlier, his disability was assessed at 80%.8. The Entitlement Rules, 1982 and in particular Rule 12, defines Duty. Clause (d) of Note 2 which is a part of Rule 12 clarifies that personnel while travelling between the place of their duty to leave station and vice-versa, shall be treated on duty. It is not the case made out by the respondent that the accident occurred when he was travelling to leave station. It happened after he reached the leave station. Unless the disability is attributable to or aggravated by military service and is more than 20%, the entitlement to disability pension does not arise.9. This Court in the case of Vijay Kumar 2015 (10) SCC 460 , after considering Regulation 173 of the Pension Regulations and Rule 12 of the Entitlement Rules, 1982, in paragraph 14 held thus.:14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable causal connection between the injuries resulting in disability and the military service.10. What is held above, is the binding precedent. In the present case, as noted earlier, two days after the respondent reached the leave station, he met with an accident on a public road. There is absolutely no nexus between the Military service and injuries sustained by the respondent. There is not even a causal connection. The Tribunal has completely overlooked this aspect which goes to the root of the matter. Hence, the respondent was not entitled to the disability pension. | 1 | 1,105 | 388 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
ABHAY S. OKA, J. 1. The appellants, Union of India and three others, have taken an exception to the judgment and order dated 23rd December 2010 of the Armed Forces Tribunal, Chandigarh Bench at Chandimandir (for short, the Tribunal). 2. By the impugned judgment and order, the appellants were directed to release the disability pension quantified at 80% disability for life to the respondent from the date of his discharge from military service. The appellants were directed to pay arrears of disability pension restricted to a period of three years immediately preceding filing of the application by the respondent before the Tribunal. Interest @10% per annum was granted on the arrears. 3. The respondent was enrolled in the Army on 4th June 1965. After rendering colour service for 10 years and 88 days, he was transferred to reserved establishment on 30th August 1975. During his reserve period, he voluntarily got himself enrolled in Defence Security Corps on 7th January 1976. On 6th November 1999, the respondent was granted annual leave. He proceeded to Kishanpura on the same day. While on leave, on 8th November 1999, he suffered an accident. While crossing the road, he was hit by a speedy scooter. As a result of the accident, he sustained head injury and became unconscious. The Medical Board assessed the percentage of the disability of the respondent at 80%. The Medical Board placed the respondent in low medical category (EEE). On that ground, he was invalidated out of service from 28th September 2000. 4. The respondent made an application to the Armed Forces Tribunal praying for grant of disability pension. In the impugned judgment, the Tribunal relied upon its decision dated 15th December 2010 in T.A. No.237 of 2010 (Ex. NK. Raj Pal v. Union of India & Ors.). The Tribunal held that if an individual sustains an injury during the period of any kind of authorized leave and his act was not inconsistent with Military service, his disability is deemed to be attributable to Military service. 5. On 6th December 2013, this Court issued notice to the respondent. After service of notice, the respondent did not appear. While granting leave on 10th October 2014, a fresh notice was issued to the respondent which has been duly served. The respondent did not enter appearance even thereafter. 6. Shri K.M. Nataraj, learned Additional Solicitor General urged that there has to be a reasonable connection between the injuries sustained by a member of Armed Forces resulting in disability and the Military service. He invited our attention to Regulation 173 of the Pension Regulations for the Army, 1961 (for short, the Pension Regulations). He also invited our attention to Rule 12 of the Entitlement Rules for Casualty Pensionary Awards, 1982. He submitted that the accident occurred couple of days after the respondent travelled from the place of his duty to leave station. He would submit that the respondent was disentitled to disability pension. He fairly pointed out that the decision of the Tribunal in T.A.No.237 of 2010 relied upon in the impugned judgment, was challenged by the Union of India. However, the special leave petition was dismissed summarily. He submitted that what holds the field is the decision of this Court in the case of Union of India & Ors. v. Vijay Kumar No.3989606 P, Ex-Naik 2015 (10) SCC 460 . 7. On facts, it is an admitted position that the respondent was granted annual leave on 6th November 1999. He proceeded on the same day to leave station. On 8th November 1999, when he was crossing the road, he suffered an accident. As noted earlier, his disability was assessed at 80%. Regulation 173 of the Pension Regulations reads thus.: 173.Primary conditions for the grant of disability pension.-Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. (underline supplied) 8. The Entitlement Rules, 1982 and in particular Rule 12, defines Duty. Clause (d) of Note 2 which is a part of Rule 12 clarifies that personnel while travelling between the place of their duty to leave station and vice-versa, shall be treated on duty. It is not the case made out by the respondent that the accident occurred when he was travelling to leave station. It happened after he reached the leave station. Unless the disability is attributable to or aggravated by military service and is more than 20%, the entitlement to disability pension does not arise. 9. This Court in the case of Vijay Kumar 2015 (10) SCC 460 , after considering Regulation 173 of the Pension Regulations and Rule 12 of the Entitlement Rules, 1982, in paragraph 14 held thus.: 14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable causal connection between the injuries resulting in disability and the military service. (underline supplied) 10. What is held above, is the binding precedent. In the present case, as noted earlier, two days after the respondent reached the leave station, he met with an accident on a public road. There is absolutely no nexus between the Military service and injuries sustained by the respondent. There is not even a causal connection. The Tribunal has completely overlooked this aspect which goes to the root of the matter. Hence, the respondent was not entitled to the disability pension.
### Response:
1
### Explanation:
7. On facts, it is an admitted position that the respondent was granted annual leave on 6th November 1999. He proceeded on the same day to leave station. On 8th November 1999, when he was crossing the road, he suffered an accident. As noted earlier, his disability was assessed at 80%.8. The Entitlement Rules, 1982 and in particular Rule 12, defines Duty. Clause (d) of Note 2 which is a part of Rule 12 clarifies that personnel while travelling between the place of their duty to leave station and vice-versa, shall be treated on duty. It is not the case made out by the respondent that the accident occurred when he was travelling to leave station. It happened after he reached the leave station. Unless the disability is attributable to or aggravated by military service and is more than 20%, the entitlement to disability pension does not arise.9. This Court in the case of Vijay Kumar 2015 (10) SCC 460 , after considering Regulation 173 of the Pension Regulations and Rule 12 of the Entitlement Rules, 1982, in paragraph 14 held thus.:14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable causal connection between the injuries resulting in disability and the military service.10. What is held above, is the binding precedent. In the present case, as noted earlier, two days after the respondent reached the leave station, he met with an accident on a public road. There is absolutely no nexus between the Military service and injuries sustained by the respondent. There is not even a causal connection. The Tribunal has completely overlooked this aspect which goes to the root of the matter. Hence, the respondent was not entitled to the disability pension.
|
Rajendra Rajmutyam Mali Vs. State of Maharashtra | 1. The incident which has given rise to this appeal occurred on the morning of 2-5-1981 around 7-30 a. m. at Narpali, Bhiwandi, in the State of Maharashtra. According to the prosecution the unfortunate incident arose because of the employer having terminated the services of the accused persons. The employer Kanti Lal was the owner of a powerloom factory situated in a compound where several other similar sheds were located. On the day of the incident the complainant PW 9, Rati Lal Meghji, owner of a transport company had gone to his office situated in the same compound at about 7-30 a. m. The deceased Kanti Lal was known to this witness. The witness also knew the accused persons since they were working at the factory of Kanti Lal situated in the same compound. The witness, therefore, claims to have seen the incident from close quarters. Besides, the evidence of the complainant Rati Lal, there is the direct testimony of PW 4 Chandulal, PW 5 Nemchand and PW 7 Kanji Lal Ji, an employee of the deceased. While Rati Lal saw the appellant grappling with the deceased to escape after the other two assailants had fled, the other three eyewitnesses saw the incident in its entirety. In addition to this direct testimony of four eyewitnesses the prosecution also placed reliance on the evidence of one Madan Jhaveri a taxi driver before whom the appellant before us, is alleged to have made a confessional statement. The evidence of the taxi driver shows that after the appellant made a confessional statement he immediately drove him to the police station rather than taking him to Kalyan for which the taxi was hired. At the police station the appellant was searched and a knife found on his person was attached since it had blood like stains. His other two companions were arrested near the bus stand. The knife found from the person of the accused was sent to the chemical analyser and serologist for opinion. The expert opinion is that the stains were of human blood belonging to the group of the deceased. The trial court accepted the evidence of all the four eyewitnesses as well as the evidence in regard to the confessional statement made by the appellant. On the totality of this evidence the appellant and his companions came to be convicted. Their appeal was summarily dismissed by the High Court. Hence this appeal by special leave2. We have carefully appreciated the prosecution case and the evidence of the four eyewitnesses as well as the evidence in regard to the making of a confessional statement by the appellant herein. The learned counsel for the appellant-accused placed considerable reliance on the fact that the appellant-accused had two incised injuries namely, (1) a punctured wound on the inner side of the left forearm and (2) an exit wound on outer side of left forearm, both muscle deep. There was, therefore, in effect only a single injury which contends the learned counsel for the appellant, has not been explained by any of the prosecution witnesses. We are of the opinion that the failure to explain this injury on the person of accused cannot be taken to be fatal to the prosecution case having regard to the facts and circumstances of the case. The facts reveal that the deceased Kanti Lal was attacked by three persons with daggers and the incident was seen by the prosecution witnesses from very close quarters. Since three persons were attacking the deceased and since no weapon was found on the person of the deceased or lying at the scene of occurrence, it is obvious that only three assailants were armed and since they were all involved in the assault a minor injury caused to one while wielding their weapons may have escaped the notice of the prosecution witnesses. Therefore, we think that the trial court was right in not taking too serious a notice of the omissions to explain the injuries. Besides, the seat of the injury is such that if the accused was wearing a full sleeves shirt it would not be noticed by any prosecution witnesses. In the circumstances we do not attach much importance to the failure on the part of the prosecution witnesses to explain this minor injury. We think that on totality of the evidence presented by the prosecution the guilt is brought home beyond doubt. We, therefore, do not see any substance in this appeal. | 0[ds]We are of the opinion that the failure to explain this injury on the person of accused cannot be taken to be fatal to the prosecution case having regard to the facts and circumstances of the case. The facts reveal that the deceased Kanti Lal was attacked by three persons with daggers and the incident was seen by the prosecution witnesses from very close quarters. Since three persons were attacking the deceased and since no weapon was found on the person of the deceased or lying at the scene of occurrence, it is obvious that only three assailants were armed and since they were all involved in the assault a minor injury caused to one while wielding their weapons may have escaped the notice of the prosecution witnesses. Therefore, we think that the trial court was right in not taking too serious a notice of the omissions to explain the injuries. Besides, the seat of the injury is such that if the accused was wearing a full sleeves shirt it would not be noticed by any prosecution witnesses. In the circumstances we do not attach much importance to the failure on the part of the prosecution witnesses to explain this minor injury. We think that on totality of the evidence presented by the prosecution the guilt is brought home beyond doubt. We, therefore, do not see any substance in this appeal. | 0 | 798 | 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.
### Input:
1. The incident which has given rise to this appeal occurred on the morning of 2-5-1981 around 7-30 a. m. at Narpali, Bhiwandi, in the State of Maharashtra. According to the prosecution the unfortunate incident arose because of the employer having terminated the services of the accused persons. The employer Kanti Lal was the owner of a powerloom factory situated in a compound where several other similar sheds were located. On the day of the incident the complainant PW 9, Rati Lal Meghji, owner of a transport company had gone to his office situated in the same compound at about 7-30 a. m. The deceased Kanti Lal was known to this witness. The witness also knew the accused persons since they were working at the factory of Kanti Lal situated in the same compound. The witness, therefore, claims to have seen the incident from close quarters. Besides, the evidence of the complainant Rati Lal, there is the direct testimony of PW 4 Chandulal, PW 5 Nemchand and PW 7 Kanji Lal Ji, an employee of the deceased. While Rati Lal saw the appellant grappling with the deceased to escape after the other two assailants had fled, the other three eyewitnesses saw the incident in its entirety. In addition to this direct testimony of four eyewitnesses the prosecution also placed reliance on the evidence of one Madan Jhaveri a taxi driver before whom the appellant before us, is alleged to have made a confessional statement. The evidence of the taxi driver shows that after the appellant made a confessional statement he immediately drove him to the police station rather than taking him to Kalyan for which the taxi was hired. At the police station the appellant was searched and a knife found on his person was attached since it had blood like stains. His other two companions were arrested near the bus stand. The knife found from the person of the accused was sent to the chemical analyser and serologist for opinion. The expert opinion is that the stains were of human blood belonging to the group of the deceased. The trial court accepted the evidence of all the four eyewitnesses as well as the evidence in regard to the confessional statement made by the appellant. On the totality of this evidence the appellant and his companions came to be convicted. Their appeal was summarily dismissed by the High Court. Hence this appeal by special leave2. We have carefully appreciated the prosecution case and the evidence of the four eyewitnesses as well as the evidence in regard to the making of a confessional statement by the appellant herein. The learned counsel for the appellant-accused placed considerable reliance on the fact that the appellant-accused had two incised injuries namely, (1) a punctured wound on the inner side of the left forearm and (2) an exit wound on outer side of left forearm, both muscle deep. There was, therefore, in effect only a single injury which contends the learned counsel for the appellant, has not been explained by any of the prosecution witnesses. We are of the opinion that the failure to explain this injury on the person of accused cannot be taken to be fatal to the prosecution case having regard to the facts and circumstances of the case. The facts reveal that the deceased Kanti Lal was attacked by three persons with daggers and the incident was seen by the prosecution witnesses from very close quarters. Since three persons were attacking the deceased and since no weapon was found on the person of the deceased or lying at the scene of occurrence, it is obvious that only three assailants were armed and since they were all involved in the assault a minor injury caused to one while wielding their weapons may have escaped the notice of the prosecution witnesses. Therefore, we think that the trial court was right in not taking too serious a notice of the omissions to explain the injuries. Besides, the seat of the injury is such that if the accused was wearing a full sleeves shirt it would not be noticed by any prosecution witnesses. In the circumstances we do not attach much importance to the failure on the part of the prosecution witnesses to explain this minor injury. We think that on totality of the evidence presented by the prosecution the guilt is brought home beyond doubt. We, therefore, do not see any substance in this appeal.
### Response:
0
### Explanation:
We are of the opinion that the failure to explain this injury on the person of accused cannot be taken to be fatal to the prosecution case having regard to the facts and circumstances of the case. The facts reveal that the deceased Kanti Lal was attacked by three persons with daggers and the incident was seen by the prosecution witnesses from very close quarters. Since three persons were attacking the deceased and since no weapon was found on the person of the deceased or lying at the scene of occurrence, it is obvious that only three assailants were armed and since they were all involved in the assault a minor injury caused to one while wielding their weapons may have escaped the notice of the prosecution witnesses. Therefore, we think that the trial court was right in not taking too serious a notice of the omissions to explain the injuries. Besides, the seat of the injury is such that if the accused was wearing a full sleeves shirt it would not be noticed by any prosecution witnesses. In the circumstances we do not attach much importance to the failure on the part of the prosecution witnesses to explain this minor injury. We think that on totality of the evidence presented by the prosecution the guilt is brought home beyond doubt. We, therefore, do not see any substance in this appeal.
|
The Commissioner Of Income-Tax Vs. The Mysore Sugar Co., Ltd | the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance it is a revenue loss. In the first, it bears the character of an investment, but in the second, to use a commonly understood phrase, it bears the character of current expenses.8. This distinction is admirably brought out in some English cases, which were cited at the bar. We shall refer only to three of them. In English Crown Spelter Co., Ltd. v. Baker, (1908) 5 Tax Cas .327, the English Crown Spelter Co. carried on the business of zinc smelting for which it required large quantities of blende. To get supplies of blende, a new Company called the Welsh Crown Spelter Company was formed, which received assistance from the English Company in the shape of advances on loan. Later, the English Company was required to write off? 38,000 odd. The question arose whether the advance could be said to be an investment of capital, because if they were, the English Company would have no right to deduct the amount. If, on the other hand it was money employed for the business, it could be deducted. Bray, J. who considered these questions, observed:"If this were an ordinary business transaction of a contract by which the Welsh Company were to deliver certain blende, it may be at prices to be settled hereafter, and that this was really nothing more than an advance on account of the price of that blende, there would be a great deal to be said in favour of the Appellants . . . It is impossible to look Upon this as an ordinary business transaction of an advance against goods to be delivered . ... I can come to no other conclusion but that this was an investment of capital in the Welsh Company and was not an ordinary trade transaction of an advance against goods 9. The second case, Charles Marsden and Sons Ltd. v. Commissioners of Inland Revenue, (1919) 12 Tax Cas 217, is under the Excess Profits Duty in England, and the question arose in the following circumstances: An English Company carried on the business of paper making. To arrange for supplies of wood pulp, it entered into an agreement with a Canadian Company for supply of 3,000 tons per year between 1917-1927. The English Company made an advance of? 30,000 against future deliveries to be recouped at the rate of $ 1 per ton delivered. The Canadian Company was to pay interest in the meantime. Later, the importation of wood pulp was stopped, and the Canadian Company (appropriately called the Ha! Ha! Company) neither delivered the pulp nor returned the money. Rowlatt, J. held this to be a capital expenditure not admissible as a deduction. He was of opinion that the payment was not an advance payment for goods, observing that no one pays for goods ten years in advance, and that it was a venture to establish a source and money was adventured as capital.10. The last case, to which we need refer to illustrate the distinction made in such cases is Reids Brewery Co. Ltd. v. Male, (1891) 3 Tax Cas 279. The Brewery Company there carried on, in addition to the business of a brewery, a business of bankers and money-lenders making loans and advances to their customers. This helped the customers in pushing sales of the product of the Brewery Company. Certain sums had to be written off, and the amount was held to be deductible. Pollock, B. said:"Of course, if it be capital invested, then it comes within the express provision of the Income-tax Act, that no deduction is to be made on that account.";but held that:". . . no person who is acquainted with the habits of business can doubt that this is not capital used by the Appellants but used only in the sense that all money which is laid out by persons Who are traders, whether it be in the purchase of goods be they traders alone whether it be in the purchase of raw material be they manufacturers, or in the case of money lenders be they pawnbrokers or money-lenders, whether it be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word."It was thus held to be a use of money in the course of the Companys business, and not an investment of capital at all.11. These cases illustrate the distinction between expenditure by way of investment and an expenditure in the course of business, which we have described as current expenditure. The first may truly be regarded as on the capital side but not the second. Applying this test to this simple case, it is quite obvious which it is. The amount was an advance against price of one crop. The Oppigedars were to get the assistance not as an investment by the assessee Company in its agriculture, but only as an advance payment of price. The amount, so far as the assessee Company was concerned, represented the current expenditure towards the purchase of sugarcane, and it makes no difference that the sugarcane thus purchased was grown by the Oppigedars with the seedlings, fertiliser and money taken on account from the assessee Company. In so far as the assessee Company was concerned, it was doing no more than making a forward arrangement for the next years crop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers. There was hardly any element of investment which contemplates more than payment of advance price. The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered. | 0[ds]Originally, two questions were referred, but with the second question we are not now concerned.The case has been argued before us both under S. 10 (1) and S. 10 (2) (xv), though it appears that case of the assessee Company has changed from S. 10 (1) to S. 10 (2) (xi) and S. 10 (2) (xv) from time to time. The question, as propounded, seems to refer to Ss. 10 (2) (xi). We, however, do not wish to emphasise the nature of the question posed, because, in our opinion, the central point to decide is whetherthe money which was given up, represented a loss of capital, or must be treated as a revenueother words, S.10 (2) does not deal exhaustively with the deductions, which must be made to arrive at the true profits andgains.7. To find out whether an expenditure is on the capital account or on revenue, one must consider the expenditure in relation to the, business. Since all payments reduce capital in the ultimate analysis, one is apt to, consider a loss as amounting to a loss of capital. But this is not true of all losses, because losses in the running of the business cannot be said to be of capital. The questions to consider in this connection are: for what was the money laid out? Was it to acquire an asset of an enduring nature for the benefit of the business, or was it an outgoing in the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance it is a revenue loss. In the first, it bears the character of an investment, but in the second, to use a commonly understood phrase, it bears the character of currentwas thus held to be a use of money in the course of the Companys business, and not an investment of capital at all.11. These cases illustrate the distinction between expenditure by way of investment and an expenditure in the course of business, which we have described as current expenditure. The first may truly be regarded as on the capital side but not the second. Applying this test to this simple case, it is quite obvious which it is. The amount was an advance against price of one crop. The Oppigedars were to get the assistance not as an investment by the assessee Company in its agriculture, but only as an advance payment of price. The amount, so far as the assessee Company was concerned, represented the current expenditure towards the purchase of sugarcane, and it makes no difference that the sugarcane thus purchased was grown by the Oppigedars with the seedlings, fertiliser and money taken on account from the assessee Company. In so far as the assessee Company was concerned, it was doing no more than making a forward arrangement for the next years crop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers. There was hardly any element of investment which contemplates more than payment of advance price. The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered. | 0 | 2,589 | 647 | ### 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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the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance it is a revenue loss. In the first, it bears the character of an investment, but in the second, to use a commonly understood phrase, it bears the character of current expenses.8. This distinction is admirably brought out in some English cases, which were cited at the bar. We shall refer only to three of them. In English Crown Spelter Co., Ltd. v. Baker, (1908) 5 Tax Cas .327, the English Crown Spelter Co. carried on the business of zinc smelting for which it required large quantities of blende. To get supplies of blende, a new Company called the Welsh Crown Spelter Company was formed, which received assistance from the English Company in the shape of advances on loan. Later, the English Company was required to write off? 38,000 odd. The question arose whether the advance could be said to be an investment of capital, because if they were, the English Company would have no right to deduct the amount. If, on the other hand it was money employed for the business, it could be deducted. Bray, J. who considered these questions, observed:"If this were an ordinary business transaction of a contract by which the Welsh Company were to deliver certain blende, it may be at prices to be settled hereafter, and that this was really nothing more than an advance on account of the price of that blende, there would be a great deal to be said in favour of the Appellants . . . It is impossible to look Upon this as an ordinary business transaction of an advance against goods to be delivered . ... I can come to no other conclusion but that this was an investment of capital in the Welsh Company and was not an ordinary trade transaction of an advance against goods 9. The second case, Charles Marsden and Sons Ltd. v. Commissioners of Inland Revenue, (1919) 12 Tax Cas 217, is under the Excess Profits Duty in England, and the question arose in the following circumstances: An English Company carried on the business of paper making. To arrange for supplies of wood pulp, it entered into an agreement with a Canadian Company for supply of 3,000 tons per year between 1917-1927. The English Company made an advance of? 30,000 against future deliveries to be recouped at the rate of $ 1 per ton delivered. The Canadian Company was to pay interest in the meantime. Later, the importation of wood pulp was stopped, and the Canadian Company (appropriately called the Ha! Ha! Company) neither delivered the pulp nor returned the money. Rowlatt, J. held this to be a capital expenditure not admissible as a deduction. He was of opinion that the payment was not an advance payment for goods, observing that no one pays for goods ten years in advance, and that it was a venture to establish a source and money was adventured as capital.10. The last case, to which we need refer to illustrate the distinction made in such cases is Reids Brewery Co. Ltd. v. Male, (1891) 3 Tax Cas 279. The Brewery Company there carried on, in addition to the business of a brewery, a business of bankers and money-lenders making loans and advances to their customers. This helped the customers in pushing sales of the product of the Brewery Company. Certain sums had to be written off, and the amount was held to be deductible. Pollock, B. said:"Of course, if it be capital invested, then it comes within the express provision of the Income-tax Act, that no deduction is to be made on that account.";but held that:". . . no person who is acquainted with the habits of business can doubt that this is not capital used by the Appellants but used only in the sense that all money which is laid out by persons Who are traders, whether it be in the purchase of goods be they traders alone whether it be in the purchase of raw material be they manufacturers, or in the case of money lenders be they pawnbrokers or money-lenders, whether it be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word."It was thus held to be a use of money in the course of the Companys business, and not an investment of capital at all.11. These cases illustrate the distinction between expenditure by way of investment and an expenditure in the course of business, which we have described as current expenditure. The first may truly be regarded as on the capital side but not the second. Applying this test to this simple case, it is quite obvious which it is. The amount was an advance against price of one crop. The Oppigedars were to get the assistance not as an investment by the assessee Company in its agriculture, but only as an advance payment of price. The amount, so far as the assessee Company was concerned, represented the current expenditure towards the purchase of sugarcane, and it makes no difference that the sugarcane thus purchased was grown by the Oppigedars with the seedlings, fertiliser and money taken on account from the assessee Company. In so far as the assessee Company was concerned, it was doing no more than making a forward arrangement for the next years crop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers. There was hardly any element of investment which contemplates more than payment of advance price. The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered.
### Response:
0
### Explanation:
Originally, two questions were referred, but with the second question we are not now concerned.The case has been argued before us both under S. 10 (1) and S. 10 (2) (xv), though it appears that case of the assessee Company has changed from S. 10 (1) to S. 10 (2) (xi) and S. 10 (2) (xv) from time to time. The question, as propounded, seems to refer to Ss. 10 (2) (xi). We, however, do not wish to emphasise the nature of the question posed, because, in our opinion, the central point to decide is whetherthe money which was given up, represented a loss of capital, or must be treated as a revenueother words, S.10 (2) does not deal exhaustively with the deductions, which must be made to arrive at the true profits andgains.7. To find out whether an expenditure is on the capital account or on revenue, one must consider the expenditure in relation to the, business. Since all payments reduce capital in the ultimate analysis, one is apt to, consider a loss as amounting to a loss of capital. But this is not true of all losses, because losses in the running of the business cannot be said to be of capital. The questions to consider in this connection are: for what was the money laid out? Was it to acquire an asset of an enduring nature for the benefit of the business, or was it an outgoing in the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance it is a revenue loss. In the first, it bears the character of an investment, but in the second, to use a commonly understood phrase, it bears the character of currentwas thus held to be a use of money in the course of the Companys business, and not an investment of capital at all.11. These cases illustrate the distinction between expenditure by way of investment and an expenditure in the course of business, which we have described as current expenditure. The first may truly be regarded as on the capital side but not the second. Applying this test to this simple case, it is quite obvious which it is. The amount was an advance against price of one crop. The Oppigedars were to get the assistance not as an investment by the assessee Company in its agriculture, but only as an advance payment of price. The amount, so far as the assessee Company was concerned, represented the current expenditure towards the purchase of sugarcane, and it makes no difference that the sugarcane thus purchased was grown by the Oppigedars with the seedlings, fertiliser and money taken on account from the assessee Company. In so far as the assessee Company was concerned, it was doing no more than making a forward arrangement for the next years crop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers. There was hardly any element of investment which contemplates more than payment of advance price. The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered.
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Rambraksh @ Jalim Vs. State of Chhattisgarh | for 7 days and then again went to the Police Station and lodged the complaint. As already stated PW3 Dasmatiya Bai in her complaint as well as her statement before the police has not told that she witnessed the occurrence during which both the accused assaulted her husband with lathi and Danda. Only in her testimony before the Court she claimed to have witnessed the occurrence. The High Court has rightly ignored the improved part of her testimony and placed no reliance on it. 8. The bones, articles, clothes and shoes allegedly belonging to Ramsevak were recovered on 15.10.1992. Exh.P2 Morgue given by Dasmatiya Bai was recorded and the FIR came to be registered on 15.10.1992. There is absolutely no explanation given by the prosecution for the inordinate delay in lodging the complaint and registering the case. The independent witnesses examined by the prosecution have not supported the case. As per last seen theory projected by the prosecution the deceased Ramsevak was last seen alive in the company of the appellant on 7.10.1992 and after 7 days the bones and clothes allegedly belonging to Ramsevak came to be noticed and thereafter seized from the field. At this juncture, it is pertinent to point out that they were not seized/recovered pursuant to any information furnished by the accused. 9. The contention for the learned counsel for the appellant that the prosecution has not even established the death of Ramsevak cannot be brushed aside. The investigation officer seized the bones from the field vide Exh.P13 and sent them for autopsy. PW6 Dr. Arvind Bhat in his report Exh.P10 gave an account of the bones forming the skeleton. Thereafter they were sent to Medical College, Raipur, and PW10 Dr. Sapan Kumar Das examined them and gave Exh.P23 opinion stating that the bones are of human origin and they belonged to male aged between 25 to 40 years and there were no marks of injury in any of the bones and the cause of death cannot be said and the death could have occurred within 6 months prior to the date of examination. The Investigation Officer did not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak. In short the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise. 10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil Nadu [(2014) 12 SCC 279, held as follows: “21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372) “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”22. This Court in Bodhraj v. State of J&K (2002) 8 SCC 45 ) held that:“31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438 ), this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed. 12. In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside. | 1[ds]12. In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set | 1 | 2,614 | 86 | ### 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:
for 7 days and then again went to the Police Station and lodged the complaint. As already stated PW3 Dasmatiya Bai in her complaint as well as her statement before the police has not told that she witnessed the occurrence during which both the accused assaulted her husband with lathi and Danda. Only in her testimony before the Court she claimed to have witnessed the occurrence. The High Court has rightly ignored the improved part of her testimony and placed no reliance on it. 8. The bones, articles, clothes and shoes allegedly belonging to Ramsevak were recovered on 15.10.1992. Exh.P2 Morgue given by Dasmatiya Bai was recorded and the FIR came to be registered on 15.10.1992. There is absolutely no explanation given by the prosecution for the inordinate delay in lodging the complaint and registering the case. The independent witnesses examined by the prosecution have not supported the case. As per last seen theory projected by the prosecution the deceased Ramsevak was last seen alive in the company of the appellant on 7.10.1992 and after 7 days the bones and clothes allegedly belonging to Ramsevak came to be noticed and thereafter seized from the field. At this juncture, it is pertinent to point out that they were not seized/recovered pursuant to any information furnished by the accused. 9. The contention for the learned counsel for the appellant that the prosecution has not even established the death of Ramsevak cannot be brushed aside. The investigation officer seized the bones from the field vide Exh.P13 and sent them for autopsy. PW6 Dr. Arvind Bhat in his report Exh.P10 gave an account of the bones forming the skeleton. Thereafter they were sent to Medical College, Raipur, and PW10 Dr. Sapan Kumar Das examined them and gave Exh.P23 opinion stating that the bones are of human origin and they belonged to male aged between 25 to 40 years and there were no marks of injury in any of the bones and the cause of death cannot be said and the death could have occurred within 6 months prior to the date of examination. The Investigation Officer did not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak. In short the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise. 10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil Nadu [(2014) 12 SCC 279, held as follows: “21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372) “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”22. This Court in Bodhraj v. State of J&K (2002) 8 SCC 45 ) held that:“31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438 ), this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed. 12. In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside.
### Response:
1
### Explanation:
12. In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set
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Bhagat Ram Batra Vs. Union of India and Others | KHANNA, J.1. This is an appeal an certificate by Bhagat Ram Batra against the order of the Punjab and Haryana High Court whereby a petition under Article 226 of the Constitution of India filed by the appellant against the Union of India and three others was dismissed in limine.2. The appellant is a displaced person. On October 15, 1959 evacuee property 2 N. A. C. Ambala City was sold by public auction. The appellant gave the highest bid of Rs. 72, 700 and his bid was accepted. The appellant wanted Rs. 45, 620.05 paise, on account of compensation for the claim in respect of his property left in Pakistan, to be adjusted towards the sale price. Before the appellant could pay the balance of the price, he made a representation to the rehabilitation authorities that there had been an encroachment upon the property for which he had given the bid by the owner of the adjoining property and that the area of the property auctioned in his (the appellants) favour was less than the area mentioned at the time of the auction sale. The rehabilitation authorities inspected the spot and found that the area of the property in fact was less that assessed by the valuation unit.3. In his letter dated March 12, 1963, the appellant wrote to the Regional Settlement Commissioner that as the area of the property sold in his favour was less than what had been represented at the time of the auction sale, he was "not liable in purchase of the property, i.e., bungalow 2 N. A. C. Ambala City and am free from all liabilities". The Managing Officer (Sales) as per order dated July 21, 1966 cancelled the sale in favour of the appellant and directed that the property in question be resold by public auction. The property was thereafter resold by public auction on September 24, 1966 for rupees one lakh one thousand in favour of respondent No. 4. As the price of the property had appreciated, the appellant went up in appeal against the order of the Managing Officer and prayed that the auction sale in his favour should not have been cancelled. The appeal of the appellant was dismissed by the Assistant Settlement Commissioner as per order dated October 31, 1966. Revision filed by the appellant to the Chief Settlement Commissioner also met the same fate as per order dated May 17, 1969. The appellant then filed a writ petition before the Punjab and Haryana High Court to challenge the orders dated July 21, 1966, October 31, 1966 and May 17, 1969, but the said petition, as already stated above, was dismissed in limine.4. We have heard Mr. Naunit Lal on behalf of the appellant and are of the opinion that there is no merit in this appeal. As would appear from the resume of the facts given above, the appellant did not stick to the auction sale in his favour, because he found that the area of the property sold in his favour was less than what had been represented at the time of the auction sale. It was at the instance of the appellant that the Managing Officer cancelled the auction sale in favour of the appellant. The appellant, it seems, subsequently realised that as the value of the property had appreciated, he should not have asked for cancellation of the auction sale in his favour. This was, however, too late, because an order has already been made by the Managing Officer for the resale of the property. As it is, we find that as a result of the resale, the property fetched a price of rupees one lakh one thousand as against the price of Rs. 72, 700 offered by the appellant. An offer was also made by the appellant that he was prepared to accept the property in dispute if the rehabilitation authorities allowed proportionate reduction in the price offered by him on account of the fact that the area of the property had been found to be less than what had been represented at the time of the auction sale. This was a conditional offer and the rehabilitation authorities were not bound to accept that offer. | 0[ds]4. We have heard Mr. Naunit Lal on behalf of the appellant and are of the opinion that there is no merit in this appeal. As would appear from the resume of the facts given above, the appellant did not stick to the auction sale in his favour, because he found that the area of the property sold in his favour was less than what had been represented at the time of the auction sale. It was at the instance of the appellant that the Managing Officer cancelled the auction sale in favour of the appellant. The appellant, it seems, subsequently realised that as the value of the property had appreciated, he should not have asked for cancellation of the auction sale in his favour. This was, however, too late, because an order has already been made by the Managing Officer for the resale of the property. As it is, we find that as a result of the resale, the property fetched a price of rupees one lakh one thousand as against the price of Rs. 72, 700 offered by the appellant. An offer was also made by the appellant that he was prepared to accept the property in dispute if the rehabilitation authorities allowed proportionate reduction in the price offered by him on account of the fact that the area of the property had been found to be less than what had been represented at the time of the auction sale. This was a conditional offer and the rehabilitation authorities were not bound to accept that offer. | 0 | 767 | 283 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
KHANNA, J.1. This is an appeal an certificate by Bhagat Ram Batra against the order of the Punjab and Haryana High Court whereby a petition under Article 226 of the Constitution of India filed by the appellant against the Union of India and three others was dismissed in limine.2. The appellant is a displaced person. On October 15, 1959 evacuee property 2 N. A. C. Ambala City was sold by public auction. The appellant gave the highest bid of Rs. 72, 700 and his bid was accepted. The appellant wanted Rs. 45, 620.05 paise, on account of compensation for the claim in respect of his property left in Pakistan, to be adjusted towards the sale price. Before the appellant could pay the balance of the price, he made a representation to the rehabilitation authorities that there had been an encroachment upon the property for which he had given the bid by the owner of the adjoining property and that the area of the property auctioned in his (the appellants) favour was less than the area mentioned at the time of the auction sale. The rehabilitation authorities inspected the spot and found that the area of the property in fact was less that assessed by the valuation unit.3. In his letter dated March 12, 1963, the appellant wrote to the Regional Settlement Commissioner that as the area of the property sold in his favour was less than what had been represented at the time of the auction sale, he was "not liable in purchase of the property, i.e., bungalow 2 N. A. C. Ambala City and am free from all liabilities". The Managing Officer (Sales) as per order dated July 21, 1966 cancelled the sale in favour of the appellant and directed that the property in question be resold by public auction. The property was thereafter resold by public auction on September 24, 1966 for rupees one lakh one thousand in favour of respondent No. 4. As the price of the property had appreciated, the appellant went up in appeal against the order of the Managing Officer and prayed that the auction sale in his favour should not have been cancelled. The appeal of the appellant was dismissed by the Assistant Settlement Commissioner as per order dated October 31, 1966. Revision filed by the appellant to the Chief Settlement Commissioner also met the same fate as per order dated May 17, 1969. The appellant then filed a writ petition before the Punjab and Haryana High Court to challenge the orders dated July 21, 1966, October 31, 1966 and May 17, 1969, but the said petition, as already stated above, was dismissed in limine.4. We have heard Mr. Naunit Lal on behalf of the appellant and are of the opinion that there is no merit in this appeal. As would appear from the resume of the facts given above, the appellant did not stick to the auction sale in his favour, because he found that the area of the property sold in his favour was less than what had been represented at the time of the auction sale. It was at the instance of the appellant that the Managing Officer cancelled the auction sale in favour of the appellant. The appellant, it seems, subsequently realised that as the value of the property had appreciated, he should not have asked for cancellation of the auction sale in his favour. This was, however, too late, because an order has already been made by the Managing Officer for the resale of the property. As it is, we find that as a result of the resale, the property fetched a price of rupees one lakh one thousand as against the price of Rs. 72, 700 offered by the appellant. An offer was also made by the appellant that he was prepared to accept the property in dispute if the rehabilitation authorities allowed proportionate reduction in the price offered by him on account of the fact that the area of the property had been found to be less than what had been represented at the time of the auction sale. This was a conditional offer and the rehabilitation authorities were not bound to accept that offer.
### Response:
0
### Explanation:
4. We have heard Mr. Naunit Lal on behalf of the appellant and are of the opinion that there is no merit in this appeal. As would appear from the resume of the facts given above, the appellant did not stick to the auction sale in his favour, because he found that the area of the property sold in his favour was less than what had been represented at the time of the auction sale. It was at the instance of the appellant that the Managing Officer cancelled the auction sale in favour of the appellant. The appellant, it seems, subsequently realised that as the value of the property had appreciated, he should not have asked for cancellation of the auction sale in his favour. This was, however, too late, because an order has already been made by the Managing Officer for the resale of the property. As it is, we find that as a result of the resale, the property fetched a price of rupees one lakh one thousand as against the price of Rs. 72, 700 offered by the appellant. An offer was also made by the appellant that he was prepared to accept the property in dispute if the rehabilitation authorities allowed proportionate reduction in the price offered by him on account of the fact that the area of the property had been found to be less than what had been represented at the time of the auction sale. This was a conditional offer and the rehabilitation authorities were not bound to accept that offer.
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Speech & Software Technologies (India) Pvt. Ltd Vs. Neos Interactive Ltd | a period of fifteen days from the expiry of the previous month. Clause 10 of the said agreement provides for consequences which would ensue on termination of the agreement, whereas clause 19 enables the aggrieved party to approach arbitrator for resolution of the disputes. It is relevant to note that by letter dated February 15, 2007 the applicant had terminated the Services Agreement and appointed its sole arbitrator as well as called upon the respondent to concur with the said appointment or to appoint its arbitrator. It is an admitted fact that no reply was given by the respondent to the said notice. It is also relevant to notice that the execution of the Services Agreement dated July 15, 2006 is not denied by the respondent. What is claimed by the respondent is that the Services Agreement ceased to exist in view of termination of Tripartite Share Purchase Agreement. 10. From the record of the case it becomes at once evident that the Services Agreement dated July 15, 2006 was never a schedule to the Tripartite Share Purchase Agreement. This becomes clear from the contents of clauses 5.2 and 5.2.5 of the Tripartite Share Purchase Agreement dated August 1, 2006. Clause 5 of the Tripartite Share Purchase Agreement, which is to be found on running page 99 of the short counter affidavit filed on behalf of the respondent, provides the venue where completion of the said agreement would take place and also mentions post completion obligations. According to clause 5.1 of the said agreement, completion was to take place at a venue to be agreed between the applicant and Abela on the second business day after the day on which the conditions stipulated were satisfied. The consequences which were to follow on the completion of the Tripartite Share Purchase Agreement are mentioned in clause 5.2. Clause 5.2.5 of the agreement reads as under: - SST and the Company shall enter into the Services Agreement and Shareholders Agreement (SHA) as per drafts given in Schedule A and B. It is the specific case of the respondent that the Tripartite Share Purchase Agreement dated July 15, 2006, of which Schedules A and B were intrinsic and inseparable parts, stood automatically terminated on July 31, 2006 owing to non-completion of the material conditions as postulated in clause 3.4 of the agreement, without any further obligations, liability or claim between the parties under the agreement. As the Tripartite Share Purchase Agreement automatically stood terminated due to non-completion of the conditions mentioned in clause 3.4 of the agreement, there was no obligation on the applicant to enter into the Services Agreement, draft of which was annexed to the Tripartite Share Purchase Agreement as Schedule A or Shareholders Agreement, draft of which was produced as Schedule B to the agreement. It is not the case of the respondent at all that the draft of the Services Agreement was signed by the applicant at any point of time. Hence, automatic termination of Tripartite Share Purchase Agreement has nothing to do with the existence of the Services Agreement dated July 15, 2006, which was already separately executed between the parties. The record would indicate that the Services Agreement was executed before the Tripartite Share Purchase Agreement was executed. The existence of the said agreement was not dependent upon the completion of events as contemplated by the Tripartite Share Purchase Agreement and, therefore, it is wrong to contend that the Services Agreement ceased to exist on termination of the Tripartite Share Purchase Agreement. 11. Similarly, the plea that the Tripartite Share Purchase Agreement was novated, rescinded and revoked on account of Letter of Intent dated August 1, 2006 and, therefore, the instant application should be rejected, has no force. The Letter of Intent dated August 1, 2006 under no circumstances can be treated as novating, rescinding or revoking the Tripartite Share Purchase Agreement. The said Letter of Intent on a bare reading is nothing but an agreement to enter into another agreement because it is provided in the said letter that both parties agree to have set a deadline to sign this agreement by 15th September, 2006. It is well settled legal position that an agreement to enter into an agreement is not enforceable nor does it confer any right upon the parties. The agreement in terms of the said Letter of Intent was to be signed on or before September 15, 2006. It is not the case of the respondent that any agreement was executed between the parties on or before September 15, 2006. The respondent has not stated in its counter reply that the agreement, which was to be executed by September 15, 2006, was in fact executed. During the course of hearing of the instant application it was fairly conceded by the learned counsel for the respondent that no such agreement was executed between the parties at all. Hence, as the agreement contemplated by the Letter of Intent was never executed, it cannot be said that the agreement contemplated by the said Letter of Intent had novated, rescinded or superseded the Tripartite Share Purchase Agreement. Further, the scope/terms of the Tripartite Share Purchase Agreement as well as those of the Services Agreement and the terms contemplated by Letter of Intent dated August 1, 2006 are not consistent at all and, therefore, it is difficult to hold that novation of the Tripartite Share Purchase Agreement read with the Services Agreement had taken place, as contended by the respondent. 12. The net result of the above discussion is that the Services Agreement dated July 15, 2006 has not ceased to exist and the applicant is entitled to invoke the arbitration clause contained in that agreement. The application filed by the applicant is within the time prescribed by law. There is no manner of doubt that disputes are existing between the parties relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted. 13. | 1[ds]The net result of the above discussion is that the Services Agreement dated July 15, 2006 has not ceased to exist and the applicant is entitled to invoke the arbitration clause contained in that agreement. The application filed by the applicant is within the time prescribed by law. There is no manner of doubt that disputes are existing between the parties relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted. | 1 | 2,459 | 99 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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a period of fifteen days from the expiry of the previous month. Clause 10 of the said agreement provides for consequences which would ensue on termination of the agreement, whereas clause 19 enables the aggrieved party to approach arbitrator for resolution of the disputes. It is relevant to note that by letter dated February 15, 2007 the applicant had terminated the Services Agreement and appointed its sole arbitrator as well as called upon the respondent to concur with the said appointment or to appoint its arbitrator. It is an admitted fact that no reply was given by the respondent to the said notice. It is also relevant to notice that the execution of the Services Agreement dated July 15, 2006 is not denied by the respondent. What is claimed by the respondent is that the Services Agreement ceased to exist in view of termination of Tripartite Share Purchase Agreement. 10. From the record of the case it becomes at once evident that the Services Agreement dated July 15, 2006 was never a schedule to the Tripartite Share Purchase Agreement. This becomes clear from the contents of clauses 5.2 and 5.2.5 of the Tripartite Share Purchase Agreement dated August 1, 2006. Clause 5 of the Tripartite Share Purchase Agreement, which is to be found on running page 99 of the short counter affidavit filed on behalf of the respondent, provides the venue where completion of the said agreement would take place and also mentions post completion obligations. According to clause 5.1 of the said agreement, completion was to take place at a venue to be agreed between the applicant and Abela on the second business day after the day on which the conditions stipulated were satisfied. The consequences which were to follow on the completion of the Tripartite Share Purchase Agreement are mentioned in clause 5.2. Clause 5.2.5 of the agreement reads as under: - SST and the Company shall enter into the Services Agreement and Shareholders Agreement (SHA) as per drafts given in Schedule A and B. It is the specific case of the respondent that the Tripartite Share Purchase Agreement dated July 15, 2006, of which Schedules A and B were intrinsic and inseparable parts, stood automatically terminated on July 31, 2006 owing to non-completion of the material conditions as postulated in clause 3.4 of the agreement, without any further obligations, liability or claim between the parties under the agreement. As the Tripartite Share Purchase Agreement automatically stood terminated due to non-completion of the conditions mentioned in clause 3.4 of the agreement, there was no obligation on the applicant to enter into the Services Agreement, draft of which was annexed to the Tripartite Share Purchase Agreement as Schedule A or Shareholders Agreement, draft of which was produced as Schedule B to the agreement. It is not the case of the respondent at all that the draft of the Services Agreement was signed by the applicant at any point of time. Hence, automatic termination of Tripartite Share Purchase Agreement has nothing to do with the existence of the Services Agreement dated July 15, 2006, which was already separately executed between the parties. The record would indicate that the Services Agreement was executed before the Tripartite Share Purchase Agreement was executed. The existence of the said agreement was not dependent upon the completion of events as contemplated by the Tripartite Share Purchase Agreement and, therefore, it is wrong to contend that the Services Agreement ceased to exist on termination of the Tripartite Share Purchase Agreement. 11. Similarly, the plea that the Tripartite Share Purchase Agreement was novated, rescinded and revoked on account of Letter of Intent dated August 1, 2006 and, therefore, the instant application should be rejected, has no force. The Letter of Intent dated August 1, 2006 under no circumstances can be treated as novating, rescinding or revoking the Tripartite Share Purchase Agreement. The said Letter of Intent on a bare reading is nothing but an agreement to enter into another agreement because it is provided in the said letter that both parties agree to have set a deadline to sign this agreement by 15th September, 2006. It is well settled legal position that an agreement to enter into an agreement is not enforceable nor does it confer any right upon the parties. The agreement in terms of the said Letter of Intent was to be signed on or before September 15, 2006. It is not the case of the respondent that any agreement was executed between the parties on or before September 15, 2006. The respondent has not stated in its counter reply that the agreement, which was to be executed by September 15, 2006, was in fact executed. During the course of hearing of the instant application it was fairly conceded by the learned counsel for the respondent that no such agreement was executed between the parties at all. Hence, as the agreement contemplated by the Letter of Intent was never executed, it cannot be said that the agreement contemplated by the said Letter of Intent had novated, rescinded or superseded the Tripartite Share Purchase Agreement. Further, the scope/terms of the Tripartite Share Purchase Agreement as well as those of the Services Agreement and the terms contemplated by Letter of Intent dated August 1, 2006 are not consistent at all and, therefore, it is difficult to hold that novation of the Tripartite Share Purchase Agreement read with the Services Agreement had taken place, as contended by the respondent. 12. The net result of the above discussion is that the Services Agreement dated July 15, 2006 has not ceased to exist and the applicant is entitled to invoke the arbitration clause contained in that agreement. The application filed by the applicant is within the time prescribed by law. There is no manner of doubt that disputes are existing between the parties relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted. 13.
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The net result of the above discussion is that the Services Agreement dated July 15, 2006 has not ceased to exist and the applicant is entitled to invoke the arbitration clause contained in that agreement. The application filed by the applicant is within the time prescribed by law. There is no manner of doubt that disputes are existing between the parties relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted.
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The State Of West Bengal Vs. Subodh Gopal Bose And Others | is obvious that the framers of our Constitution shared the American view and included Part III in the Constitution of India. It is, therefore, a wrong approach to construe the articles of Part III by pointing to the British way, which is more a traditional than a constitutional way, of protecting the rights and liberties of the individual by making Parliament supreme.24. On this view of the meaning and effect of Art. 31, the question is whether S. 7 read with S. 4 of the amending Act infringes the fundamental right of the respondent under that article. These provisions by their retrospective operation undoubtedly abridge the respondents rights of property by nullifying one of the incidents of the estate purchased by him at the revenue sale, namely, the right to annul certain kinds of under-tenures and evict certain classes of under tenants in occupation of portions of the estate. Does such abridgement amount to deprivation of property within the meaning of Art. 31 as interpreted above, and if so, does it fall within the exception in cl. (5) (b) (ii) of that article ?25. Now, the word "property" in the context of Art. 31 which is designed to protect private property in all its forms, must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others. This wide connotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of Art. 31 (2), for any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of he rights thereto fore exercised by owner.The American courts have experienced similar difficulty in deciding whether a given statutory abridgement of the rights of the owner is an exercise of the "police power" for which no compensation can be claimed or a taking of property within the meaning of the Fifth Amendment clause "Nor shall private property be taken for public use without just compensation". "The general rule at least said Holmes" J, in delivering the majority opinion in --- "Pennsylvania Coal Co. v. Mahon. (1922) 260 US 393 (J). "is that while property may be regulated to ;certain extent, if regulation goes too far, it will be recognised as a taking".The vague and expansive doctrine of "police power" and the use of the term "taken" in the Fifth Amendment construed in a very wide sense so as to cover any injury or damage to property, coupled with the equally vague and expansive concept of due process, allow a greater freedom of action to the American courts in accommodating and adjusting, on what may seem to them a just basis, the conflicting demands of police power and the constitutional prohibition of the Fifth Amendment. Under the Constitution of India, however, such questions must be determined with reference to the expression "taken possession of or acquired" as interpreted above, namely, that it must be read along with the word deprived in cl. (I) and understood as having reference to such substantial abridgement of the rights of owner ship as would amount to deprivation of the owner of his property.No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of Art. 31; each case must be decided as it arises on its own facts. Broadly speaking, it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of Art. 31 if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value.26. The learned Judges of the High Court did not consider the case from this point of view. As has been stated, they applied Art. 19 (1) (f) and (5) and held that S. 7 of the amending Act, by its retrospective operation, imposed on the respondents enjoyment of the property purchased by him at the revenue sale restrictions which were not reasonable. That view, for reasons already indicated, cannot be accepted and the matter has to be looked at from the point of view of Art. 31 as interpreted above.A comparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annul under-tenures and evict under-tenants is curtailed by new S. 37 by enlarging the scope of the exceptions in the old section, it entitles the purchaser as a countervailing advantage, to enhance the rent payable by the tenure-holders and tenants newly brought within the exception. The purchaser is left free in other respects to continue in enjoyment of the property as before.In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits of the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to charging conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Arts. 31 (1) and (2). No question accordingly arises as to the applicability of Cl. (5) (b) (ii) to the case. | 1[ds]6. It will be convenient to deal first with the latter contention of thee (f) of cl. (1) of Art. 19 has, in my opinion, no application to the case. That article enumerates certain freedoms under the caption "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. The freedoms declared in(a) to (e) and (g) are clearly of that description and in such context(f) should. I think, also be understood as declaring the freedom appertaining to the citizen of free India in the matter of acquisition, possession and disposal of private property. In other words, it declares the citizens right to own property and has no reference to the right to the property owned by him, which is dealt with in Art.all these reasons. I am of opinion that under the scheme of the Constitution, all those broad and basic freedoms inherent in the status of a citizens as a free man are embodied and protected from invasion by the State under cl. (1) of Art. 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls. (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in Art. 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in Para, (iii) of(b) of cl. (5) of Art. 31 and exempted from liability to pay compensation under cl.am of opinion that the word "acquisition" and its grammatical variations should, in the context of Art. 31 and the Entries in the Lists referred to above, be understood in their ordinary sense, and the additional words "taking possession of "or "requisitioning" are used in Art. 31 (2) and in the Entries respectively, not in contradistinction with, but in amplification of the term "acquisition" so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired. They would, for instance, include destruction which implies the reducing into possession of the thing sought to be destroyed as a necessary step to thatcomparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annulnts iscurtailed by new S. 37 by enlarging the scope of the exceptions in the old section, it entitles the purchaser as a countervailing advantage, to enhance the rent payable by theand tenants newly brought within theis left free in other respects to continue in enjoyment of the property as before.In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits of the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to charging conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Arts. 31 (1) and (2). No question accordingly arises as to the applicability of Cl. (5) (b) (ii) to theI see some force in this argument I am, nevertheless, not convinced that the fact of the statute being given retrospective operation may not be properly taken into consideration in determining the reasonableness of the restriction imposed in the interest of the general public. Nor am I satisfied that the loss occasioned to the purchaser by reducing, without any abatement of the purchase price, an estate in profession into one in reversion may not also be taken into account in determining the reasonableness of the restrictions permissible under Article 19 (5).Aperusal of clause (5) of Article 31 which I have already quoted will at once show that clause excepts certain laws from the operation of clause (2) only. It will also appear that the exception covers, under(b), only certain kinds of future laws. Item (i) under(b) comprises future laws imposing or levying any tax or penalty. Item (ii) under thatsaves future laws for the promotion of public health or the prevention of danger to life or property. It is said that this clause (5) (b) (ii) saves laws to be made in exercise of the States police power.The argument is that the States police power of imposing "restrictions" on the citizens right to acquire, hold and dispose of property is recognised and controlled by clause (5) of Article 19 and that when it become necessary for the police power to extend beyond "restrictions and to inflict "deprivation" of property it can do so by the kind of law which is by clause (5) (b) (ii) of Article 31, saved from the operation of clause (2).It is pointed out that in the matter of imposition of "restrictions" on the exercise of the right to acquire hold and dispose of property the only limitation on the police power is that the "restrictions" to be imposed by law must be reasonable as indicated in Article 19(5) but that in the matter of "deprivation" of property by authority of law under Article 31 the limitation on the police power is more stringent namely, that such law may be made only for the promotion of public health or the prevention of danger to life or property as mentioned in clause (5)(b) (ii) and for no otherseems to follow the enumeration of the classes of property in Article 31 (2) to which it is applicable and also by reason of the broader consideration that from point of view of the owner or possessor whose title or possession is appropriated, every such act of appropriation stands on the same footing. That the idea of transference of title or possession is not necessarily to be implied by Article 31 (5) (b) (ii), which more often than not, would cover cases of destruction ofI may mean that I am inclined to the view, in agreement with my Lord the Chief Justice, that Article 31 (5) (b) (ii) is an exception to Article 31 (2) and is intended to absolve the need for payment of compensation for "acquisition" or "taking possession" of property for the purposes specified therein. It, therefore, seems to imply payment of compensation if such "acquisition" or "taking possession" of property is for other purposes.The question then remains as to what is "property" contemplated by Article 31 (2), apart from the specified categories included therein by enumeration in the phrase "any interest in, or in any company owning, any commercial or industrial undertaking". It is no doubt true that in a wide sense, property connotes not only a concretebut all the bundle of rights which constitute the ownership thereof and probably also each individual right out of that bundle in relation to such ownership. But the context of Article 31in the cognate context of Article 19(1)(f)the connotation of the word is limited by the accompanying words "acquisition" and "takingout of the general and wide category falling within the connotation of the word "property" only that which can be the subject matter of "acquisition" or "taking possession", is the "property" which is within the scope of Article 31(2). This to my mind excludes, for instance a bare individual right, out of the bundle of rights which go to make up property as being itself property for purposes of Article 31 (2), unless such individual right is in itself recognised by law as property or as an interest in propertyan easement, aand the likeand as capable of distinctive acquisition orfor instance in the case with which we are concerned in the present appeal, the right to annulcannot in itself be treated as property, for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the rights as regards to main property itself and hence must fall under Article 19(5), according to my understanding thereof.In my view, however, the word "property" as used in Article 31(1) may have been intended to be understood. In a wider sense and deprivation of any individual right out of a bundle of rights constituting concrete property may be deprivation of "property" which would require the authority of law. I am aware of the possible criticism that in two parts of the same article the same word must be intended to have been used in the same sense. While this is a normal rule of construction, it can yield to the requirement of the context arising from the juxtaposition of other words ormy mind Article 31(1), though part of an Article is in essence an independent provision to some extent overlapping with the requirements of the law of the Eminent Domain. It is on a par with Art. 21. It seems to me to serve a distinct purpose over and above that relating to the law of the Eminent Domain viz., that it relates also to deprivation of property other than that which may fall within the scope of Article 31(2). It enjoins that such deprivation shall not be brought about above by the authority of law. | 1 | 10,670 | 1,889 | ### 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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is obvious that the framers of our Constitution shared the American view and included Part III in the Constitution of India. It is, therefore, a wrong approach to construe the articles of Part III by pointing to the British way, which is more a traditional than a constitutional way, of protecting the rights and liberties of the individual by making Parliament supreme.24. On this view of the meaning and effect of Art. 31, the question is whether S. 7 read with S. 4 of the amending Act infringes the fundamental right of the respondent under that article. These provisions by their retrospective operation undoubtedly abridge the respondents rights of property by nullifying one of the incidents of the estate purchased by him at the revenue sale, namely, the right to annul certain kinds of under-tenures and evict certain classes of under tenants in occupation of portions of the estate. Does such abridgement amount to deprivation of property within the meaning of Art. 31 as interpreted above, and if so, does it fall within the exception in cl. (5) (b) (ii) of that article ?25. Now, the word "property" in the context of Art. 31 which is designed to protect private property in all its forms, must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others. This wide connotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of Art. 31 (2), for any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of he rights thereto fore exercised by owner.The American courts have experienced similar difficulty in deciding whether a given statutory abridgement of the rights of the owner is an exercise of the "police power" for which no compensation can be claimed or a taking of property within the meaning of the Fifth Amendment clause "Nor shall private property be taken for public use without just compensation". "The general rule at least said Holmes" J, in delivering the majority opinion in --- "Pennsylvania Coal Co. v. Mahon. (1922) 260 US 393 (J). "is that while property may be regulated to ;certain extent, if regulation goes too far, it will be recognised as a taking".The vague and expansive doctrine of "police power" and the use of the term "taken" in the Fifth Amendment construed in a very wide sense so as to cover any injury or damage to property, coupled with the equally vague and expansive concept of due process, allow a greater freedom of action to the American courts in accommodating and adjusting, on what may seem to them a just basis, the conflicting demands of police power and the constitutional prohibition of the Fifth Amendment. Under the Constitution of India, however, such questions must be determined with reference to the expression "taken possession of or acquired" as interpreted above, namely, that it must be read along with the word deprived in cl. (I) and understood as having reference to such substantial abridgement of the rights of owner ship as would amount to deprivation of the owner of his property.No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of Art. 31; each case must be decided as it arises on its own facts. Broadly speaking, it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of Art. 31 if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value.26. The learned Judges of the High Court did not consider the case from this point of view. As has been stated, they applied Art. 19 (1) (f) and (5) and held that S. 7 of the amending Act, by its retrospective operation, imposed on the respondents enjoyment of the property purchased by him at the revenue sale restrictions which were not reasonable. That view, for reasons already indicated, cannot be accepted and the matter has to be looked at from the point of view of Art. 31 as interpreted above.A comparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annul under-tenures and evict under-tenants is curtailed by new S. 37 by enlarging the scope of the exceptions in the old section, it entitles the purchaser as a countervailing advantage, to enhance the rent payable by the tenure-holders and tenants newly brought within the exception. The purchaser is left free in other respects to continue in enjoyment of the property as before.In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits of the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to charging conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Arts. 31 (1) and (2). No question accordingly arises as to the applicability of Cl. (5) (b) (ii) to the case.
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Cl. (5) (b) (ii) to theI see some force in this argument I am, nevertheless, not convinced that the fact of the statute being given retrospective operation may not be properly taken into consideration in determining the reasonableness of the restriction imposed in the interest of the general public. Nor am I satisfied that the loss occasioned to the purchaser by reducing, without any abatement of the purchase price, an estate in profession into one in reversion may not also be taken into account in determining the reasonableness of the restrictions permissible under Article 19 (5).Aperusal of clause (5) of Article 31 which I have already quoted will at once show that clause excepts certain laws from the operation of clause (2) only. It will also appear that the exception covers, under(b), only certain kinds of future laws. Item (i) under(b) comprises future laws imposing or levying any tax or penalty. Item (ii) under thatsaves future laws for the promotion of public health or the prevention of danger to life or property. It is said that this clause (5) (b) (ii) saves laws to be made in exercise of the States police power.The argument is that the States police power of imposing "restrictions" on the citizens right to acquire, hold and dispose of property is recognised and controlled by clause (5) of Article 19 and that when it become necessary for the police power to extend beyond "restrictions and to inflict "deprivation" of property it can do so by the kind of law which is by clause (5) (b) (ii) of Article 31, saved from the operation of clause (2).It is pointed out that in the matter of imposition of "restrictions" on the exercise of the right to acquire hold and dispose of property the only limitation on the police power is that the "restrictions" to be imposed by law must be reasonable as indicated in Article 19(5) but that in the matter of "deprivation" of property by authority of law under Article 31 the limitation on the police power is more stringent namely, that such law may be made only for the promotion of public health or the prevention of danger to life or property as mentioned in clause (5)(b) (ii) and for no otherseems to follow the enumeration of the classes of property in Article 31 (2) to which it is applicable and also by reason of the broader consideration that from point of view of the owner or possessor whose title or possession is appropriated, every such act of appropriation stands on the same footing. That the idea of transference of title or possession is not necessarily to be implied by Article 31 (5) (b) (ii), which more often than not, would cover cases of destruction ofI may mean that I am inclined to the view, in agreement with my Lord the Chief Justice, that Article 31 (5) (b) (ii) is an exception to Article 31 (2) and is intended to absolve the need for payment of compensation for "acquisition" or "taking possession" of property for the purposes specified therein. It, therefore, seems to imply payment of compensation if such "acquisition" or "taking possession" of property is for other purposes.The question then remains as to what is "property" contemplated by Article 31 (2), apart from the specified categories included therein by enumeration in the phrase "any interest in, or in any company owning, any commercial or industrial undertaking". It is no doubt true that in a wide sense, property connotes not only a concretebut all the bundle of rights which constitute the ownership thereof and probably also each individual right out of that bundle in relation to such ownership. But the context of Article 31in the cognate context of Article 19(1)(f)the connotation of the word is limited by the accompanying words "acquisition" and "takingout of the general and wide category falling within the connotation of the word "property" only that which can be the subject matter of "acquisition" or "taking possession", is the "property" which is within the scope of Article 31(2). This to my mind excludes, for instance a bare individual right, out of the bundle of rights which go to make up property as being itself property for purposes of Article 31 (2), unless such individual right is in itself recognised by law as property or as an interest in propertyan easement, aand the likeand as capable of distinctive acquisition orfor instance in the case with which we are concerned in the present appeal, the right to annulcannot in itself be treated as property, for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the rights as regards to main property itself and hence must fall under Article 19(5), according to my understanding thereof.In my view, however, the word "property" as used in Article 31(1) may have been intended to be understood. In a wider sense and deprivation of any individual right out of a bundle of rights constituting concrete property may be deprivation of "property" which would require the authority of law. I am aware of the possible criticism that in two parts of the same article the same word must be intended to have been used in the same sense. While this is a normal rule of construction, it can yield to the requirement of the context arising from the juxtaposition of other words ormy mind Article 31(1), though part of an Article is in essence an independent provision to some extent overlapping with the requirements of the law of the Eminent Domain. It is on a par with Art. 21. It seems to me to serve a distinct purpose over and above that relating to the law of the Eminent Domain viz., that it relates also to deprivation of property other than that which may fall within the scope of Article 31(2). It enjoins that such deprivation shall not be brought about above by the authority of law.
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Vithal Dattatraya Kulkarni and Others Vs. Shamrao Tukaram Power and Others | which the death of the tenant took p lace in those cases Section 40 as amended in 1956 had not come into force, whereas, in the case before the Full Bench the tenant had died after Section 40 was amended in 1956. In the case now before us, however, the death of the tenant took place before the Bombay Tenancy and Agricultural Lands Act was amended in 1956. We have already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritable right.Shri Karkhanis, learned Counsel for the respondents relied on the decision of this Court in Damadilal &Ors. v. Parashram &Ors. (1) and argued that a statutory tenancy was heritable like a contractual tenancy. This Court did not lay down the wide proposition that every statutory tenancy was heritable but the Court did quite definitely lay down that it would be wrong to import the notions of English law relating to "statutory tenancy" and on that basis to hold that it was not transferable or heritable. It was observed by A. C. Gupta, J., as follows:"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the e state he had in the premises in his occupation. It is not possible to claim that the "sanctity" of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy."7. The learned Judge thereafter referred to the definition of tenant in the Madhya Pradesh Act and held that the definition made a person continuing in possession after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against him, thus putting him at par with a person whose contractual tenancy still subsisted. It was observed that the incidents of such tenancy and the contractual tenancy had to be the same in the absence of a contrary intention conveyed by any pro vision of the Act. It was further observed that the so called statutory tenant had, under Section 14 of the Madhya Pradesh Act, the right to sublet in common with the contractual tenant and, therefore, he must be said to have an interest in the premises occupied by him.8. Thus the question whether a tenancy other than a contractual tenancy has any or all the incidents of a contractual tenancy has to be decided with reference to the provisions of the particular statute. Though Section 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956. | 1[ds]The position was clear und er the Bombay Tenancy Act, 1939. Explanation II to Section 7 of that Act expressly provided that for the purposes of the Section a tenant included his heirs, as specified in Section 9(3). The position under the Bombay Tenancy and Agricultural Land s Act, 1948, after it was amended in 1956 is also quite clear. Section 4B and Section 40 show that the tenancy under the Act is heritable. As already mentioned, while Section 4B provides for the continuation of the tenancy even after the expiry of the period fixed by the agreement or usage, Section 40 expressly provides for the continuation of the tenancy on the death of the tenant, the heirs of the tenant stepping into the position of the tenant. Once it is found that the tenancy is heritable it follows that the right given to the tenant under Section 37(1) may be exercised by the heirs of the tenanthave already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions ofthe Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritableSection 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956. | 1 | 4,687 | 626 | ### Instruction:
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which the death of the tenant took p lace in those cases Section 40 as amended in 1956 had not come into force, whereas, in the case before the Full Bench the tenant had died after Section 40 was amended in 1956. In the case now before us, however, the death of the tenant took place before the Bombay Tenancy and Agricultural Lands Act was amended in 1956. We have already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritable right.Shri Karkhanis, learned Counsel for the respondents relied on the decision of this Court in Damadilal &Ors. v. Parashram &Ors. (1) and argued that a statutory tenancy was heritable like a contractual tenancy. This Court did not lay down the wide proposition that every statutory tenancy was heritable but the Court did quite definitely lay down that it would be wrong to import the notions of English law relating to "statutory tenancy" and on that basis to hold that it was not transferable or heritable. It was observed by A. C. Gupta, J., as follows:"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the e state he had in the premises in his occupation. It is not possible to claim that the "sanctity" of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy."7. The learned Judge thereafter referred to the definition of tenant in the Madhya Pradesh Act and held that the definition made a person continuing in possession after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against him, thus putting him at par with a person whose contractual tenancy still subsisted. It was observed that the incidents of such tenancy and the contractual tenancy had to be the same in the absence of a contrary intention conveyed by any pro vision of the Act. It was further observed that the so called statutory tenant had, under Section 14 of the Madhya Pradesh Act, the right to sublet in common with the contractual tenant and, therefore, he must be said to have an interest in the premises occupied by him.8. Thus the question whether a tenancy other than a contractual tenancy has any or all the incidents of a contractual tenancy has to be decided with reference to the provisions of the particular statute. Though Section 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956.
### Response:
1
### Explanation:
The position was clear und er the Bombay Tenancy Act, 1939. Explanation II to Section 7 of that Act expressly provided that for the purposes of the Section a tenant included his heirs, as specified in Section 9(3). The position under the Bombay Tenancy and Agricultural Land s Act, 1948, after it was amended in 1956 is also quite clear. Section 4B and Section 40 show that the tenancy under the Act is heritable. As already mentioned, while Section 4B provides for the continuation of the tenancy even after the expiry of the period fixed by the agreement or usage, Section 40 expressly provides for the continuation of the tenancy on the death of the tenant, the heirs of the tenant stepping into the position of the tenant. Once it is found that the tenancy is heritable it follows that the right given to the tenant under Section 37(1) may be exercised by the heirs of the tenanthave already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions ofthe Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritableSection 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956.
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Sheo Dayal Sinha and Others Vs. State of Bihar and Others | Service, there were two classes and several categories of officers according to the nature of their qualifications, experience and other attributes. Initially, the officers were taken in the two classes. By memo issued by the Government by its letter dated August, 13, 1953 which is to be found at page 856 of Compendium of Important Circulars and Orders of Agricultural Department (hereinafter to be referred as Compendium), it was clarified that in future officers should not be confirmed in the specified posts in the service in Class I or Class II of the Bihar Agricultural Service as the case may be. It was also pointed out that the posts under separate categories would be interchangeable, excepting those which existed in the botanical section which would not be interchangeable with the posts in the research or general administration groups.4. The main plank of the arguments of Mr. Divan in this case is that the State Government while promoting the respondents concerned, have not at all considered the cases of the appellants who were entitled to promotion on merit although in fact most of the appellants were senior to some of the respondents and, therefore, entitled to be considered for promotion. It is also the admitted case of he parties that while the service records of respondents 5-8 were sent to the Public Service Commission, those of the appellants were not sent at all by the Government to the Public Service Commission as a result of which the cases of the appellants could not be considered even by he Commission.5. In the counter-affidavit the stand taken by the State Government was that as the posts to which respondents 5-8 were promoted were of a special nature which required sufficient administrative experience, the question of the consideration of the cases of the appellants did not arise. It was, however, not alleged in the counter-affidavit that the appellants or any of them held purely botanical posts so as to be excluded from being considered to other posts.6. The High Court came to a clear finding that the posts to which the respondents concerned were promoted were not selection posts and it therefore follows as a logical corollary that inter se merit of the candidates eligible for appointment had to be considered by the Government. This, however, was not done and the defence taken by the State before us as mentioned above was that the promotional posts were of a special nature. Before the High Court, it appears, the stand taken was that the aforesaid posts were ex-cadre posts and the High Court seems to have proceeded on that basis. As discussed above, it is clear that the promotional posts were not ex-cadre posts, but were posts in the same class, i.e., Class I, and the appellants may not have been considered for promotion only if they had held posts in the Botanical section which alone was not interchangeable. This aspect of the matter has been completely overlooked by the High Court or perhaps was not even argued before it. Thus, the irresistible inference which arises from the materials placed before us it that the cases of the appellants had to be considered as they were eligible for promotion and since their cases were not considered, Articles 14 and 16 of the Constitution were clearly attracted. The High Court does not seem to have dwelt on this important aspect of the matter obviously because the proper materials were not placed before it and perhaps the counsel appearing for the Government was not very clear about the stand taken by him. Sometimes he proceeded on the basis that the promotional posts were selection posts and when he failed to establish this, he raised some other extraneous matters without drawing the attention of the High Court to the memorandum, referred to above, and Rule 12 with which we will deal hereafter.7. Furthermore, Mr. Goburdhun was unable to point out any order of the Government or document produced before us or before the High Court to show that the posts of the appellants were not interchangeable with the posts on which the respondents concerned were promoted. In these circumstances, therefore, it is manifest that the stand taken by the Government is contrary to its own rules and orders passed earlier. Rule 12 which was framed under the Government of India Act runs thus :12. Whenever the Governor decides that a vacancy shall be filled by promotion or transfer of an officer already in the service of Government a reference shall be made to the Commission to advise on such selection. The Commission shall be supplied with the records of the officer nominated for promotion by the Director of Agriculture together with the records of officers, if any, who are senior to the nominated officer.This rule also does not seem to have been complied with.8. Another violation which was committed by the Government in continuing the promotions of the respondents concerned was that Rule 12 extracted above makes it incumbent on the Governor to supply the Commission with the necessary records of the officer nominated for promotion together with the records of persons who are senior to the nominated officer, In this case it is not disputed that some of the appellants were undoubtedly senior to the respondents who were nominated for promotion. Mr. Goburdhun was unable to state the position which prevails today and we would, therefore, be justified in assuming that the promotes, namely, respondents concerned, continue up to this day as ad hoc appointees. Thus, apart from there being a clear violation of the rules and orders framed by the State Government as the cases of the appellants had to been considered for promotion which the Government was bound to consider, there has been a clear violation of Articles 14 and 16 of the Constitution of India.9. Unfortunately, the High Court seems to have accepted the averments in the counter-affidavit and has not noticed the glaring infirmities in the order impugned to which we have adverted. | 1[ds]6. The High Court came to a clear finding that the posts to which the respondents concerned were promoted were not selection posts and it therefore follows as a logical corollary that inter se merit of the candidates eligible for appointment had to be considered by the Government. This, however, was not done and the defence taken by the State before us as mentioned above was that the promotional posts were of a special nature. Before the High Court, it appears, the stand taken was that the aforesaid posts wereposts and the High Court seems to have proceeded on that basis. As discussed above, it is clear that the promotional posts were notposts, but were posts in the same class, i.e., Class I, and the appellants may not have been considered for promotion only if they had held posts in the Botanical section which alone was not interchangeable. This aspect of the matter has been completely overlooked by the High Court or perhaps was not even argued before it. Thus, the irresistible inference which arises from the materials placed before us it that the cases of the appellants had to be considered as they were eligible for promotion and since their cases were not considered, Articles 14 and 16 of the Constitution were clearly attracted. The High Court does not seem to have dwelt on this important aspect of the matter obviously because the proper materials were not placed before it and perhaps the counsel appearing for the Government was not very clear about the stand taken by him. Sometimes he proceeded on the basis that the promotional posts were selection posts and when he failed to establish this, he raised some other extraneous matters without drawing the attention of the High Court to the memorandum, referred to above, and Rule 12 with which we will deal hereafter.7. Furthermore, Mr. Goburdhun was unable to point out any order of the Government or document produced before us or before the High Court to show that the posts of the appellants were not interchangeable with the posts on which the respondents concerned were promoted. In these circumstances, therefore, it is manifest that the stand taken by the Government is contrary to its own rules and orders passed earlier. Rule 12 which was framed under the Government of India Act runs thus :12. Whenever the Governor decides that a vacancy shall be filled by promotion or transfer of an officer already in the service of Government a reference shall be made to the Commission to advise on such selection. The Commission shall be supplied with the records of the officer nominated for promotion by the Director of Agriculture together with the records of officers, if any, who are senior to the nominated officer.This rule also does not seem to have been complied with.8. Another violation which was committed by the Government in continuing the promotions of the respondents concerned was that Rule 12 extracted above makes it incumbent on the Governor to supply the Commission with the necessary records of the officer nominated for promotion together with the records of persons who are senior to the nominated officer, In this case it is not disputed that some of the appellants were undoubtedly senior to the respondents who were nominated for promotion. Mr. Goburdhun was unable to state the position which prevails today and we would, therefore, be justified in assuming that the promotes, namely, respondents concerned, continue up to this day as ad hoc appointees. Thus, apart from there being a clear violation of the rules and orders framed by the State Government as the cases of the appellants had to been considered for promotion which the Government was bound to consider, there has been a clear violation of Articles 14 and 16 of the Constitution of India.9. Unfortunately, the High Court seems to have accepted the averments in theand has not noticed the glaring infirmities in the order impugned to which we have adverted. | 1 | 1,253 | 712 | ### Instruction:
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Service, there were two classes and several categories of officers according to the nature of their qualifications, experience and other attributes. Initially, the officers were taken in the two classes. By memo issued by the Government by its letter dated August, 13, 1953 which is to be found at page 856 of Compendium of Important Circulars and Orders of Agricultural Department (hereinafter to be referred as Compendium), it was clarified that in future officers should not be confirmed in the specified posts in the service in Class I or Class II of the Bihar Agricultural Service as the case may be. It was also pointed out that the posts under separate categories would be interchangeable, excepting those which existed in the botanical section which would not be interchangeable with the posts in the research or general administration groups.4. The main plank of the arguments of Mr. Divan in this case is that the State Government while promoting the respondents concerned, have not at all considered the cases of the appellants who were entitled to promotion on merit although in fact most of the appellants were senior to some of the respondents and, therefore, entitled to be considered for promotion. It is also the admitted case of he parties that while the service records of respondents 5-8 were sent to the Public Service Commission, those of the appellants were not sent at all by the Government to the Public Service Commission as a result of which the cases of the appellants could not be considered even by he Commission.5. In the counter-affidavit the stand taken by the State Government was that as the posts to which respondents 5-8 were promoted were of a special nature which required sufficient administrative experience, the question of the consideration of the cases of the appellants did not arise. It was, however, not alleged in the counter-affidavit that the appellants or any of them held purely botanical posts so as to be excluded from being considered to other posts.6. The High Court came to a clear finding that the posts to which the respondents concerned were promoted were not selection posts and it therefore follows as a logical corollary that inter se merit of the candidates eligible for appointment had to be considered by the Government. This, however, was not done and the defence taken by the State before us as mentioned above was that the promotional posts were of a special nature. Before the High Court, it appears, the stand taken was that the aforesaid posts were ex-cadre posts and the High Court seems to have proceeded on that basis. As discussed above, it is clear that the promotional posts were not ex-cadre posts, but were posts in the same class, i.e., Class I, and the appellants may not have been considered for promotion only if they had held posts in the Botanical section which alone was not interchangeable. This aspect of the matter has been completely overlooked by the High Court or perhaps was not even argued before it. Thus, the irresistible inference which arises from the materials placed before us it that the cases of the appellants had to be considered as they were eligible for promotion and since their cases were not considered, Articles 14 and 16 of the Constitution were clearly attracted. The High Court does not seem to have dwelt on this important aspect of the matter obviously because the proper materials were not placed before it and perhaps the counsel appearing for the Government was not very clear about the stand taken by him. Sometimes he proceeded on the basis that the promotional posts were selection posts and when he failed to establish this, he raised some other extraneous matters without drawing the attention of the High Court to the memorandum, referred to above, and Rule 12 with which we will deal hereafter.7. Furthermore, Mr. Goburdhun was unable to point out any order of the Government or document produced before us or before the High Court to show that the posts of the appellants were not interchangeable with the posts on which the respondents concerned were promoted. In these circumstances, therefore, it is manifest that the stand taken by the Government is contrary to its own rules and orders passed earlier. Rule 12 which was framed under the Government of India Act runs thus :12. Whenever the Governor decides that a vacancy shall be filled by promotion or transfer of an officer already in the service of Government a reference shall be made to the Commission to advise on such selection. The Commission shall be supplied with the records of the officer nominated for promotion by the Director of Agriculture together with the records of officers, if any, who are senior to the nominated officer.This rule also does not seem to have been complied with.8. Another violation which was committed by the Government in continuing the promotions of the respondents concerned was that Rule 12 extracted above makes it incumbent on the Governor to supply the Commission with the necessary records of the officer nominated for promotion together with the records of persons who are senior to the nominated officer, In this case it is not disputed that some of the appellants were undoubtedly senior to the respondents who were nominated for promotion. Mr. Goburdhun was unable to state the position which prevails today and we would, therefore, be justified in assuming that the promotes, namely, respondents concerned, continue up to this day as ad hoc appointees. Thus, apart from there being a clear violation of the rules and orders framed by the State Government as the cases of the appellants had to been considered for promotion which the Government was bound to consider, there has been a clear violation of Articles 14 and 16 of the Constitution of India.9. Unfortunately, the High Court seems to have accepted the averments in the counter-affidavit and has not noticed the glaring infirmities in the order impugned to which we have adverted.
### Response:
1
### Explanation:
6. The High Court came to a clear finding that the posts to which the respondents concerned were promoted were not selection posts and it therefore follows as a logical corollary that inter se merit of the candidates eligible for appointment had to be considered by the Government. This, however, was not done and the defence taken by the State before us as mentioned above was that the promotional posts were of a special nature. Before the High Court, it appears, the stand taken was that the aforesaid posts wereposts and the High Court seems to have proceeded on that basis. As discussed above, it is clear that the promotional posts were notposts, but were posts in the same class, i.e., Class I, and the appellants may not have been considered for promotion only if they had held posts in the Botanical section which alone was not interchangeable. This aspect of the matter has been completely overlooked by the High Court or perhaps was not even argued before it. Thus, the irresistible inference which arises from the materials placed before us it that the cases of the appellants had to be considered as they were eligible for promotion and since their cases were not considered, Articles 14 and 16 of the Constitution were clearly attracted. The High Court does not seem to have dwelt on this important aspect of the matter obviously because the proper materials were not placed before it and perhaps the counsel appearing for the Government was not very clear about the stand taken by him. Sometimes he proceeded on the basis that the promotional posts were selection posts and when he failed to establish this, he raised some other extraneous matters without drawing the attention of the High Court to the memorandum, referred to above, and Rule 12 with which we will deal hereafter.7. Furthermore, Mr. Goburdhun was unable to point out any order of the Government or document produced before us or before the High Court to show that the posts of the appellants were not interchangeable with the posts on which the respondents concerned were promoted. In these circumstances, therefore, it is manifest that the stand taken by the Government is contrary to its own rules and orders passed earlier. Rule 12 which was framed under the Government of India Act runs thus :12. Whenever the Governor decides that a vacancy shall be filled by promotion or transfer of an officer already in the service of Government a reference shall be made to the Commission to advise on such selection. The Commission shall be supplied with the records of the officer nominated for promotion by the Director of Agriculture together with the records of officers, if any, who are senior to the nominated officer.This rule also does not seem to have been complied with.8. Another violation which was committed by the Government in continuing the promotions of the respondents concerned was that Rule 12 extracted above makes it incumbent on the Governor to supply the Commission with the necessary records of the officer nominated for promotion together with the records of persons who are senior to the nominated officer, In this case it is not disputed that some of the appellants were undoubtedly senior to the respondents who were nominated for promotion. Mr. Goburdhun was unable to state the position which prevails today and we would, therefore, be justified in assuming that the promotes, namely, respondents concerned, continue up to this day as ad hoc appointees. Thus, apart from there being a clear violation of the rules and orders framed by the State Government as the cases of the appellants had to been considered for promotion which the Government was bound to consider, there has been a clear violation of Articles 14 and 16 of the Constitution of India.9. Unfortunately, the High Court seems to have accepted the averments in theand has not noticed the glaring infirmities in the order impugned to which we have adverted.
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Raghbir Singh Sehrawat Vs. State Of Haryana | supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument.” 24. The same view has been reiterated in Union of India v. Mukesh Hans (2004) 8 SCC 14 , Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 , Anand Singh v. State of U.P. (supra) and Radhy Shyam v. State of U. P. (supra). 25. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme. Though, it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. 26. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having ones own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. 27. In the result, | 1[ds]Since the appellant has been non suited by the High Court only on the ground that possession of the acquired land had been taken by the concerned officers and the same will be deemed to have vested in the State Government free from all encumbrances, we think that it will be appropriate to first consider this facet of his challenge to the impugned orders. In the writ petition filed by him, the appellant categorically averred that physical possession of the acquired land was with him and he has been cultivating the same. This assertion finds support from the entries contained in Girdawari/Record of cultivation, Book No.1, village Jatheri, Tehsil and District Sonepat (years 2001 to 2010). A reading of these entries shows that during those years crops of wheat, paddy and chari were grown by the appellant and at the relevant time, i.e. the date on which possession of the acquired land is said to have been taken and delivered to HSIIDC, paddy crop was standing on 5 Kanals 2 Marlas of land. The respondents have not questioned the genuineness and correctness of the entries contained in the Girdawaris. Therefore, there is no reason to disbelieve or discard the same. That apart, it is neither the pleaded case of the respondents nor any evidence has been produced before this Court to show that the appellant had unauthorisedly taken possession of the acquired land after 28.11.2008. It is also not the pleaded case of the respondents that the appellant had been given notice that possession of the acquired land would be taken on 28.11.2008 and he should remain present at the site. Therefore, Rojnamcha Vakyati prepared by Sadar Kanungo and three Patwaris showing delivery of possession to Shri Yogesh Mohan Mehra, Senior Manager (IA), HSIIDC, Rai, which is a self serving document, cannot be made basis for recording a finding that possession of the acquired land had been taken by the concerned revenue authorities. The respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the respondents that any independent witness was present at the time of taking possession of the acquired land. The Land Acquisition Collector and his subordinates may claim credit of having acted swiftly inasmuch as immediately after pronouncement of the award, possession of the acquired land of village Jatheri is said to have taken from the landowners and handed over to the officer of HSIIDC but keeping in view the fact that crop was standing on the land, the exercise undertaken by the respondents showing delivery of possession cannot but be treated as farce and inconsequential. We have no doubt that if the High Court had summoned the relevant records and scrutinized the same, it would not have summarily dismissed the writ petition on the premise that possession of the acquired land had been taken and the same vested in the Stateview of the above discussion, we hold that the record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Sectionis evident from the fact that other objectors had acknowledged the receipt of notices by putting their signatures, the notices allegedly served upon the appellant and his wife do not bear their signatures and no explanation has been offered by the respondents about this omission. The Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors. Not only this, someone in the office of Land Acquisition Collector forged the appellants signature to show his presence in P.W.D. Rest House, Rai on 29.11.2006. A bare comparison of the signatures appearing against the appellants name at serial No.90 (page 184 of the paper book) and those appearing on the vakalatnama and affidavit filed in support of the special leave petitions shows that there is no similarity in the two signatures. Not only this, in the list, appended with Annexure R-3, the appellants wife has been shown as widow of Raghbir Singh. It is impossible to believe that a woman who knows how to sign a document would put signatures against her name showing her as a widow despite the fact that her husband is alive. When the Court pointed out to the learned counsel for the respondents that the signatures appearing against serial No. 90 at page 8 of Annexure R-3 (page 184 of the paper book) do not tally with the signatures of the appellant on the vakalatnama and the affidavit filed in support of special leave petitions, the learned counsel expressed his inability to offer any explanation. He also expressed helplessness in defending the description of the appellants wife Smt. Moorti Devi as widow of Raghbirdeem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having ones own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. | 1 | 6,707 | 1,503 | ### 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:
supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument.” 24. The same view has been reiterated in Union of India v. Mukesh Hans (2004) 8 SCC 14 , Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 , Anand Singh v. State of U.P. (supra) and Radhy Shyam v. State of U. P. (supra). 25. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme. Though, it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons. 26. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having ones own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice. 27. In the result,
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of taking possession of the acquired land. The Land Acquisition Collector and his subordinates may claim credit of having acted swiftly inasmuch as immediately after pronouncement of the award, possession of the acquired land of village Jatheri is said to have taken from the landowners and handed over to the officer of HSIIDC but keeping in view the fact that crop was standing on the land, the exercise undertaken by the respondents showing delivery of possession cannot but be treated as farce and inconsequential. We have no doubt that if the High Court had summoned the relevant records and scrutinized the same, it would not have summarily dismissed the writ petition on the premise that possession of the acquired land had been taken and the same vested in the Stateview of the above discussion, we hold that the record prepared by the revenue authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Sectionis evident from the fact that other objectors had acknowledged the receipt of notices by putting their signatures, the notices allegedly served upon the appellant and his wife do not bear their signatures and no explanation has been offered by the respondents about this omission. The Land Acquisition Collector proceeded to decide the objections by assuming that the notice has been delivered to all the objectors. Not only this, someone in the office of Land Acquisition Collector forged the appellants signature to show his presence in P.W.D. Rest House, Rai on 29.11.2006. A bare comparison of the signatures appearing against the appellants name at serial No.90 (page 184 of the paper book) and those appearing on the vakalatnama and affidavit filed in support of the special leave petitions shows that there is no similarity in the two signatures. Not only this, in the list, appended with Annexure R-3, the appellants wife has been shown as widow of Raghbir Singh. It is impossible to believe that a woman who knows how to sign a document would put signatures against her name showing her as a widow despite the fact that her husband is alive. When the Court pointed out to the learned counsel for the respondents that the signatures appearing against serial No. 90 at page 8 of Annexure R-3 (page 184 of the paper book) do not tally with the signatures of the appellant on the vakalatnama and the affidavit filed in support of special leave petitions, the learned counsel expressed his inability to offer any explanation. He also expressed helplessness in defending the description of the appellants wife Smt. Moorti Devi as widow of Raghbirdeem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having ones own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice.
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Sadhu Singh Harnam Singh Vs. State of Punjab | him from leaving his place by terrifying him to some extent. It is not possible to believe the embellished version of the witnesses that Sadhu Singh was present at the altercation between his father and the Mahant or that he loaded the gun after he himself had intervened in the altercation, or that there was the conversation alleged by the witness between him and the Mahant. It also appears that the story that the accused took aim before firing at the Mahant or that he said that he had never allowed in the past anybody to go like that from his house is a subsequent introduction in the case to add gravity to the offence committed by the accused.11. In -Pritam Singh v. The State, , this Court held that it will not grant special leave to appeal under Article 136(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence for a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice. While dealing with this question the High Court made the following significant observations:"So far as the F.I.R. is concerned, all that can be said is that it was not stated therein in so many words that the deceased was fired at by the appellant and further that the firing was accidental. As regards the first point, it is no doubt true that the F. I. R. does not contain clear words that Amar Singh saw the appellant firing at the deceased, but reading the document as a whole there can be no doubt that it was as a result of the shot fired by the appellant that the deceased was hit and ultimately died. . . . . . . . Then as I have already observed, S. Dara Singh, counsel for the appellant, has not been able to convince us that there is a single difference which goes to the root of the case. The following are the main features of the story:(i) That the deceased went to the chubara of the appellant accompanied by Chand Singh and Amar Singh.(ii) That the appellant was then present at the chubara and was having a drink party which consisted of himself, Nand Singh and his father Harnam Singh.(iii) That for some time everything went off quite smoothly until the deceased took a bit of opium out of the dabia offered to him by Harnam Singh at the instance of the appellant. The remark made by Harnam Singh was resented by the deceased and he at once got ready to leave the place.(iv) That the appellant expressed his annoyance at the conduct of the deceased in leaving his house so abruptly and his efforts to persuade the deceased to stay on were not successful; and(v) That the appellant went out of the chubara with his gun and cartridges and when he thought that the deceased had made up his mind to go away he fired a shot at him.On all these points the testimony of the eye-witnesses is consistent and unanimous. The only difference between their statements is that they are not all agreed as to the exact stage at which the appellant went out of the chubara and the precise words that he and the deceased exchanged. In my opinion, the differences are not only not material but they can be easily explained."12. It seems to us that the High Court was in error in thinking that there was not a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been completely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does not go to the root of the case it is difficult to conceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302, I. P. C. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case. | 1[ds]It is apparent that from the stage of the first information report to the final stage of the trial the witness has been giving different accounts of the actual happening. At the earlier stage it was not said that Sadhu Singh was present at the talk between his father and the Mahant which created some resentment between them, or that Sadhu Singh aimed the gun at the Mahant after loading it in the presence of the witness, or that he told him that he would not let him go as in the past he had not allowed anybody to leave his house in this fashion. There is a clear attempt on the part of the witness to make it appear that the firing which was either accidental or an act of bravado on the part of the accused in order to stop the Mahant from leaving his house, was an act of intentional killing.On a careful reading of the evidence of theand the different statements that have been made by them it is quite clear that the incident happened in a very short time and suddenly. There was no previous enmity between the deceased and the accused. On the other hand, the accused was very respectful to the Mahant and wasto show all hospitality to him. It seems that he was anxious that the Mahant should not go away from his house without taking meals and spending the night with him, and seeing that the Mahant was going away, in all probability he let go his gun without aiming it at the Mahant in order to prevent him from leaving his place by terrifying him to some extent. It is not possible to believe the embellished version of the witnesses that Sadhu Singh was present at the altercation between his father and the Mahant or that he loaded the gun after he himself had intervened in the altercation, or that there was the conversation alleged by the witness between him and the Mahant. It also appears that the story that the accused took aim before firing at the Mahant or that he said that he had never allowed in the past anybody to go like that from his house is a subsequent introduction in the case to add gravity to the offence committed by the accused.11. InPritam Singh v. The State, , this Court held that it will not grant special leave to appeal under Article 136(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence for a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice.It seems to us that the High Court was in error in thinking that there was not a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been completely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does not go to the root of the case it is difficult to conceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302, I. P. C. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case. | 1 | 5,965 | 915 | ### 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:
him from leaving his place by terrifying him to some extent. It is not possible to believe the embellished version of the witnesses that Sadhu Singh was present at the altercation between his father and the Mahant or that he loaded the gun after he himself had intervened in the altercation, or that there was the conversation alleged by the witness between him and the Mahant. It also appears that the story that the accused took aim before firing at the Mahant or that he said that he had never allowed in the past anybody to go like that from his house is a subsequent introduction in the case to add gravity to the offence committed by the accused.11. In -Pritam Singh v. The State, , this Court held that it will not grant special leave to appeal under Article 136(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence for a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice. While dealing with this question the High Court made the following significant observations:"So far as the F.I.R. is concerned, all that can be said is that it was not stated therein in so many words that the deceased was fired at by the appellant and further that the firing was accidental. As regards the first point, it is no doubt true that the F. I. R. does not contain clear words that Amar Singh saw the appellant firing at the deceased, but reading the document as a whole there can be no doubt that it was as a result of the shot fired by the appellant that the deceased was hit and ultimately died. . . . . . . . Then as I have already observed, S. Dara Singh, counsel for the appellant, has not been able to convince us that there is a single difference which goes to the root of the case. The following are the main features of the story:(i) That the deceased went to the chubara of the appellant accompanied by Chand Singh and Amar Singh.(ii) That the appellant was then present at the chubara and was having a drink party which consisted of himself, Nand Singh and his father Harnam Singh.(iii) That for some time everything went off quite smoothly until the deceased took a bit of opium out of the dabia offered to him by Harnam Singh at the instance of the appellant. The remark made by Harnam Singh was resented by the deceased and he at once got ready to leave the place.(iv) That the appellant expressed his annoyance at the conduct of the deceased in leaving his house so abruptly and his efforts to persuade the deceased to stay on were not successful; and(v) That the appellant went out of the chubara with his gun and cartridges and when he thought that the deceased had made up his mind to go away he fired a shot at him.On all these points the testimony of the eye-witnesses is consistent and unanimous. The only difference between their statements is that they are not all agreed as to the exact stage at which the appellant went out of the chubara and the precise words that he and the deceased exchanged. In my opinion, the differences are not only not material but they can be easily explained."12. It seems to us that the High Court was in error in thinking that there was not a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been completely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does not go to the root of the case it is difficult to conceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302, I. P. C. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case.
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1
### Explanation:
It is apparent that from the stage of the first information report to the final stage of the trial the witness has been giving different accounts of the actual happening. At the earlier stage it was not said that Sadhu Singh was present at the talk between his father and the Mahant which created some resentment between them, or that Sadhu Singh aimed the gun at the Mahant after loading it in the presence of the witness, or that he told him that he would not let him go as in the past he had not allowed anybody to leave his house in this fashion. There is a clear attempt on the part of the witness to make it appear that the firing which was either accidental or an act of bravado on the part of the accused in order to stop the Mahant from leaving his house, was an act of intentional killing.On a careful reading of the evidence of theand the different statements that have been made by them it is quite clear that the incident happened in a very short time and suddenly. There was no previous enmity between the deceased and the accused. On the other hand, the accused was very respectful to the Mahant and wasto show all hospitality to him. It seems that he was anxious that the Mahant should not go away from his house without taking meals and spending the night with him, and seeing that the Mahant was going away, in all probability he let go his gun without aiming it at the Mahant in order to prevent him from leaving his place by terrifying him to some extent. It is not possible to believe the embellished version of the witnesses that Sadhu Singh was present at the altercation between his father and the Mahant or that he loaded the gun after he himself had intervened in the altercation, or that there was the conversation alleged by the witness between him and the Mahant. It also appears that the story that the accused took aim before firing at the Mahant or that he said that he had never allowed in the past anybody to go like that from his house is a subsequent introduction in the case to add gravity to the offence committed by the accused.11. InPritam Singh v. The State, , this Court held that it will not grant special leave to appeal under Article 136(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence for a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice.It seems to us that the High Court was in error in thinking that there was not a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been completely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does not go to the root of the case it is difficult to conceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302, I. P. C. On the materials placed on the record it could not be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. No intention of causing death or an intention of causing such bodily injury as being sufficient in the ordinary course of nature to cause death could be ascribed to the accused or readily inferred in the circumstances of this case.
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Shailja & Another Vs. Khobbanna | 1. Leave granted.2. The matters have been called out twice but there is no appearance on behalf of the respondent.3. We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court.4. The Family Court had directed payment of maintenance for an amount of Rs. 15,000/- per month to the appellant - wife and Rs. 10,000/- per month to the son.5. The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent - husband that the appellant - wife was working. All that was held was that the appellant - wife was capable of earning and therefore maintenance was reduced to an amount of Rs. 6000/- from Rs. 15,000/- for her and Rs. 6000/- from Rs. 10,000/- for the son.6. In other words, out of an amount of Rs. 25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, the High Court has reduced the amount to Rs. 12,000/- (total).7. We are not satisfied with the order passed by the High Court considering the income of the respondent - husband, which we have been told, is more than Rs. 80,000/- per month since the respondent - husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent - husband is also the owner of 26 acres of irrigated land.8. That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court. | 1[ds]7. We are not satisfied with the order passed by the High Court considering the income of the respondenthusband, which we have been told, is more than Rs. 80,000/per month since the respondenthusband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondenthusband is also the owner of 26 acres of irrigated land.8. That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court. | 1 | 363 | 160 | ### 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. Leave granted.2. The matters have been called out twice but there is no appearance on behalf of the respondent.3. We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court.4. The Family Court had directed payment of maintenance for an amount of Rs. 15,000/- per month to the appellant - wife and Rs. 10,000/- per month to the son.5. The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent - husband that the appellant - wife was working. All that was held was that the appellant - wife was capable of earning and therefore maintenance was reduced to an amount of Rs. 6000/- from Rs. 15,000/- for her and Rs. 6000/- from Rs. 10,000/- for the son.6. In other words, out of an amount of Rs. 25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, the High Court has reduced the amount to Rs. 12,000/- (total).7. We are not satisfied with the order passed by the High Court considering the income of the respondent - husband, which we have been told, is more than Rs. 80,000/- per month since the respondent - husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent - husband is also the owner of 26 acres of irrigated land.8. That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
### Response:
1
### Explanation:
7. We are not satisfied with the order passed by the High Court considering the income of the respondenthusband, which we have been told, is more than Rs. 80,000/per month since the respondenthusband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondenthusband is also the owner of 26 acres of irrigated land.8. That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
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Cipla Limited Vs. Cipla Employees' Union | ( 1 ) THE Original Petitioners (the Respondents) before us have filed the present Civil Application praying to speak to Minutes of Order dated July 19, 1999 passed by us. Hereinafter the parties would be referred to as "the Union" and "the Company" (the original petitioners and the respondents respectively). ( 2 ) WE have again heard both the learned Counsel for some time. In spite of our detailed order it appears that the Company has not accepted the letter and spirit of our order and has deliberately tried to misunderstand it. Our attention is drawn to a letter dated July 28, 1999 addressed by the Company to one of the Machine Operators (Original Petitioner No. 2). By the said letter, though he was admittedly a Machine Operator, he was allotted the work of cleaning of acid shed racks, boxes and carbouys and its area and Acid Shed. In the said letter it is alleged that he refused to do that work and remained idle for the entire day. It appears that even thereafter the Company kept on insisting upon him to do that work only and it displayed warning orders on the notice board. It is clear from the record that Shri Pingle was a Machine Operator and his main duty and work is that of a Machine Operator. We have in our order made it abundantly clear that a Machine Operator should clean the "cubic area" of the machines, that is, the surrounding place of the machine where the Machine Operator works. To clean the surrounding area of the machine is not his principal or main duty but it is only an incidental or ancillary work and, therefore, according to us it was also the work required to be done by the Machine Operator himself. Even the learned Counsel Shri Cooper for the Company had unequivocally and categorically made a statement which we have recorded in our order that a Machine Operator will be required to do the aforesaid incidental work of cleaning the cubic area that is the surrounding place of the machine only and nothing else. We have no manner of doubt that the management of the Company must have read the order and must also have understood the same. It appears that some of the Officers are trying to make the issue of work as a hollow prestige issue and they appear to suffer from an ego problem and they appear to be bent upon to break the spirit and back of the employees at any cost. Had it not been so we would not have been called upon to waste our time once again on the very same issue It is very unfortunate that the Company should have transferred a Machine Operator to some other department or place and to have called upon him to do the work of "cleaning of acid shed racks, boxes and carbouys and its area in Acid Shed" which was definitely not his duty or his work as a Machine Operator. This clearly reflects a vindictive and victimising attitude on the part of the Companys Officers. There is no dispute of any nature that the Machine Operators are ready and willing to do the cleaning work of cubic area during the pendency of the complaint. It appears that the Company has not been able to imbibe the spirit of mutual co-operation as reflected in our Order. We do not find anything which is vague or which requires any clarification. The Union appears to have been constrained to approach us once again particularly because the Company has transferred or shunted off some of the active employees enmasse requiring them to do only the cleaning work without assigning them the principal or main duty of their respective posts or designations. It appears that the Officers of the Company have mala fide shifted the employees from their usual main work to some other places requiring them to do only the work of cleaning and sweeping. This was not the order which we had passed. ( 3 ) WHILE recording the statement of Shri Cooper, the learned Counsel appearing for the Company we had asked him for more than once, may be, half a dozen times that a Machine Operator would not be required to clean and sweep the area or floor except the surrounding area of his machine and Shri Cooper had repeatedly told us that was correct. When he made this statement he did so after obtaining instructions from the officers who were personally present in the Court it appears that someone from amongst them is trying to play mischief to continue to brew the problem in the Company. The Company is trying to misread and misconstrue the order by shifting the usual Machine Operators and other workers from their usual and main duty requiring them to do the only incidental part of work of cleaning and sweeping. ( 4 ) WE, therefore, make the Civil Application absolute in terms of prayer Clause (a) which reads as under: (a) That this Honourable Court be pleased to speak to the minutes of order dated July 19, 1999 to clarify as under:"Only those who are categorised as Machine Operators and who are actually given the work of operating the machines should be called upon to clean only the cubic area surrounding the machine and nothing else". ( 5 ) SINCE the Industrial Court is seized of the matter and has adjourned the Complaint to September 17, 1999. We feel that such Industrial unrest cannot be allowed to continue for a long period. | 1[ds]( 2 ) WE have again heard both the learned Counsel for some time. In spite of our detailed order it appears that the Company has not accepted the letter and spirit of our order and has deliberately tried to misunderstand it. Our attention is drawn to a letter dated July 28, 1999 addressed by the Company to one of the Machine Operators (Original Petitioner No. 2). By the said letter, though he was admittedly a Machine Operator, he was allotted the work of cleaning of acid shed racks, boxes and carbouys and its area and Acid Shed. In the said letter it is alleged that he refused to do that work and remained idle for the entire day. It appears that even thereafter the Company kept on insisting upon him to do that work only and it displayed warning orders on the notice board. It is clear from the record that Shri Pingle was a Machine Operator and his main duty and work is that of a Machine Operator. We have in our order made it abundantly clear that a Machine Operator should clean the "cubic area" of the machines, that is, the surrounding place of the machine where the Machine Operator works. To clean the surrounding area of the machine is not his principal or main duty but it is only an incidental or ancillary work and, therefore, according to us it was also the work required to be done by the Machine Operator himself. Even the learned Counsel Shri Cooper for the Company had unequivocally and categorically made a statement which we have recorded in our order that a Machine Operator will be required to do the aforesaid incidental work of cleaning the cubic area that is the surrounding place of the machine only and nothing else. We have no manner of doubt that the management of the Company must have read the order and must also have understood the same. It appears that some of the Officers are trying to make the issue of work as a hollow prestige issue and they appear to suffer from an ego problem and they appear to be bent upon to break the spirit and back of the employees at any cost. Had it not been so we would not have been called upon to waste our time once again on the very same issue It is very unfortunate that the Company should have transferred a Machine Operator to some other department or place and to have called upon him to do the work of "cleaning of acid shed racks, boxes and carbouys and its area in Acid Shed" which was definitely not his duty or his work as a Machine Operator. This clearly reflects a vindictive and victimising attitude on the part of the Companys Officers. There is no dispute of any nature that the Machine Operators are ready and willing to do the cleaning work of cubic area during the pendency of the complaint. It appears that the Company has not been able to imbibe the spirit of mutualas reflected in our Order. We do not find anything which is vague or which requires any clarification. The Union appears to have been constrained to approach us once again particularly because the Company has transferred or shunted off some of the active employees enmasse requiring them to do only the cleaning work without assigning them the principal or main duty of their respective posts or designations. It appears that the Officers of the Company have mala fide shifted the employees from their usual main work to some other places requiring them to do only the work of cleaning and sweeping. This was not the order which we had3 ) WHILE recording the statement of Shri Cooper, the learned Counsel appearing for the Company we had asked him for more than once, may be, half a dozen times that a Machine Operator would not be required to clean and sweep the area or floor except the surrounding area of his machine and Shri Cooper had repeatedly told us that was correct. When he made this statement he did so after obtaining instructions from the officers who were personally present in the Court it appears that someone from amongst them is trying to play mischief to continue to brew the problem in the Company. The Company is trying to misread and misconstrue the order by shifting the usual Machine Operators and other workers from their usual and main duty requiring them to do the only incidental part of work of cleaning and4 ) WE, therefore, make the Civil Application absolute in terms of prayer Clause (a) which reads as under: (a) That this Honourable Court be pleased to speak to the minutes of order dated July 19, 1999 to clarify as under:"Only those who are categorised as Machine Operators and who are actually given the work of operating the machines should be called upon to clean only the cubic area surrounding the machine and nothing5 ) SINCE the Industrial Court is seized of the matter and has adjourned the Complaint to September 17, 1999. We feel that such Industrial unrest cannot be allowed to continue for a long period. | 1 | 999 | 927 | ### 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:
( 1 ) THE Original Petitioners (the Respondents) before us have filed the present Civil Application praying to speak to Minutes of Order dated July 19, 1999 passed by us. Hereinafter the parties would be referred to as "the Union" and "the Company" (the original petitioners and the respondents respectively). ( 2 ) WE have again heard both the learned Counsel for some time. In spite of our detailed order it appears that the Company has not accepted the letter and spirit of our order and has deliberately tried to misunderstand it. Our attention is drawn to a letter dated July 28, 1999 addressed by the Company to one of the Machine Operators (Original Petitioner No. 2). By the said letter, though he was admittedly a Machine Operator, he was allotted the work of cleaning of acid shed racks, boxes and carbouys and its area and Acid Shed. In the said letter it is alleged that he refused to do that work and remained idle for the entire day. It appears that even thereafter the Company kept on insisting upon him to do that work only and it displayed warning orders on the notice board. It is clear from the record that Shri Pingle was a Machine Operator and his main duty and work is that of a Machine Operator. We have in our order made it abundantly clear that a Machine Operator should clean the "cubic area" of the machines, that is, the surrounding place of the machine where the Machine Operator works. To clean the surrounding area of the machine is not his principal or main duty but it is only an incidental or ancillary work and, therefore, according to us it was also the work required to be done by the Machine Operator himself. Even the learned Counsel Shri Cooper for the Company had unequivocally and categorically made a statement which we have recorded in our order that a Machine Operator will be required to do the aforesaid incidental work of cleaning the cubic area that is the surrounding place of the machine only and nothing else. We have no manner of doubt that the management of the Company must have read the order and must also have understood the same. It appears that some of the Officers are trying to make the issue of work as a hollow prestige issue and they appear to suffer from an ego problem and they appear to be bent upon to break the spirit and back of the employees at any cost. Had it not been so we would not have been called upon to waste our time once again on the very same issue It is very unfortunate that the Company should have transferred a Machine Operator to some other department or place and to have called upon him to do the work of "cleaning of acid shed racks, boxes and carbouys and its area in Acid Shed" which was definitely not his duty or his work as a Machine Operator. This clearly reflects a vindictive and victimising attitude on the part of the Companys Officers. There is no dispute of any nature that the Machine Operators are ready and willing to do the cleaning work of cubic area during the pendency of the complaint. It appears that the Company has not been able to imbibe the spirit of mutual co-operation as reflected in our Order. We do not find anything which is vague or which requires any clarification. The Union appears to have been constrained to approach us once again particularly because the Company has transferred or shunted off some of the active employees enmasse requiring them to do only the cleaning work without assigning them the principal or main duty of their respective posts or designations. It appears that the Officers of the Company have mala fide shifted the employees from their usual main work to some other places requiring them to do only the work of cleaning and sweeping. This was not the order which we had passed. ( 3 ) WHILE recording the statement of Shri Cooper, the learned Counsel appearing for the Company we had asked him for more than once, may be, half a dozen times that a Machine Operator would not be required to clean and sweep the area or floor except the surrounding area of his machine and Shri Cooper had repeatedly told us that was correct. When he made this statement he did so after obtaining instructions from the officers who were personally present in the Court it appears that someone from amongst them is trying to play mischief to continue to brew the problem in the Company. The Company is trying to misread and misconstrue the order by shifting the usual Machine Operators and other workers from their usual and main duty requiring them to do the only incidental part of work of cleaning and sweeping. ( 4 ) WE, therefore, make the Civil Application absolute in terms of prayer Clause (a) which reads as under: (a) That this Honourable Court be pleased to speak to the minutes of order dated July 19, 1999 to clarify as under:"Only those who are categorised as Machine Operators and who are actually given the work of operating the machines should be called upon to clean only the cubic area surrounding the machine and nothing else". ( 5 ) SINCE the Industrial Court is seized of the matter and has adjourned the Complaint to September 17, 1999. We feel that such Industrial unrest cannot be allowed to continue for a long period.
### Response:
1
### Explanation:
( 2 ) WE have again heard both the learned Counsel for some time. In spite of our detailed order it appears that the Company has not accepted the letter and spirit of our order and has deliberately tried to misunderstand it. Our attention is drawn to a letter dated July 28, 1999 addressed by the Company to one of the Machine Operators (Original Petitioner No. 2). By the said letter, though he was admittedly a Machine Operator, he was allotted the work of cleaning of acid shed racks, boxes and carbouys and its area and Acid Shed. In the said letter it is alleged that he refused to do that work and remained idle for the entire day. It appears that even thereafter the Company kept on insisting upon him to do that work only and it displayed warning orders on the notice board. It is clear from the record that Shri Pingle was a Machine Operator and his main duty and work is that of a Machine Operator. We have in our order made it abundantly clear that a Machine Operator should clean the "cubic area" of the machines, that is, the surrounding place of the machine where the Machine Operator works. To clean the surrounding area of the machine is not his principal or main duty but it is only an incidental or ancillary work and, therefore, according to us it was also the work required to be done by the Machine Operator himself. Even the learned Counsel Shri Cooper for the Company had unequivocally and categorically made a statement which we have recorded in our order that a Machine Operator will be required to do the aforesaid incidental work of cleaning the cubic area that is the surrounding place of the machine only and nothing else. We have no manner of doubt that the management of the Company must have read the order and must also have understood the same. It appears that some of the Officers are trying to make the issue of work as a hollow prestige issue and they appear to suffer from an ego problem and they appear to be bent upon to break the spirit and back of the employees at any cost. Had it not been so we would not have been called upon to waste our time once again on the very same issue It is very unfortunate that the Company should have transferred a Machine Operator to some other department or place and to have called upon him to do the work of "cleaning of acid shed racks, boxes and carbouys and its area in Acid Shed" which was definitely not his duty or his work as a Machine Operator. This clearly reflects a vindictive and victimising attitude on the part of the Companys Officers. There is no dispute of any nature that the Machine Operators are ready and willing to do the cleaning work of cubic area during the pendency of the complaint. It appears that the Company has not been able to imbibe the spirit of mutualas reflected in our Order. We do not find anything which is vague or which requires any clarification. The Union appears to have been constrained to approach us once again particularly because the Company has transferred or shunted off some of the active employees enmasse requiring them to do only the cleaning work without assigning them the principal or main duty of their respective posts or designations. It appears that the Officers of the Company have mala fide shifted the employees from their usual main work to some other places requiring them to do only the work of cleaning and sweeping. This was not the order which we had3 ) WHILE recording the statement of Shri Cooper, the learned Counsel appearing for the Company we had asked him for more than once, may be, half a dozen times that a Machine Operator would not be required to clean and sweep the area or floor except the surrounding area of his machine and Shri Cooper had repeatedly told us that was correct. When he made this statement he did so after obtaining instructions from the officers who were personally present in the Court it appears that someone from amongst them is trying to play mischief to continue to brew the problem in the Company. The Company is trying to misread and misconstrue the order by shifting the usual Machine Operators and other workers from their usual and main duty requiring them to do the only incidental part of work of cleaning and4 ) WE, therefore, make the Civil Application absolute in terms of prayer Clause (a) which reads as under: (a) That this Honourable Court be pleased to speak to the minutes of order dated July 19, 1999 to clarify as under:"Only those who are categorised as Machine Operators and who are actually given the work of operating the machines should be called upon to clean only the cubic area surrounding the machine and nothing5 ) SINCE the Industrial Court is seized of the matter and has adjourned the Complaint to September 17, 1999. We feel that such Industrial unrest cannot be allowed to continue for a long period.
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Union of India & Anr Vs. Deepak Niranjan Nath Pandit | Dr Dhananjaya Y Chandrachud, J. 1. Leave granted. 2. The respondent, who is an Assistant Commissioner of Customs, GST and Central Excise was transferred from Mumbai to Bhubaneshwar on 5 September 2019. Challenging the order of transfer, the respondent moved the Central Administrative Tribunal (CAT) in OA No 627 of 2019. By an order dated 17 September 2019, the CAT granted an ad interim stay of the order of transfer. Eventually, after the OA was heard, it was dismissed by the CAT by an order dated 5 November 2019. Aggrieved by the order of the CAT, the respondent moved the High Court of Judicature at Bombay. On 11 November 2019, at the production stage, the High Court continued the ad interim order. By the impugned judgment and order of the High Court dated 2 December 2019, the Writ Petition (Writ Petition No 11669 of 2019) under Article 226 of the Constitution was admitted and by way of an interim order, the ad interim direction granted on 11 November 2019 was continued. The Union of India is in appeal. 3. The services of the respondent are transferable. The order of transfer was issued by the Government of India in the Ministry of Finance (Central Board of Indirect Taxes and Customs) on 5 September 2019. By the order, five officials were transferred from their respective places of posting. The respondent has, however, chosen to contest the order of transfer and as a result of the ad interim order of the CAT and the interim order of the High Court has not joined at the place of posting. In the meantime, the respondent has been suspended. 4. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval. 5. Mr Manan Kumar Mishra, learned Senior Counsel urged that during the course of an earlier hearing, the Union government expressed its readiness to post the respondent at three alternative places instead of Bhubaneswhar and hence the order of transfer may be modified. We decline to allow this jurisdiction to be utilized in terrorem to compel the Union government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice. | 1[ds]In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapprovalWe decline to allow this jurisdiction to be utilized in terrorem to compel the Union government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice. | 1 | 730 | 273 | ### 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:
Dr Dhananjaya Y Chandrachud, J. 1. Leave granted. 2. The respondent, who is an Assistant Commissioner of Customs, GST and Central Excise was transferred from Mumbai to Bhubaneshwar on 5 September 2019. Challenging the order of transfer, the respondent moved the Central Administrative Tribunal (CAT) in OA No 627 of 2019. By an order dated 17 September 2019, the CAT granted an ad interim stay of the order of transfer. Eventually, after the OA was heard, it was dismissed by the CAT by an order dated 5 November 2019. Aggrieved by the order of the CAT, the respondent moved the High Court of Judicature at Bombay. On 11 November 2019, at the production stage, the High Court continued the ad interim order. By the impugned judgment and order of the High Court dated 2 December 2019, the Writ Petition (Writ Petition No 11669 of 2019) under Article 226 of the Constitution was admitted and by way of an interim order, the ad interim direction granted on 11 November 2019 was continued. The Union of India is in appeal. 3. The services of the respondent are transferable. The order of transfer was issued by the Government of India in the Ministry of Finance (Central Board of Indirect Taxes and Customs) on 5 September 2019. By the order, five officials were transferred from their respective places of posting. The respondent has, however, chosen to contest the order of transfer and as a result of the ad interim order of the CAT and the interim order of the High Court has not joined at the place of posting. In the meantime, the respondent has been suspended. 4. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval. 5. Mr Manan Kumar Mishra, learned Senior Counsel urged that during the course of an earlier hearing, the Union government expressed its readiness to post the respondent at three alternative places instead of Bhubaneswhar and hence the order of transfer may be modified. We decline to allow this jurisdiction to be utilized in terrorem to compel the Union government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice.
### Response:
1
### Explanation:
In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapprovalWe decline to allow this jurisdiction to be utilized in terrorem to compel the Union government to post the respondent to a place which he may be prefer. There is no lawful reason for the respondent to cling on to a posting at Mumbai. He cannot claim a posting as of right to a place of his choice.
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State of Punjab Vs. Kasturi Lal and Others | courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court could be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 10. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866 ), this Court summarized some categories of cases where inherent power can an should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged;(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 11. In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) the categories were enumerated as follows: "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima face constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and /or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him to private and personal grudge." 12. Somewhat similar provision is contained in Section 141 of Negotiable Instruments Act, 1881 (in short N.I. Act). The scope and ambit of the said provision has been examined by this Court in several cases. A three Judge Bench in Rajlakshmi Mills v. Shakti Bhakoo (2002) 8 SCC 236 held as follows:- "The appellant had filed a criminal complaint against the respondent as well as her brother-in-law Anoop Bhakoo under Section 138 of the Negotiable Instruments Act because of dishonour of a cheque which had been issued by M/s Sutlez Knitwears of which Anoop Bhakoo and the respondent were partners. Against the summoning order passed by the Magistrate, the respondent filed a petition under Section 482 Cr.P.C. after the respondents application for discharge was unsuccessful.The High Court invoked the provisions of Section 141 of the Negotiation Instruments Act and came to the conclusion that as the respondent was not in charge or responsible for the conduct of the business, therefore of order summoning her was bad in law.We are of the opinion that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not on an assumption of facts come to a finding of fact that the respondent was not responsible for the conduct of the business. On this ground alone, these appeals are allowed and the impugned decision of the High Court is set aside." 13. Above being the position, we are of the view that the High Court was not justified in quashing the charge framed so far as the present respondents are concerned. We make it clear that we are not expressing any opinion on the merits of the case. It goes without saying that the trial Court shall consider the evidence and materials to be placed by the parties in the proper perspective and in accordance with law. | 1[ds]9. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court could be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) the categories were enumerated asWhere the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima face constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and /or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him to private and personal grudge.Somewhat similar provision is contained in Section 141 of Negotiable Instruments Act, 1881 (in short N.I. Act). The scope and ambit of the said provision has been examined by this Court in several cases. A three Judge Bench in Rajlakshmi Mills v. Shakti Bhakoo (2002) 8 SCC 236 held asappellant had filed a criminal complaint against the respondent as well as her brother-in-law Anoop Bhakoo under Section 138 of the Negotiable Instruments Act because of dishonour of a cheque which had been issued by M/s Sutlez Knitwears of which Anoop Bhakoo and the respondent were partners. Against the summoning order passed by the Magistrate, the respondent filed a petition under Section 482 Cr.P.C. after the respondents application for discharge was unsuccessful.The High Court invoked the provisions of Section 141 of the Negotiation Instruments Act and came to the conclusion that as the respondent was not in charge or responsible for the conduct of the business, therefore of order summoning her was bad in law.We are of the opinion that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not on an assumption of facts come to a finding of fact that the respondent was not responsible for the conduct of the business. On this ground alone, these appeals are allowed and the impugned decision of the High Court is set aside.Above being the position, we are of the view that the High Court was not justified in quashing the charge framed so far as the present respondents are concerned. We make it clear that we are not expressing any opinion on the merits of the case. It goes without saying that the trial Court shall consider the evidence and materials to be placed by the parties in the proper perspective and in accordance with law. | 1 | 2,579 | 1,168 | ### 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:
courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court could be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 10. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866 ), this Court summarized some categories of cases where inherent power can an should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged;(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 11. In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) the categories were enumerated as follows: "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima face constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and /or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him to private and personal grudge." 12. Somewhat similar provision is contained in Section 141 of Negotiable Instruments Act, 1881 (in short N.I. Act). The scope and ambit of the said provision has been examined by this Court in several cases. A three Judge Bench in Rajlakshmi Mills v. Shakti Bhakoo (2002) 8 SCC 236 held as follows:- "The appellant had filed a criminal complaint against the respondent as well as her brother-in-law Anoop Bhakoo under Section 138 of the Negotiable Instruments Act because of dishonour of a cheque which had been issued by M/s Sutlez Knitwears of which Anoop Bhakoo and the respondent were partners. Against the summoning order passed by the Magistrate, the respondent filed a petition under Section 482 Cr.P.C. after the respondents application for discharge was unsuccessful.The High Court invoked the provisions of Section 141 of the Negotiation Instruments Act and came to the conclusion that as the respondent was not in charge or responsible for the conduct of the business, therefore of order summoning her was bad in law.We are of the opinion that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not on an assumption of facts come to a finding of fact that the respondent was not responsible for the conduct of the business. On this ground alone, these appeals are allowed and the impugned decision of the High Court is set aside." 13. Above being the position, we are of the view that the High Court was not justified in quashing the charge framed so far as the present respondents are concerned. We make it clear that we are not expressing any opinion on the merits of the case. It goes without saying that the trial Court shall consider the evidence and materials to be placed by the parties in the proper perspective and in accordance with law.
### Response:
1
### Explanation:
may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court could be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) the categories were enumerated asWhere the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima face constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and /or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him to private and personal grudge.Somewhat similar provision is contained in Section 141 of Negotiable Instruments Act, 1881 (in short N.I. Act). The scope and ambit of the said provision has been examined by this Court in several cases. A three Judge Bench in Rajlakshmi Mills v. Shakti Bhakoo (2002) 8 SCC 236 held asappellant had filed a criminal complaint against the respondent as well as her brother-in-law Anoop Bhakoo under Section 138 of the Negotiable Instruments Act because of dishonour of a cheque which had been issued by M/s Sutlez Knitwears of which Anoop Bhakoo and the respondent were partners. Against the summoning order passed by the Magistrate, the respondent filed a petition under Section 482 Cr.P.C. after the respondents application for discharge was unsuccessful.The High Court invoked the provisions of Section 141 of the Negotiation Instruments Act and came to the conclusion that as the respondent was not in charge or responsible for the conduct of the business, therefore of order summoning her was bad in law.We are of the opinion that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not on an assumption of facts come to a finding of fact that the respondent was not responsible for the conduct of the business. On this ground alone, these appeals are allowed and the impugned decision of the High Court is set aside.Above being the position, we are of the view that the High Court was not justified in quashing the charge framed so far as the present respondents are concerned. We make it clear that we are not expressing any opinion on the merits of the case. It goes without saying that the trial Court shall consider the evidence and materials to be placed by the parties in the proper perspective and in accordance with law.
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M/S D.B. Bandodkar & Sons Private Limited Vs. The Assistant Commissioner of Income Tax & Another | note or other document. In support of his claim statement obtained from M/s. OGPL of their hospet ore which showed that M/s. OGPL had sufficient stock when transfer to the assessee company took place. The assessing officer held that M/s. OGPL is sister concern of assessing company and in the absence of any other supporting evidence on the basis of book entries could not be relied upon. The assessing officer observed that these entries at the best would be in the nature of supporting evidence that could be of some help to the assessing company along with other relevant proof regarding actual movement of stock and since no proof of movement of material was made available at the time of survey or subsequently and no bills for loan of cargo were raised by the appellant during the year. The assessee was unable to submit any proof or evidence in support of their claim. The Assessing officer did not accept the contention of the appellant that there was no necessity for raising any debit note or any other documents in respect of the transaction of crores of rupees, and therefore, in the absence of any evidence, the claim of the assessee was rejected. This order was confirmed by Commissioner of Income Tax( Appeals).3. Before the Commissioner Appeals also it was urged that Commissioner of Income Tax has failed to appreciate the facts of the case during the relevant year and passed an order without stating why the facts were ignored and why the reliance was placed only on the purchase bills. It was contended that inter office communication clearly shows the type of ore exported in respect of each shipment during the year and copies of these correspondence in the 2004-05 are enclosed as Annexure 3. The Commissioner of Income Tax again after going through the material did not accept the contention of the appellant and has observed that appellant has not furnished any income correspondence or transaction receipt in support of his claim that iron ore belong to M/s. OGPL has been borrowed by the appellant company. The Commissioner of Income Tax has observed in its order as under:-It is quite unbelievable that when substantial quantity of 18869 MT of iron ore belongs to M/s. OGPL, there was no reason why the said material was lying at the railway plot belonging to the appellant company and not at the premises of M/s. OGPL. It may be mentioned that the appellant purchases high grade iron ore from Hospet/Bellery region and mix the same with low grade iron ore in Goa and make them into saleable grade and thereafter, export them. It has been widely reported in press that huge quantity of high grade ore has been illegally mined in Karnataka over the last several years and most of them have been sold without being accounted. It is quite apparent that the appellant has purchased the high grade 18869 MT of iron ore without recording in the books of account and after mixing it with low grade stock, has exported in various consignment abroad. He has further observed that during the course of argument he has submitted five inter-office correspondences. The Commissioner of Income Tax has observed that this reflect only grade wise order loaded in various vessels and details of tonnage and moisture content. However, in none of the documents, there is any mention of temporary loan of iron ore from M/s. OGPL to the appellant company and therefore on this ground appeal was rejected. Same was the case in respect of next assessment year. The Assessing Officer and the Commissioner (Appeals) passed an order against the appellant which order was confirmed by Commissioner of Income Tax. Two appeals were filed before Income Tax Appellate Tribunal bearing ITA No. 191 and 192/ONJ/2011 which were disposed of by common order.4. Before Income Tax Appellate Tribunal an application was filed for bringing additional evidence on record. The said application was rejected and both the Income Tax Appeals were rejected and were dismissed and the order passed by lower authority was confirmed.5. Learned Counsel appearing on behalf of the appellant firstly submitted that in rejecting the application for bringing additional evidence on record it was submitted that the relevant material was available with the assessing officer and he ought to have perused the said material on record. He submitted that assessing officer has observed that the entries in the books of account could be held to be supportive evidence in support of primary material and when other relevant documents and account will be produced. In view of this finding the application for bringing additional evidence on record ought to have been allowed. It was contended that Income Tax Appellate Tribunal and lower authority had given incorrect finding. Learned Senior Counsel has taken us to the observation made by Income Tax Appellate Tribunal and the assessing officer.6. In our view no substantial question of law will arise in this appeal and all the three authorities have taken into consideration material which is on record and have carefully given their finding. Inspite of the several opportunities given to the appellant the documentary evidence was not produced on record to establish the same and only at the time of hearing of the appeal before Income Tax Appellate Tribunal an application for bringing additional evidence on record was filed even then the said application was considered and was rejected by reasoned order.7. In our view, therefore, no case is made out for interfering with the orders passed by the authorities below. All the authorities have considered the evidence on record. The appellant on the other hand is not being in a position to establish or to give satisfactory reason in respect of unaccounted iron ore to the tune of 18869 M. T. The Income Tax Appellate Tribunal was justified in rejecting the application for bringing additional evidence on record and also dismissed the Income Tax Appeals No. 191 and 192 of 2011 for the year 2005-06 and 2006-07. | 0[ds]6. In our view no substantial question of law will arise in this appeal and all the three authorities have taken into consideration material which is on record and have carefully given their finding. Inspite of the several opportunities given to the appellant the documentary evidence was not produced on record to establish the same and only at the time of hearing of the appeal before Income Tax Appellate Tribunal an application for bringing additional evidence on record was filed even then the said application was considered and was rejected by reasoned order.7. In our view, therefore, no case is made out for interfering with the orders passed by the authorities below. All the authorities have considered the evidence on record. The appellant on the other hand is not being in a position to establish or to give satisfactory reason in respect of unaccounted iron ore to the tune of 18869 M. T. The Income Tax Appellate Tribunal was justified in rejecting the application for bringing additional evidence on record and also dismissed the Income Tax Appeals No. 191 and 192 of 2011 for the year | 0 | 1,808 | 198 | ### 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:
note or other document. In support of his claim statement obtained from M/s. OGPL of their hospet ore which showed that M/s. OGPL had sufficient stock when transfer to the assessee company took place. The assessing officer held that M/s. OGPL is sister concern of assessing company and in the absence of any other supporting evidence on the basis of book entries could not be relied upon. The assessing officer observed that these entries at the best would be in the nature of supporting evidence that could be of some help to the assessing company along with other relevant proof regarding actual movement of stock and since no proof of movement of material was made available at the time of survey or subsequently and no bills for loan of cargo were raised by the appellant during the year. The assessee was unable to submit any proof or evidence in support of their claim. The Assessing officer did not accept the contention of the appellant that there was no necessity for raising any debit note or any other documents in respect of the transaction of crores of rupees, and therefore, in the absence of any evidence, the claim of the assessee was rejected. This order was confirmed by Commissioner of Income Tax( Appeals).3. Before the Commissioner Appeals also it was urged that Commissioner of Income Tax has failed to appreciate the facts of the case during the relevant year and passed an order without stating why the facts were ignored and why the reliance was placed only on the purchase bills. It was contended that inter office communication clearly shows the type of ore exported in respect of each shipment during the year and copies of these correspondence in the 2004-05 are enclosed as Annexure 3. The Commissioner of Income Tax again after going through the material did not accept the contention of the appellant and has observed that appellant has not furnished any income correspondence or transaction receipt in support of his claim that iron ore belong to M/s. OGPL has been borrowed by the appellant company. The Commissioner of Income Tax has observed in its order as under:-It is quite unbelievable that when substantial quantity of 18869 MT of iron ore belongs to M/s. OGPL, there was no reason why the said material was lying at the railway plot belonging to the appellant company and not at the premises of M/s. OGPL. It may be mentioned that the appellant purchases high grade iron ore from Hospet/Bellery region and mix the same with low grade iron ore in Goa and make them into saleable grade and thereafter, export them. It has been widely reported in press that huge quantity of high grade ore has been illegally mined in Karnataka over the last several years and most of them have been sold without being accounted. It is quite apparent that the appellant has purchased the high grade 18869 MT of iron ore without recording in the books of account and after mixing it with low grade stock, has exported in various consignment abroad. He has further observed that during the course of argument he has submitted five inter-office correspondences. The Commissioner of Income Tax has observed that this reflect only grade wise order loaded in various vessels and details of tonnage and moisture content. However, in none of the documents, there is any mention of temporary loan of iron ore from M/s. OGPL to the appellant company and therefore on this ground appeal was rejected. Same was the case in respect of next assessment year. The Assessing Officer and the Commissioner (Appeals) passed an order against the appellant which order was confirmed by Commissioner of Income Tax. Two appeals were filed before Income Tax Appellate Tribunal bearing ITA No. 191 and 192/ONJ/2011 which were disposed of by common order.4. Before Income Tax Appellate Tribunal an application was filed for bringing additional evidence on record. The said application was rejected and both the Income Tax Appeals were rejected and were dismissed and the order passed by lower authority was confirmed.5. Learned Counsel appearing on behalf of the appellant firstly submitted that in rejecting the application for bringing additional evidence on record it was submitted that the relevant material was available with the assessing officer and he ought to have perused the said material on record. He submitted that assessing officer has observed that the entries in the books of account could be held to be supportive evidence in support of primary material and when other relevant documents and account will be produced. In view of this finding the application for bringing additional evidence on record ought to have been allowed. It was contended that Income Tax Appellate Tribunal and lower authority had given incorrect finding. Learned Senior Counsel has taken us to the observation made by Income Tax Appellate Tribunal and the assessing officer.6. In our view no substantial question of law will arise in this appeal and all the three authorities have taken into consideration material which is on record and have carefully given their finding. Inspite of the several opportunities given to the appellant the documentary evidence was not produced on record to establish the same and only at the time of hearing of the appeal before Income Tax Appellate Tribunal an application for bringing additional evidence on record was filed even then the said application was considered and was rejected by reasoned order.7. In our view, therefore, no case is made out for interfering with the orders passed by the authorities below. All the authorities have considered the evidence on record. The appellant on the other hand is not being in a position to establish or to give satisfactory reason in respect of unaccounted iron ore to the tune of 18869 M. T. The Income Tax Appellate Tribunal was justified in rejecting the application for bringing additional evidence on record and also dismissed the Income Tax Appeals No. 191 and 192 of 2011 for the year 2005-06 and 2006-07.
### Response:
0
### Explanation:
6. In our view no substantial question of law will arise in this appeal and all the three authorities have taken into consideration material which is on record and have carefully given their finding. Inspite of the several opportunities given to the appellant the documentary evidence was not produced on record to establish the same and only at the time of hearing of the appeal before Income Tax Appellate Tribunal an application for bringing additional evidence on record was filed even then the said application was considered and was rejected by reasoned order.7. In our view, therefore, no case is made out for interfering with the orders passed by the authorities below. All the authorities have considered the evidence on record. The appellant on the other hand is not being in a position to establish or to give satisfactory reason in respect of unaccounted iron ore to the tune of 18869 M. T. The Income Tax Appellate Tribunal was justified in rejecting the application for bringing additional evidence on record and also dismissed the Income Tax Appeals No. 191 and 192 of 2011 for the year
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M. K. Balakrishnan Menon Vs. Asstt. Controller Of Estate Duty-Cum-I.T.O.Ernakulam | which the deceased is governed for the purpose of ascertaining the extent of his interest in the property. The provisions of Section 7 of the succession Act have to be read together with section 7 of the Act for determining the interest which the deceased had in the Sthanam property on which the estate duty would be leviable. This position is not controverted by the Counsel for the Respondent. The controversy thus narrows down to the true scope and ambit of the provisions of Section 7 (3) of the Succession Act. On behalf of the appellant it has been maintained that on a proper construction of the language employed in Section 7 (3) it should be held that before the death of the Sthanamdar which took place in accordance with what is provided in sub-section (3) of the Sthanam property and that on his death all that devolved on his heirs was the share which the Sthanamedar would have got in that partition (sic). It is pointed out that the legal fiction of partition or division is created of sub-s. (3) for the definite purpose of allotting a share in the sthanam properties to the personal heirs of the Sthanamdar which could not be done under the general Marumakkattayam law. The partition thus had to be real and effective and the Sthanamdar should be considered to have died as a divided member. In other words the true position, according to the learned counsel for the appellant, is that the division per capita under Section 7 (3) took place immediately before the death of the Sthanamdar with the result that the interest which he had in the Sthanam property was only to the extent of his share which alone devolved upon his heirs. On the other hand the position taken up on behalf of the respondent before the High Court, which was accepted and which has been reiterated before us, is that Section 7 (3) merely creates a legal fiction for the purpose of distribution of the properties which is to take place after the death of Sthanamdar and that being the sole purpose for which the legal fiction was introduced it could not be extended further so as to include an actual division or partition having been effected in the lifetime of the Sthanamdar with the result that he became a divided member for all purposes. 9. We have had occasion to notice in some detail the incidents of the institution of Sthanam and Sthanamdar as also the nature of the Sthanam property held by the Sthanamdar. It has not been disputed before us on behalf of the appellant that during his lifetime the Sthanam property belonged to the Sthanamdar. Certain restrictions were placed on his powers of alienation but that did not detract from the nature of the estate held by him. The cesser of his interest in the Sthanam property would be of the whole of that property and the benefit that would accrue or arise by the cesser of such interest would also be of the entire Sthanam property. Position would be different only if Section 7 (3) of the Succession Act is so construed as to lead to the result that a partition or division of the Sthanam property shall be deemed to have taken pace during his lifetime. In our judgment such an interpretation of Section 7 (3) of the Succession Act is likely to involve the constitutionality of that provision in view of the decision of this Court in K. K. Kochunis case, 1960-3 SCR 887 = (AIR 1960 SC 1080 ). In other words by bringing about a statutory division or partition of the Sthanam property by which the Sthanamdar will be deprived of that property except to the extent of a per capita share therein will be infringement of Article 19 (1) (f) of the Constitution. The Court ought not to interpret statutory provisions unless compelled by their language in such a manner as would involve its Constitutionality because the legislature is presumed to enact a law which does not contravene or violate the constitutional provisions. The other construction which has been accepted by the High Court appears to be more in consonance with the background in which Section 7 (3) of the Succession Act has been enacted. The legal fiction also which has been introduced should only be limited to that purpose and there can be no justification or extending it. The legal fiction created by the words "as if the Sthanam property had been divided per capita immediately before the death of the Sthanamdar" appears to be meant solely for the purpose of gradually liquidating the Sthanams and distributing the Sthanam properties amongst the members of the Sthanees tarwad and his personal heirs without infringing the provisions of the Constitution. It may be pointed out that neither the members of the tarwad nor the personal heirs of the Sthanee had any interest in the Sthanam properties. The first part of Section 7 (3) clearly provides that the property which passes on the death of the Sthanamdar is the whole of the Sthanam property held by him. The second part only deals with distribution of that property. We have no doubt that the High Court was right in saying that the word "devolve" as used in the first part has the meaning given to it by Leach M. R. in Parr v. Parr, (1833) 2 LJ Ch 167 of passing from a person dying to a person living. Thus the Sthanam property held by the Sthanamdar has to pass from the Sthanamdar to the members of the family to which he belonged and his heirs Legal fiction in the words which have been set out do not cut down the Sthanam property that passes on the death of Sthanamdar to a per capita share the fiction having been introduced only for determining the respective shares for the purpose of distribution to the members of the family and the heirs of Sthanamdar. | 0[ds]8. As regards the first point it has already been mentioned that before the High Court there was no dispute that if the Court had to look to the provisions of the Act alone the entire property of the Sthanam was liable to estate dutyThe provisions of Section 7 of the succession Act have to be read together with section 7 of the Act for determining the interest which the deceased had in the Sthanam property on which the estate duty would be leviable. This position is not controverted by the Counsel for the Respondent. The controversy thus narrows down to the true scope and ambit of the provisions of Section 7 (3) of the Succession Act. On behalf of the appellant it has been maintained that on a proper construction of the language employed in Section 7 (3) it should be held that before the death of the Sthanamdar which took place in accordance with what is provided in sub-section (3) of the Sthanam property and that on his death all that devolved on his heirs was the share which the Sthanamedar would have got in that partition (sic). It is pointed out that the legal fiction of partition or division is created of sub-s. (3) for the definite purpose of allotting a share in the sthanam properties to the personal heirs of the Sthanamdar which could not be done under the general Marumakkattayam law. The partition thus had to be real and effective and the Sthanamdar should be considered to have died as a divided member. In other words the true position, according to the learned counsel for the appellant, is that the division per capita under Section 7 (3) took place immediately before the death of the Sthanamdar with the result that the interest which he had in the Sthanam property was only to the extent of his share which alone devolved upon his heirs. On the other hand the position taken up on behalf of the respondent before the High Court, which was accepted and which has been reiterated before us, is that Section 7 (3) merely creates a legal fiction for the purpose of distribution of the properties which is to take place after the death of Sthanamdar and that being the sole purpose for which the legal fiction was introduced it could not be extended further so as to include an actual division or partition having been effected in the lifetime of the Sthanamdar with the result that he became a divided member for all purposes9. We have had occasion to notice in some detail the incidents of the institution of Sthanam and Sthanamdar as also the nature of the Sthanam property held by the Sthanamdar. It has not been disputed before us on behalf of the appellant that during his lifetime the Sthanam property belonged to the Sthanamdar. Certain restrictions were placed on his powers of alienation but that did not detract from the nature of the estate held by him. The cesser of his interest in the Sthanam property would be of the whole of that property and the benefit that would accrue or arise by the cesser of such interest would also be of the entire Sthanam property. Position would be different only if Section 7 (3) of the Succession Act is so construed as to lead to the result that a partition or division of the Sthanam property shall be deemed to have taken pace during his lifetime. In our judgment such an interpretation of Section 7 (3) of the Succession Act is likely to involve the constitutionality of that provision in view of the decision of this Court in K. K. Kochunis case, 1960-3 SCR 887 = (AIR 1960 SC 1080 ). In other words by bringing about a statutory division or partition of the Sthanam property by which the Sthanamdar will be deprived of that property except to the extent of a per capita share therein will be infringement of Article 19 (1) (f) of the Constitution. The Court ought not to interpret statutory provisions unless compelled by their language in such a manner as would involve its Constitutionality because the legislature is presumed to enact a law which does not contravene or violate the constitutional provisions. The other construction which has been accepted by the High Court appears to be more in consonance with the background in which Section 7 (3) of the Succession Act has been enacted. The legal fiction also which has been introduced should only be limited to that purpose and there can be no justification or extending it. The legal fiction created by the words "as if the Sthanam property had been divided per capita immediately before the death of the Sthanamdar" appears to be meant solely for the purpose of gradually liquidating the Sthanams and distributing the Sthanam properties amongst the members of the Sthanees tarwad and his personal heirs without infringing the provisions of the Constitution. It may be pointed out that neither the members of the tarwad nor the personal heirs of the Sthanee had any interest in the Sthanam properties. The first part of Section 7 (3) clearly provides that the property which passes on the death of the Sthanamdar is the whole of the Sthanam property held by him. The second part only deals with distribution of that property. We have no doubt that the High Court was right in saying that the word "devolve" as used in the first part has the meaning given to it by LeachM. R. in Parr v. Parr, (1833) 2 LJ Ch167 of passing from a person dying to a person living. Thus the Sthanam property held by the Sthanamdar has to pass from the Sthanamdar to the members of the family to which he belonged and his heirs Legal fiction in the words which have been set out do not cut down the Sthanam property that passes on the death of Sthanamdar to a per capita share the fiction having been introduced only for determining the respective shares for the purpose of distribution to the members of the family and the heirs of SthanamdarIn order to determine as to what property shall be deemed to pass on the death of Sthanamdar it is necessary to decide the nature of the Sthanam property and the interest of the Sthanamdar in that property. For this purpose we have to turn to the Marumakkattayam branch of Hindu law and then consider what is the exact ambit and scope of the changes which have been made under that law so far as succession is concerned in the case of Sthamdar by the Succession Act to the extent it is material in the present case. As pointed out in Maynes Hindu Law and Usage, 1950 Edn. Marumakkattayam law is a body of customs and usages which have received judicial recognition. It prevails among a considerable section of the people inhabiting the west coast of South India. The literal meaning of the word "Marumakkattayam" is inheritance through nephews and nieces. The essential difference between Marumakkattayam and the other schools of Hindu Law is that the former is founded on the matriarchate while the latter is founded upon the agnatic family. In the Mitakshara joint family the members claim their descent from a common ancestor but in a Marumakkattayam family which is known as the tarwad the descent is from a common ancestress. Tarwad is the name given to a joint family conception of males and females who have all descended in the family line from a common ancestress. Mayne compares a tarwad to a family corporation. Every member of a tarwad has equal rights in the property by reason of his or her birth in the tarwad. It was laid down in a course of judicial decisions in the nineteenth century that one or more members of a tarwad cannot claim partition and separate possession of his or their share of the tarwad property without the consent or concurrence of all the members of the tarwad. The Madras legislature enacted certain statutes giving a right of partition to the members of a tarwad to enforce partition of a tarwad property. The shares on partition were to be on per capita basis5. Now Sthanam and Sthanamdar emerged in this manner, Some of the aristocratic Hindu families in the west coast had attached to their families an office called Sthanam meaning literally "status, rank or dignity.. The holder of Sthanam was calla Sthanee or Sthanamdar. The rulers granted Sthanams to their chieftains and important public officers which were usually accompanied by a grant of land for the maintenance of the dignity of the officer. In addition to the families of princes and chieftains there were other families which possessed Sthanams without any particular dignity attached to them. The incidents of the institution were that the senior most member of the family became the Sthanamdar who was usually the male member; but there were instances where the senior most female member became the Sthanamdar. Separate properties belonged to each Sthanam and they vested in the holder of the office for the time being and descended to the successors in office. One important feature was that Sthanamtlar ceased to have any interest in the property of his tarwad and the members of his tarwad had in their turn only reversionary rights to the Sthanam properties. The Sthanamdar had a limited estate in the sense that he could encumber or alienate the Sthanam properties only for a legal necessity like any limited owner but otherwise he was absolutely entitled to the income accruing during hits tenure of office. His position was analogous to that of a holder of an impartible estate. His successor had no interest in it and the right of the successor was nothing more than a spes succession. There is a good deal of discussion on these matters in a judgment of this court in Kavalapyara Kottarathil Kochuni v. The State of Madras,3 SCR 887 = (AIR 1960 SC 1080 ) which is on the same lines as above. In that case the constitutionality of the provisions of the Madras Marumakkattayain (Removal of Doubts) Act, 1955 passed by the Madras Legislature soon after a decision of the Privy Council declaring that the properties in possession of the Sthanamdar were Sthanam properties in which the members of the tarwad had no interest had been challenged. By Section 2 of that Act it had been provide that any Sthanam in respect of which there was or had been, at any time, an intermingling of the properties of the Sthanam and the properties of the tarwad or the members of the tarwad had been receiving maintenance from the properties of the Sthanam or there had been a vacancy caused by there being no male member of the tarwad eligible to succeed to the Sthanamdar, shall be deemed to be a Marumakkattayam tarwad and the properties appertaining to such Sthanam shall be deemed to be properties belonging to the tarwad. It was held in the majority judgment that the aforesaid provisions of the Madras Act were a device to deprive the Sthanam of its properties and vest them in the tarwad and as such they were directly hit by Article 19 (1) (f) and could not be saved by Article 19 (5) of the ConstittltionThe result of the enactment of section (3) of the Succession Act, is that the Sthanams continued till the death of the Sthanamdar and thereafter the Sthanam property devolved upon the members of the family to which the Sthanamdar belonged and the heirs of the Sthanamdar (his personal heirs). The division was to be per capita on the basis of a notional partition having taken place immediately before the death of the Sthanamdar. | 0 | 3,471 | 2,087 | ### 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:
which the deceased is governed for the purpose of ascertaining the extent of his interest in the property. The provisions of Section 7 of the succession Act have to be read together with section 7 of the Act for determining the interest which the deceased had in the Sthanam property on which the estate duty would be leviable. This position is not controverted by the Counsel for the Respondent. The controversy thus narrows down to the true scope and ambit of the provisions of Section 7 (3) of the Succession Act. On behalf of the appellant it has been maintained that on a proper construction of the language employed in Section 7 (3) it should be held that before the death of the Sthanamdar which took place in accordance with what is provided in sub-section (3) of the Sthanam property and that on his death all that devolved on his heirs was the share which the Sthanamedar would have got in that partition (sic). It is pointed out that the legal fiction of partition or division is created of sub-s. (3) for the definite purpose of allotting a share in the sthanam properties to the personal heirs of the Sthanamdar which could not be done under the general Marumakkattayam law. The partition thus had to be real and effective and the Sthanamdar should be considered to have died as a divided member. In other words the true position, according to the learned counsel for the appellant, is that the division per capita under Section 7 (3) took place immediately before the death of the Sthanamdar with the result that the interest which he had in the Sthanam property was only to the extent of his share which alone devolved upon his heirs. On the other hand the position taken up on behalf of the respondent before the High Court, which was accepted and which has been reiterated before us, is that Section 7 (3) merely creates a legal fiction for the purpose of distribution of the properties which is to take place after the death of Sthanamdar and that being the sole purpose for which the legal fiction was introduced it could not be extended further so as to include an actual division or partition having been effected in the lifetime of the Sthanamdar with the result that he became a divided member for all purposes. 9. We have had occasion to notice in some detail the incidents of the institution of Sthanam and Sthanamdar as also the nature of the Sthanam property held by the Sthanamdar. It has not been disputed before us on behalf of the appellant that during his lifetime the Sthanam property belonged to the Sthanamdar. Certain restrictions were placed on his powers of alienation but that did not detract from the nature of the estate held by him. The cesser of his interest in the Sthanam property would be of the whole of that property and the benefit that would accrue or arise by the cesser of such interest would also be of the entire Sthanam property. Position would be different only if Section 7 (3) of the Succession Act is so construed as to lead to the result that a partition or division of the Sthanam property shall be deemed to have taken pace during his lifetime. In our judgment such an interpretation of Section 7 (3) of the Succession Act is likely to involve the constitutionality of that provision in view of the decision of this Court in K. K. Kochunis case, 1960-3 SCR 887 = (AIR 1960 SC 1080 ). In other words by bringing about a statutory division or partition of the Sthanam property by which the Sthanamdar will be deprived of that property except to the extent of a per capita share therein will be infringement of Article 19 (1) (f) of the Constitution. The Court ought not to interpret statutory provisions unless compelled by their language in such a manner as would involve its Constitutionality because the legislature is presumed to enact a law which does not contravene or violate the constitutional provisions. The other construction which has been accepted by the High Court appears to be more in consonance with the background in which Section 7 (3) of the Succession Act has been enacted. The legal fiction also which has been introduced should only be limited to that purpose and there can be no justification or extending it. The legal fiction created by the words "as if the Sthanam property had been divided per capita immediately before the death of the Sthanamdar" appears to be meant solely for the purpose of gradually liquidating the Sthanams and distributing the Sthanam properties amongst the members of the Sthanees tarwad and his personal heirs without infringing the provisions of the Constitution. It may be pointed out that neither the members of the tarwad nor the personal heirs of the Sthanee had any interest in the Sthanam properties. The first part of Section 7 (3) clearly provides that the property which passes on the death of the Sthanamdar is the whole of the Sthanam property held by him. The second part only deals with distribution of that property. We have no doubt that the High Court was right in saying that the word "devolve" as used in the first part has the meaning given to it by Leach M. R. in Parr v. Parr, (1833) 2 LJ Ch 167 of passing from a person dying to a person living. Thus the Sthanam property held by the Sthanamdar has to pass from the Sthanamdar to the members of the family to which he belonged and his heirs Legal fiction in the words which have been set out do not cut down the Sthanam property that passes on the death of Sthanamdar to a per capita share the fiction having been introduced only for determining the respective shares for the purpose of distribution to the members of the family and the heirs of Sthanamdar.
### Response:
0
### Explanation:
Legal fiction in the words which have been set out do not cut down the Sthanam property that passes on the death of Sthanamdar to a per capita share the fiction having been introduced only for determining the respective shares for the purpose of distribution to the members of the family and the heirs of SthanamdarIn order to determine as to what property shall be deemed to pass on the death of Sthanamdar it is necessary to decide the nature of the Sthanam property and the interest of the Sthanamdar in that property. For this purpose we have to turn to the Marumakkattayam branch of Hindu law and then consider what is the exact ambit and scope of the changes which have been made under that law so far as succession is concerned in the case of Sthamdar by the Succession Act to the extent it is material in the present case. As pointed out in Maynes Hindu Law and Usage, 1950 Edn. Marumakkattayam law is a body of customs and usages which have received judicial recognition. It prevails among a considerable section of the people inhabiting the west coast of South India. The literal meaning of the word "Marumakkattayam" is inheritance through nephews and nieces. The essential difference between Marumakkattayam and the other schools of Hindu Law is that the former is founded on the matriarchate while the latter is founded upon the agnatic family. In the Mitakshara joint family the members claim their descent from a common ancestor but in a Marumakkattayam family which is known as the tarwad the descent is from a common ancestress. Tarwad is the name given to a joint family conception of males and females who have all descended in the family line from a common ancestress. Mayne compares a tarwad to a family corporation. Every member of a tarwad has equal rights in the property by reason of his or her birth in the tarwad. It was laid down in a course of judicial decisions in the nineteenth century that one or more members of a tarwad cannot claim partition and separate possession of his or their share of the tarwad property without the consent or concurrence of all the members of the tarwad. The Madras legislature enacted certain statutes giving a right of partition to the members of a tarwad to enforce partition of a tarwad property. The shares on partition were to be on per capita basis5. Now Sthanam and Sthanamdar emerged in this manner, Some of the aristocratic Hindu families in the west coast had attached to their families an office called Sthanam meaning literally "status, rank or dignity.. The holder of Sthanam was calla Sthanee or Sthanamdar. The rulers granted Sthanams to their chieftains and important public officers which were usually accompanied by a grant of land for the maintenance of the dignity of the officer. In addition to the families of princes and chieftains there were other families which possessed Sthanams without any particular dignity attached to them. The incidents of the institution were that the senior most member of the family became the Sthanamdar who was usually the male member; but there were instances where the senior most female member became the Sthanamdar. Separate properties belonged to each Sthanam and they vested in the holder of the office for the time being and descended to the successors in office. One important feature was that Sthanamtlar ceased to have any interest in the property of his tarwad and the members of his tarwad had in their turn only reversionary rights to the Sthanam properties. The Sthanamdar had a limited estate in the sense that he could encumber or alienate the Sthanam properties only for a legal necessity like any limited owner but otherwise he was absolutely entitled to the income accruing during hits tenure of office. His position was analogous to that of a holder of an impartible estate. His successor had no interest in it and the right of the successor was nothing more than a spes succession. There is a good deal of discussion on these matters in a judgment of this court in Kavalapyara Kottarathil Kochuni v. The State of Madras,3 SCR 887 = (AIR 1960 SC 1080 ) which is on the same lines as above. In that case the constitutionality of the provisions of the Madras Marumakkattayain (Removal of Doubts) Act, 1955 passed by the Madras Legislature soon after a decision of the Privy Council declaring that the properties in possession of the Sthanamdar were Sthanam properties in which the members of the tarwad had no interest had been challenged. By Section 2 of that Act it had been provide that any Sthanam in respect of which there was or had been, at any time, an intermingling of the properties of the Sthanam and the properties of the tarwad or the members of the tarwad had been receiving maintenance from the properties of the Sthanam or there had been a vacancy caused by there being no male member of the tarwad eligible to succeed to the Sthanamdar, shall be deemed to be a Marumakkattayam tarwad and the properties appertaining to such Sthanam shall be deemed to be properties belonging to the tarwad. It was held in the majority judgment that the aforesaid provisions of the Madras Act were a device to deprive the Sthanam of its properties and vest them in the tarwad and as such they were directly hit by Article 19 (1) (f) and could not be saved by Article 19 (5) of the ConstittltionThe result of the enactment of section (3) of the Succession Act, is that the Sthanams continued till the death of the Sthanamdar and thereafter the Sthanam property devolved upon the members of the family to which the Sthanamdar belonged and the heirs of the Sthanamdar (his personal heirs). The division was to be per capita on the basis of a notional partition having taken place immediately before the death of the Sthanamdar.
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Comptroller & Auditor General Vs. Kamlesh Vadilal Mehta | of the Companies Act; and the usual practice of private companies relying on partnerships, largely to the exclusion of proprietary firms. 7. The aforesaid argument raises the question as to whether the sub-classification of partnership firms stands the test of reasonableness on the touchstone of Article 14. 8. It is not disputed that the Chartered Accountants having qualification are eligible for being considered for entrustment of audit work for public sector undertaking or the government concerns. Once it is accepted that these Chartered Accountants are qualified and eligible for the audit work and also are eligible for being brought on the panel of audit work for public sector undertakings and government concerns, there appears no valid reason why the impugned advertisement has created a sub-classification from the general class of eligible Chartered Accountants which relates to a smaller group of Chartered Accountants who form partnership concerns only. 9. The appellant insists that it is only a smaller group of Chartered Accountants firms that would be eligible for being brought on the panel for audit of public sector undertakings or government concerns. The audit work of public sector undertaking, no doubt, is to be done by the qualified and efficient Chartered Accountants. Once a person is qualified, experienced and efficient, it is difficult to understand how be could be discriminated against only for the reason that he has chosen to act alone in the professional career and has been able to form a partnership firm. The efficiency, as pointed out by the High Court, springs from the personal experience, proficiency and personal capacities. It is, therefore, not possible to link these characteristics and professional acumen to a person or persons in a firm alone. A single individual as an auditor in a proprietary concern can have such characteristics and professional acumen by himself and also through the assistance of experienced auditor who could be in his services as efficient as any partnership firm. It is often seen in many cases that some of the partners of the partnership firm are sleeping partners with no professional duties to discharge. A partnership concern is not a legal entity like company; it is a group of individual partners. In a partnership firm, it is the partner who will be assisted in carrying out the work but quite remains the eligible Chartered Accountant. It is the same situation as in a proprietary concern where a Chartered Accountant would be carrying on audit work all-in-one. Merely because some of the Chartered Accountants have formed a partnership firm, it cannot be assumed that they become more efficient for carrying out audit work than the individual Chartered Accountant who forms proprietary concern. It is, therefore, evident that the appellant himself erroneously assumed that the partnership firms are more efficient than the proprietary concern in the matter of audit of accounts of the public sector undertakings or of the government concerns. 10. A useful analogy may be drawn with the experiences of the legal profession. It could not be justifiably argued that the quality of the legal services rendered by a senior advocate is compromised by virtue of the fact that he is the sole and ultimate repository of knowledge and responsibility in a given matter. Nor could it reasonably be said that a client would be put to unnecessary risk by being compelled to sink or swim with the solitary lawyer. Personal experience and integrity are the essential attributes of every successful professional and they are the virtues that win the day for the client, whether it is a corporation seeking an audit of its accounts or an individual seeking a remedy in court. A clear line of command is also known to prevent a diffusion of responsibility. As such a Chartered Accountant cannot be discriminated against merely because he elected to invest his professional expertise in a proprietary concern, rather than to express it in the form of a partnership firm. 11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved. 12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution. 13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States. 14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the Constitution. | 0[ds]11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the ConstitutionThis argument has no substance. It must be borne in mind that there is difference between framing of a policy which is an administrative function and an exercise of statutory functions. The function of the Comptroller and Auditor General in respect of appointment of auditors for government corporations and public sector undertakings is statutorily assigned under the Companies Act and it cannot then be urged that the Comptroller and Auditor General is free to act untrammeled and unreasonably. Whenever the CAG appoints an auditor for audit of government corporations and public sector undertakings under the Companies Act, he exercises statutory powers under the Companies Act and such an exercise of power manifestly is a statutory function and not a matter of policy. | 0 | 2,281 | 505 | ### Instruction:
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of the Companies Act; and the usual practice of private companies relying on partnerships, largely to the exclusion of proprietary firms. 7. The aforesaid argument raises the question as to whether the sub-classification of partnership firms stands the test of reasonableness on the touchstone of Article 14. 8. It is not disputed that the Chartered Accountants having qualification are eligible for being considered for entrustment of audit work for public sector undertaking or the government concerns. Once it is accepted that these Chartered Accountants are qualified and eligible for the audit work and also are eligible for being brought on the panel of audit work for public sector undertakings and government concerns, there appears no valid reason why the impugned advertisement has created a sub-classification from the general class of eligible Chartered Accountants which relates to a smaller group of Chartered Accountants who form partnership concerns only. 9. The appellant insists that it is only a smaller group of Chartered Accountants firms that would be eligible for being brought on the panel for audit of public sector undertakings or government concerns. The audit work of public sector undertaking, no doubt, is to be done by the qualified and efficient Chartered Accountants. Once a person is qualified, experienced and efficient, it is difficult to understand how be could be discriminated against only for the reason that he has chosen to act alone in the professional career and has been able to form a partnership firm. The efficiency, as pointed out by the High Court, springs from the personal experience, proficiency and personal capacities. It is, therefore, not possible to link these characteristics and professional acumen to a person or persons in a firm alone. A single individual as an auditor in a proprietary concern can have such characteristics and professional acumen by himself and also through the assistance of experienced auditor who could be in his services as efficient as any partnership firm. It is often seen in many cases that some of the partners of the partnership firm are sleeping partners with no professional duties to discharge. A partnership concern is not a legal entity like company; it is a group of individual partners. In a partnership firm, it is the partner who will be assisted in carrying out the work but quite remains the eligible Chartered Accountant. It is the same situation as in a proprietary concern where a Chartered Accountant would be carrying on audit work all-in-one. Merely because some of the Chartered Accountants have formed a partnership firm, it cannot be assumed that they become more efficient for carrying out audit work than the individual Chartered Accountant who forms proprietary concern. It is, therefore, evident that the appellant himself erroneously assumed that the partnership firms are more efficient than the proprietary concern in the matter of audit of accounts of the public sector undertakings or of the government concerns. 10. A useful analogy may be drawn with the experiences of the legal profession. It could not be justifiably argued that the quality of the legal services rendered by a senior advocate is compromised by virtue of the fact that he is the sole and ultimate repository of knowledge and responsibility in a given matter. Nor could it reasonably be said that a client would be put to unnecessary risk by being compelled to sink or swim with the solitary lawyer. Personal experience and integrity are the essential attributes of every successful professional and they are the virtues that win the day for the client, whether it is a corporation seeking an audit of its accounts or an individual seeking a remedy in court. A clear line of command is also known to prevent a diffusion of responsibility. As such a Chartered Accountant cannot be discriminated against merely because he elected to invest his professional expertise in a proprietary concern, rather than to express it in the form of a partnership firm. 11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved. 12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution. 13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States. 14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the Constitution.
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11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the ConstitutionThis argument has no substance. It must be borne in mind that there is difference between framing of a policy which is an administrative function and an exercise of statutory functions. The function of the Comptroller and Auditor General in respect of appointment of auditors for government corporations and public sector undertakings is statutorily assigned under the Companies Act and it cannot then be urged that the Comptroller and Auditor General is free to act untrammeled and unreasonably. Whenever the CAG appoints an auditor for audit of government corporations and public sector undertakings under the Companies Act, he exercises statutory powers under the Companies Act and such an exercise of power manifestly is a statutory function and not a matter of policy.
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MAXOPP INVESTMENT LTD Vs. COMMR.OF I.T NEW DELHI | profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter. 39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned. 40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove. 41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO. 42. Civil Appeal No. 1423 of 2015 is filed by M/s. Avon Cycles Limited, Ludhiana, wherein the AO had invoked section 14A of the Act read with Rule 8D of the Rules and apportioned the expenditure. The CIT(A) had set aside the disallowance, which view was upturned by the ITAT in the following words: ...Admittedly the assessee had paid total interest of Rs.2.92 crores out of which interest paid on term loan raised for specific purpose totals to Rs.1.70 crores and balance interest paid by the assessee is Rs.1.21 crores. The funds utilized by the assessee being mixed funds and in view of the provisions of Rule 8D(2)(ii) of the Income Tax Rules the disallowance is confirmed at Rs.10,49,851/-, we find no merit in the ad hoc disallowance made by the CIT (Appeals) at Rs.5,00,000/-. Consequently, ground of appeal raised by the Revenue is partly allowed and ground raised by the assessee in cross-objection is allowed... 41 Taking note of the aforesaid finding of fact, the High Court has dismissed the appeal of the assessee observing as under: In the present case, after examining the balance-sheet of the assessee, a finding of fact has been recorded that the funds utilized by the assessee being mixed funds, therefore, the interest paid by the assessee is also an interest on the investments made. Such being a finding of fact, we do not find that any substantial question of law arises for consideration of this Court. | 0[ds]3. Though, it is clear from the plain language of the aforesaid provision that no deduction is to be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act, the effect whereof is that if certain income is earned which is not to be included while computing total income, any 5 expenditure incurred to earn that income is also not allowed as a deduction. It is well known that tax is leviable on the net income. Net income is arrived at after deducting the expenditures incurred in earning that income. Therefore, from the gross income, expenditure incurred to earn that income is allowed as a deduction and thereafter tax is levied on the net income. The purpose behind Section 14A of the Act, by not permitting deduction of the expenditure incurred in relation to income, which does not form part of total income, is to ensure that the assessee does not get double benefit. Once a particular income itself is not to be included in the total income and is exempted from tax, there is no reasonable basis for giving benefit of deduction of the expenditure incurred in earning such an income. For example, income in the form of dividend earned on shares held in a company is not taxable. If a person takes interest bearing loan from the Bank and invests that loan in shares/stocks, dividend earned therefrom is not taxable. Normally, interest paid on the loan would be expenditure incurred for earning dividend income. Such an interest would not be allowed as deduction as it is an expenditure incurred in relation to dividend income which itself is spared from tax net. There is no quarrel upto this extent.26. It would be pertinent to mention that earlier judgment of the same High Court in the case of Dhanuka and Sons v. CIT9 was cited by the Revenue.However, this judgment was distinguished on the ground that, in that case, there was no dispute that part of the income of the assessee from its business was from dividend whereas the assessee was unable to produce any material before the authorities below showing the source from which such shares were acquiredObviously, assessees are banking upon the reasons which prevailed with the High Courts that have taken the view which are favourable to the assessees and the Revenue is relying upon the reasoning given by Delhi High Court as well as Calcutta High Court in Dhanuka and Sons case32. In the first instance, it needs to be recognised that as per section 14A(1) of the Act, deduction of that expenditure is not to be allowed which has been incurred by the assessee in relation to income which does not form part of the total income under this Act. Axiomatically, it is that expenditure alone which has been incurred in relation to the income 33 which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of the total income.33. There is no quarrel in assigning this meaning to section 14A of the Act. In fact, all the High Courts, whether it is the Delhi High Court on the one hand or the Punjab and Haryana High Court on the other hand, have agreed in providing this interpretation to section 14A of the Act. The entire dispute is as to what interpretation is to be given to the words in relation to in the given scenario, viz. where the dividend income on the shares is earned, though the dominant purpose for subscribing in those shares of the investee company was not to earn dividend. We have two scenarios in these sets of appeals. In one group of cases the main purpose for investing in shares was to gain control over the investee company. Other cases are those where the shares of investee company were held by the assessees as stock-in-trade (i.e. as a business activity) and not as investment to earn dividends.We are of the opinion that the dominant purpose for which the investment into shares is made by an assessee may not be relevant. No doubt, the assessee like Maxopp Investment Limited may have made the investment in order to gain control of the investee company. However, that does not appear to be a relevant factor in determining the issue at hand. Fact remains that such dividend income is non-taxable. In this scenario, if expenditure is incurred on earning the dividend income, that much of the expenditure which is attributable to the dividend income has to be disallowed and cannot be treated as business expenditure. Keeping this objective behind Section14A of the Act in mind, the said provision has to be interpreted, particularly, the word in relation to the income that does not form part of total income. Considered in this hue, the principle of apportionment of expenses comes into play as that is the principle which is engrained in Section 14A of the Act. This is so held in Walfort Share and Stock Brokers P Ltd.35. The Delhi High Court, therefore, correctly observed that prior to introduction of Section 14A of the Act, the law was that when an assessee had a composite and indivisible business which had elements of both taxable and non-taxable income, the entire expenditure in respect of said business was deductible and, in such a case, the principle of apportionment of the expenditure relating to the non-taxable income did not apply. The principle of apportionment was made available only where the business was divisible. It is to find a cure to the aforesaid problem that the Legislature has not only inserted Section 14A by the Finance (Amendment) Act, 2001 but also made it retrospective, i.e., 1962 when the Income Tax Act itself came into force. The aforesaid intent was expressed loudly and clearly in the Memorandum explaining the provisions of the Finance Bill, 2001. We, thus, agree with the view taken by the Delhi High Court, and are not inclined to accept the opinion of Punjab & Haryana High Court which went by dominant purpose theory. The aforesaid reasoning would be applicable in cases where 36 shares are held as investment in the investee company, may be for the purpose of having controlling interest therein. On that reasoning, appeals of Maxopp Investment Limited as well as similar cases where shares were purchased by the assessees to have controlling interest in the investee companies have to fail and are, therefore, dismissed.On this specific aspect, CBDT has issued circular No. 18/2015 dated November 02, 2015.37. This Circular has already been reproduced in Para 19 above. This Circular takes note of the judgment of this Court in Nawanshahar case wherein it is held that investments made by a banking concern are part of the business or banking. Therefore, the income arises from such investments is attributable to business of banking falling under the head profits and gains of business and profession. On that basis, the Circular contains the decision of the Board that no appeal would be filed on this ground by the officers of the Department and if the appeals are already filed, they should be withdrawn. A reading of this circular would make it clear that the issue was as to whether income by way of interest on securities shall be chargeable to income tax under the head income from other sources or it is to fall under the head profits and gains of 37 business and profession. The Board, going by the decision of this Court in Nawanshahar case, clarified that it has to be treated as income falling under the head profits and gains of business and profession. The Board also went to the extent of saying that this would not be limited only to co-operative societies/Banks claiming deduction under Section 80P(2)(a)(i) of the Act but would also be applicable to all banks/commercial banks, to which Banking Regulation Act, 1949 applies.38. From this, Punjab and Haryana High Court pointed out that this circular carves out a distinction between stock-in-trade and investment and provides that if the motive behind purchase and sale of shares is to earn profit, then the same would be treated as trading profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter.39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned.40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove.41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO.43. Few appeals are filed by the Revenue against the assessees which pertained to the period prior to the introduction of Rule 8D of the Rules. Here, the case is decided in favour of the assessees also on the ground that Rule 8D of the Rules is prospective in nature and could not have been made applicable in respect of the Assessment Years prior to 2007 when this Rule was inserted. This view has already been upheld by this Court in Civil Appeal No. 2165 of 2012 (Commissioner of Income Tax, Mumbai v. M/s. Essar Teleholdings Ltd. through its Manager), pronounced on January 31, 2018, that the said Rule is prospective in nature. On | 0 | 11,362 | 2,519 | ### Instruction:
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profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter. 39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned. 40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove. 41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO. 42. Civil Appeal No. 1423 of 2015 is filed by M/s. Avon Cycles Limited, Ludhiana, wherein the AO had invoked section 14A of the Act read with Rule 8D of the Rules and apportioned the expenditure. The CIT(A) had set aside the disallowance, which view was upturned by the ITAT in the following words: ...Admittedly the assessee had paid total interest of Rs.2.92 crores out of which interest paid on term loan raised for specific purpose totals to Rs.1.70 crores and balance interest paid by the assessee is Rs.1.21 crores. The funds utilized by the assessee being mixed funds and in view of the provisions of Rule 8D(2)(ii) of the Income Tax Rules the disallowance is confirmed at Rs.10,49,851/-, we find no merit in the ad hoc disallowance made by the CIT (Appeals) at Rs.5,00,000/-. Consequently, ground of appeal raised by the Revenue is partly allowed and ground raised by the assessee in cross-objection is allowed... 41 Taking note of the aforesaid finding of fact, the High Court has dismissed the appeal of the assessee observing as under: In the present case, after examining the balance-sheet of the assessee, a finding of fact has been recorded that the funds utilized by the assessee being mixed funds, therefore, the interest paid by the assessee is also an interest on the investments made. Such being a finding of fact, we do not find that any substantial question of law arises for consideration of this Court.
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is to fall under the head profits and gains of 37 business and profession. The Board, going by the decision of this Court in Nawanshahar case, clarified that it has to be treated as income falling under the head profits and gains of business and profession. The Board also went to the extent of saying that this would not be limited only to co-operative societies/Banks claiming deduction under Section 80P(2)(a)(i) of the Act but would also be applicable to all banks/commercial banks, to which Banking Regulation Act, 1949 applies.38. From this, Punjab and Haryana High Court pointed out that this circular carves out a distinction between stock-in-trade and investment and provides that if the motive behind purchase and sale of shares is to earn profit, then the same would be treated as trading profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter.39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned.40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove.41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO.43. Few appeals are filed by the Revenue against the assessees which pertained to the period prior to the introduction of Rule 8D of the Rules. Here, the case is decided in favour of the assessees also on the ground that Rule 8D of the Rules is prospective in nature and could not have been made applicable in respect of the Assessment Years prior to 2007 when this Rule was inserted. This view has already been upheld by this Court in Civil Appeal No. 2165 of 2012 (Commissioner of Income Tax, Mumbai v. M/s. Essar Teleholdings Ltd. through its Manager), pronounced on January 31, 2018, that the said Rule is prospective in nature. On
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Vitthalbhai Naranbhai Patel Vs. Commissioner of Sales Tax, M.P., Nagpur | Hidayatullah, J. 1. This is an appeal with a certificate under Art. 132 (1) of the Constitution granted by the former High Court at Nagpur. During the course of the hearing, the appellant applied under Article 132 (3) for leave to appeal to this Court on the ground that other questions had been wrongly decided. We shall refer to that petition later. 2. The appellant is the proprietor of a firm called C. P. General Agency, and held a sales tax registration certificate for the period, November 13, 1947 to November 1, 1948. For that period, he filed a return under the Central Provinces and Berar Sales Tax Act, showing a gross turnover of Rs. 73,713-6-0, as sales of goods mentioned in Sch. I of the Act, and Rs. 1,28,923-7-3, as sales of other goods. He also paid an advance tax of Rs. 2,239-6-6. He was assessed on March 17, 1953, by the Assistant Commissioner of Sales Tax. His total turnover was computed at Rs. 13,93,635-10-6, and a total tax of Rs. 44,153-3-6 was assessed. In the return filed by the appellant, he had claimed exemption on sales of bidis amounting to Rs. 12,99,389-9-9 on the ground that they were exported from the taxable territories before the contract for sale was entered into. The case of the appellant for exemption was that he had two godowns for bidis at Ujhani and Haldwani in Uttar Pradesh, which were managed by the Central Bank of India on his behalf, and that the goods were stored at these godowns, and were delivered against orders by the Central Bank of India, who also acted as the appellants bankers. 3. Against the order of assessment, an appeal was filed before the Commissioner. By that time, the Sales Tax Act was amended making it incumbent upon the appellant to deposit the assessed tax as a condition precedent to the admission of the appeal. The appellant did not comply with this requirement of the law, and the appeal was dismissed. 4. The appellant then moved the High Court at Nagpur under Art. 226 of the Constitution for a writ of mandamus compelling the Commissioner to hear and determine the appeal, without the deposit of the assessed tax as required by the amendment. In the grounds which were mentioned in the petition, the appellant had stated that the sales from the godowns in Uttar Pradesh were exempt both by virtue of Explanation to S. 2 (g) of the Sales Tax Act and Art. 286 of the Constitution. The petition however, was for the only relief that the appeal should be ordered to be re-heard. The petition of the appellant was heard with others, in which the constitutional point was in the forefront. The High Court disposed of all the petitions by a common order, and dismissed them, relying upon the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ). It appears that the special point involved in this case was overlooked completely, and nothing was said about the competency of the appeal. It may be mentioned that when the petition was filed in the High Court, the decision of this Court in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ); was already given and was known. 5. When the appellant applied for a certificate to appeal to this Court, he set out the identical grounds which he had relied upon in the original petition. He made the petition under Arts. 132 and 133 of the Constitution, intending apparently to urge all the grounds before this Court. The High Court, however, gave the certificate only under Art. 132 (1), confining the appeal to the matters mentioned in that clause. | 0[ds]This point is not open for argument, in view of the fact that it does not involve an interpretation of the Constitution to which the certificate is limited. An application to urge other grounds could have been made a long time ago, and it would not be proper for us to allow an application to be made in the course of the hearing, which is likely to take the other side by surprise. Even if we were inclined to allow the application, on the record of the appeal before us there is hardly any material to show beyond the argument of counsel that sales or contracts of sale did not take place before the goods had left the taxable territories. There is a faint allusion to it in the assessment order of the Assistant Commissioner, and even the petition does not make sufficient averments to sustain this plea. In view of these reasons, we intimated counsel that we would dismiss the application to urge other grounds7. The question of interpretation of the Constitution hardly arose on the original petition as filed in the High Court. But for the fact that this petition was heard along with other petitions, the High Court need not have gone into a consideration of Art. 286 at all. That point, therefore, does not arise in this appealThat also presents some difficulty to us. We have before us the petition which was made in the High Court, and we cannot allow that petition to be amended. That petition does not mention the dates on which the return was filed, so that we could apply the dictum of this Court in Hoosein Kasam Dadas case, l953 SCR 987 : (AIR 1953 SC 221 )9. The decision in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ), proceeded on the ground that when a lis commences, all rights get crystallised and no clog upon a likely appeal can be put, unless the law was made retrospective expressly or by clear implication. From the record of this case, we cannot say when the lis commenced, and unless it can be proved conclusively that it was before the amendment of the law, the rule in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ), cannot apply. There is no averment that right of appeal had vested, and has been wrongly taken away. | 0 | 707 | 447 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Hidayatullah, J. 1. This is an appeal with a certificate under Art. 132 (1) of the Constitution granted by the former High Court at Nagpur. During the course of the hearing, the appellant applied under Article 132 (3) for leave to appeal to this Court on the ground that other questions had been wrongly decided. We shall refer to that petition later. 2. The appellant is the proprietor of a firm called C. P. General Agency, and held a sales tax registration certificate for the period, November 13, 1947 to November 1, 1948. For that period, he filed a return under the Central Provinces and Berar Sales Tax Act, showing a gross turnover of Rs. 73,713-6-0, as sales of goods mentioned in Sch. I of the Act, and Rs. 1,28,923-7-3, as sales of other goods. He also paid an advance tax of Rs. 2,239-6-6. He was assessed on March 17, 1953, by the Assistant Commissioner of Sales Tax. His total turnover was computed at Rs. 13,93,635-10-6, and a total tax of Rs. 44,153-3-6 was assessed. In the return filed by the appellant, he had claimed exemption on sales of bidis amounting to Rs. 12,99,389-9-9 on the ground that they were exported from the taxable territories before the contract for sale was entered into. The case of the appellant for exemption was that he had two godowns for bidis at Ujhani and Haldwani in Uttar Pradesh, which were managed by the Central Bank of India on his behalf, and that the goods were stored at these godowns, and were delivered against orders by the Central Bank of India, who also acted as the appellants bankers. 3. Against the order of assessment, an appeal was filed before the Commissioner. By that time, the Sales Tax Act was amended making it incumbent upon the appellant to deposit the assessed tax as a condition precedent to the admission of the appeal. The appellant did not comply with this requirement of the law, and the appeal was dismissed. 4. The appellant then moved the High Court at Nagpur under Art. 226 of the Constitution for a writ of mandamus compelling the Commissioner to hear and determine the appeal, without the deposit of the assessed tax as required by the amendment. In the grounds which were mentioned in the petition, the appellant had stated that the sales from the godowns in Uttar Pradesh were exempt both by virtue of Explanation to S. 2 (g) of the Sales Tax Act and Art. 286 of the Constitution. The petition however, was for the only relief that the appeal should be ordered to be re-heard. The petition of the appellant was heard with others, in which the constitutional point was in the forefront. The High Court disposed of all the petitions by a common order, and dismissed them, relying upon the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ). It appears that the special point involved in this case was overlooked completely, and nothing was said about the competency of the appeal. It may be mentioned that when the petition was filed in the High Court, the decision of this Court in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ); was already given and was known. 5. When the appellant applied for a certificate to appeal to this Court, he set out the identical grounds which he had relied upon in the original petition. He made the petition under Arts. 132 and 133 of the Constitution, intending apparently to urge all the grounds before this Court. The High Court, however, gave the certificate only under Art. 132 (1), confining the appeal to the matters mentioned in that clause.
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This point is not open for argument, in view of the fact that it does not involve an interpretation of the Constitution to which the certificate is limited. An application to urge other grounds could have been made a long time ago, and it would not be proper for us to allow an application to be made in the course of the hearing, which is likely to take the other side by surprise. Even if we were inclined to allow the application, on the record of the appeal before us there is hardly any material to show beyond the argument of counsel that sales or contracts of sale did not take place before the goods had left the taxable territories. There is a faint allusion to it in the assessment order of the Assistant Commissioner, and even the petition does not make sufficient averments to sustain this plea. In view of these reasons, we intimated counsel that we would dismiss the application to urge other grounds7. The question of interpretation of the Constitution hardly arose on the original petition as filed in the High Court. But for the fact that this petition was heard along with other petitions, the High Court need not have gone into a consideration of Art. 286 at all. That point, therefore, does not arise in this appealThat also presents some difficulty to us. We have before us the petition which was made in the High Court, and we cannot allow that petition to be amended. That petition does not mention the dates on which the return was filed, so that we could apply the dictum of this Court in Hoosein Kasam Dadas case, l953 SCR 987 : (AIR 1953 SC 221 )9. The decision in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ), proceeded on the ground that when a lis commences, all rights get crystallised and no clog upon a likely appeal can be put, unless the law was made retrospective expressly or by clear implication. From the record of this case, we cannot say when the lis commenced, and unless it can be proved conclusively that it was before the amendment of the law, the rule in Hoosein Kasam Dadas case, 1953 SCR 987 : (AIR 1953 SC 221 ), cannot apply. There is no averment that right of appeal had vested, and has been wrongly taken away.
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National Buildings Construction Corporation Vs. Pritam Singh Gill And Others | period when they were in his employment. Shri Malhotra pointed out that in the reported case there was no clause in the statutory definition including therein for limited purposes certain persons otherwise not within the definition and excluding therefrom certain other categories of persons who would otherwise fall within the definition. This is how the case was sought to be distinguished from the present. The crucial point which requires consideration on the appellants argument is thus confined to the precise scope and meaning of the word "workman" used in Section 33-C (2) in the background of the definition of this word as contained in Section 2 (s). 7. Now, it is noteworthy that Section 2 of the Act, which is the definition section begins, as is usual with most of the definition sections, with the clause, "unless there is anything repugnant in the subject or context". This clearly indicated that it is always a matter for argument whether or not this statutory definition is to apply to the word "workman" as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject-matter. The context and the subject-matter in connection with which the word "workman" is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word "workman" is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the power similar to those of an executing Court so that the workmen concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act an such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy Section 33-C (2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term "workman" as used in Section 33-C (2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employees right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit to speedy remedy under Section 33-C (2) of the Act. 8. We are aware of a conflict of decisions in some High Courts on the interpretation of Section 20 read with Sec. 2 (I) of the Minimum Wages Act, 12 of 1948. This aspect was not canvassed before us and, therefore, we should not be deemed to express any opinion on the correctness or otherwise of either view. We are referring to this aspect only to make it clear that our decision must be confined to the construction of the provisions of the Act and we must not be understood to have expressed any opinion on the construction of the Minimum Wages Act. In the Madras High Court two single Judges have taken divergent views and the Kerala High Court agreed with the view that the employees under the Minimum Wages Act need not be in the employment at the time of their applications under Section 20 of the Minimum Wages Act whereas the Punjab High Court on the other hand agreed with the contrary view of the Madras High Court. The language of Section 20 of the Minimum Wages Act is not completely identical with that of Section 33-C (2) of the Act and the relevant clauses of the definition sections in the two statutes are also somewhat differently worded. Without any further discussion on this aspect we are content to observe that this judgment should not be considered as an expression of opinion on the interpretation of the relevant provisions of the Minimum Wages Act. | 0[ds]5. We now turn to some decisions of the High Courts which directly deal with this point. In Tiruchi-Srirangam Transport Co. (P) Ltd. v. Labour Court Madurai, (1961) 1 Lab L.J. 729=(AIR 1961 Mad 307 ) Ramchandra Ayyar J., repelled a similar contention as was raised before us by Shri Malhotra on behalf of the appellant. In the case cited, one Iswaran was employed as a traffic supervisor in Tiruchi- Srirangam Transport Co., (P) Ltd. His services were terminated in December 1956 under a scheme of retrenchment. Later, disputes were raised between the management and other workers regarding bonus for the years 1955-56 and 1956-57 and a settlement was reached in April, 1958 pursuant to which the management declared additional bonus and one months wage for each of the two years. Iswaran having not been paid anything by the way of bonus though he had worked during those two years applied to the Labour Court for necessary relief under Section 33C (2) of the Act. The Labour Court having granted the relief claimed, the management approached the High Court under Art. 226 of the Constitution questioning the jurisdiction of the Labour Court to entertain Iswarans claim. The High Court repelled this challenge though on an other point relating to the claimants right to benefit under the settlement, the case was remitted back to the Labour Court for a fresh decision. It was observed in that decision that while enacting Section 33-C (2), the Legislature did not intend merely to provide a remedy for the limited class of the persons who are in actual employment on the date of the application under that section. The words "any workman" in Section 33-C (2), according to that decision, would mean workman who would be entitled to benefits conferred under the Act and would necessarily include a discharged workman as well. In Manicka Mudaliar (M) v. Labour Court, Madras, (1961) Lab LJ 592 (Mad), a Division Bench of the Madras High Court, while hearing a writ appeal, from the decision of a learned single Judge of that Court also upheld the competency of a petition under Section 33-C (2) of the Act for arrears of salary and one months salary in lieu of notice, although at the time of the application, the applicant was no longer in service of the employer. Following these Madras decisions a learned single Judge of the Punjab and Haryana High Court in Bachittar Singh v. Central Labour Court, Jullunder, AIR 1969 Punj 187 a Division Bench of the Mysore High Court in Management of Government Soap Factory, Bangalore v. Presiding Officer, Labour Court, Bangalore, AIR 1970 Mys 225 and the Allahabad High Court in U.P. Electric Supply Co., Ltd v. Asstt. Labour Commissioner, Allahabad, (1966) 2 Lab LJ 714 (All) took the same view. In the Allahabad case, however the provision which directly came up for construction was section 6-H of the U.P. Industrial Disputes Act, the language of which was considered to be identical with that of Section 33-C of the Act. Incidentally it may be pointed out that Section 6-H of the U.P. Industrial disputes Act has been held to be identical with Section 33-C of the Act even by this CourtAccording to the appellants submission these decisions have ignored the vital point that the definition of "workman" specifically includes within its fold, only for the purpose of a proceeding under the Act in relation to an industrial dispute, persons who have been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or, whose dismissal, discharge or retrenchment has led to that dispute. Since certain categories of persons are also expressly stated not to be included in this definition the Legislature must according to the argument, be considered to have intended to define this word with exactitude and precision and its scope, therefore, cannot be extended to the dismissed, discharge or retrenched persons strictly for the purposes of the proceedings expressly mentioned in the inclusive clause. The fact that the definition also specifically excludes from its purview four categories of persons employed in an industry who would have otherwise been within the periphery of the definition shows that the legislature intended to be meticulously precise leaving no scope for any intendment extending the literal meaning of the language used to dismissed employees for purposes of other proceedings not specified in Section 33-C (2) of the Act. The definition, said Shri Malhotra, is exhaustive rendering its extension impermissible. The counsel also commented on the recent decision of this Court in AIR 1972 SC 451 (Supra). According to Shri Malhotra this decision does not touch the question whether a dismissed employee can be considered as a workman for the purpose of approaching the Labour Court under Section 33-C (2) of the Act and he emphasised that this case should be considered to be confined to its own facts. The further contention pressed by Shri Malhotra was that the respondents claim raises an industrial dispute and, therefore, it would be more appropriate for him to claim a reference under S. 10 of the Act. This contention being based only on the appellants denial of the claim cannot exclude the applicability of Section 33-C (2). He also made a reference to the decision of this Court in Bennet Coleman and Co. (P) Ltd., v. Punya Priya Das Gupta, (1970) 1 SCR 181 = (AIR 1970 SC 426 ) which was concerned with the working Journalists (conditions of Service) and Miscellaneous Provisions Act, 45 of 1955 and contended that in that decision the definitions of S. 2 (c) and (f) of that Act took within their fold persons who were no longer in the employment of their erstwhile employer against whom their claim was made, provided the claim related to a period when they were in his employment. Shri Malhotra pointed out that in the reported case there was no clause in the statutory definition including therein for limited purposes certain persons otherwise not within the definition and excluding therefrom certain other categories of persons who would otherwise fall within the definition. This is how the case was sought to be distinguished from the present. The crucial point which requires consideration on the appellants argument is thus confined to the precise scope and meaning of the word "workman" used in Section 33-C (2) in the background of the definition of this word as contained in Section 2 (s)7. Now, it is noteworthy that Section 2 of the Act, which is the definition section begins, as is usual with most of the definition sections, with the clause, "unless there is anything repugnant in the subject or context". This clearly indicated that it is always a matter for argument whether or not this statutory definition is to apply to the word "workman" as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject-matter. The context and the subject-matter in connection with which the word "workman" is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word "workman" is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the power similar to those of an executing Court so that the workmen concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act an such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy Section 33-C (2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term "workman" as used in Section 33-C (2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employees right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit to speedy remedy under Section 33-C (2) of the Act8. We are aware of a conflict of decisions in some High Courts on the interpretation of Section 20 read with Sec. 2 (I) of the Minimum Wages Act, 12 of 1948. This aspect was not canvassed before us and, therefore, we should not be deemed to express any opinion on the correctness or otherwise of either view. We are referring to this aspect only to make it clear that our decision must be confined to the construction of the provisions of the Act and we must not be understood to have expressed any opinion on the construction of the Minimum Wages Act. In the Madras High Court two single Judges have taken divergent views and the Kerala High Court agreed with the view that the employees under the Minimum Wages Act need not be in the employment at the time of their applications under Section 20 of the Minimum Wages Act whereas the Punjab High Court on the other hand agreed with the contrary view of the Madras High Court. The language of Section 20 of the Minimum Wages Act is not completely identical with that of Section 33-C (2) of the Act and the relevant clauses of the definition sections in the two statutes are also somewhat differently worded. Without any further discussion on this aspect we are content to observe that this judgment should not be considered as an expression of opinion on the interpretation of the relevant provisions of the Minimum Wages Act. | 0 | 5,258 | 2,167 | ### 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:
period when they were in his employment. Shri Malhotra pointed out that in the reported case there was no clause in the statutory definition including therein for limited purposes certain persons otherwise not within the definition and excluding therefrom certain other categories of persons who would otherwise fall within the definition. This is how the case was sought to be distinguished from the present. The crucial point which requires consideration on the appellants argument is thus confined to the precise scope and meaning of the word "workman" used in Section 33-C (2) in the background of the definition of this word as contained in Section 2 (s). 7. Now, it is noteworthy that Section 2 of the Act, which is the definition section begins, as is usual with most of the definition sections, with the clause, "unless there is anything repugnant in the subject or context". This clearly indicated that it is always a matter for argument whether or not this statutory definition is to apply to the word "workman" as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject-matter. The context and the subject-matter in connection with which the word "workman" is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word "workman" is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the power similar to those of an executing Court so that the workmen concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act an such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy Section 33-C (2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term "workman" as used in Section 33-C (2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employees right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit to speedy remedy under Section 33-C (2) of the Act. 8. We are aware of a conflict of decisions in some High Courts on the interpretation of Section 20 read with Sec. 2 (I) of the Minimum Wages Act, 12 of 1948. This aspect was not canvassed before us and, therefore, we should not be deemed to express any opinion on the correctness or otherwise of either view. We are referring to this aspect only to make it clear that our decision must be confined to the construction of the provisions of the Act and we must not be understood to have expressed any opinion on the construction of the Minimum Wages Act. In the Madras High Court two single Judges have taken divergent views and the Kerala High Court agreed with the view that the employees under the Minimum Wages Act need not be in the employment at the time of their applications under Section 20 of the Minimum Wages Act whereas the Punjab High Court on the other hand agreed with the contrary view of the Madras High Court. The language of Section 20 of the Minimum Wages Act is not completely identical with that of Section 33-C (2) of the Act and the relevant clauses of the definition sections in the two statutes are also somewhat differently worded. Without any further discussion on this aspect we are content to observe that this judgment should not be considered as an expression of opinion on the interpretation of the relevant provisions of the Minimum Wages Act.
### Response:
0
### Explanation:
to a period when they were in his employment. Shri Malhotra pointed out that in the reported case there was no clause in the statutory definition including therein for limited purposes certain persons otherwise not within the definition and excluding therefrom certain other categories of persons who would otherwise fall within the definition. This is how the case was sought to be distinguished from the present. The crucial point which requires consideration on the appellants argument is thus confined to the precise scope and meaning of the word "workman" used in Section 33-C (2) in the background of the definition of this word as contained in Section 2 (s)7. Now, it is noteworthy that Section 2 of the Act, which is the definition section begins, as is usual with most of the definition sections, with the clause, "unless there is anything repugnant in the subject or context". This clearly indicated that it is always a matter for argument whether or not this statutory definition is to apply to the word "workman" as used in the particular clause of the Act which is under consideration, for this word may both be restricted or expanded by its subject-matter. The context and the subject-matter in connection with which the word "workman" is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus construing the word "workman" is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of Section 33-C of the Act. This section was enacted for the purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C of the Act has accordingly been described as a provision which clothes the Labour Court with the power similar to those of an executing Court so that the workmen concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a forum similar to the executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act an such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy Section 33-C (2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term "workman" as used in Section 33-C (2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is no dispute about the employees right which is not denied, he will be entitled to file a suit. Whether or not the right of suit can be claimed by the employee we are not persuaded on the basis of this argument to accept the construction canvassed on behalf of the appellant and deny to a dismissed employee the benefit to speedy remedy under Section 33-C (2) of the Act8. We are aware of a conflict of decisions in some High Courts on the interpretation of Section 20 read with Sec. 2 (I) of the Minimum Wages Act, 12 of 1948. This aspect was not canvassed before us and, therefore, we should not be deemed to express any opinion on the correctness or otherwise of either view. We are referring to this aspect only to make it clear that our decision must be confined to the construction of the provisions of the Act and we must not be understood to have expressed any opinion on the construction of the Minimum Wages Act. In the Madras High Court two single Judges have taken divergent views and the Kerala High Court agreed with the view that the employees under the Minimum Wages Act need not be in the employment at the time of their applications under Section 20 of the Minimum Wages Act whereas the Punjab High Court on the other hand agreed with the contrary view of the Madras High Court. The language of Section 20 of the Minimum Wages Act is not completely identical with that of Section 33-C (2) of the Act and the relevant clauses of the definition sections in the two statutes are also somewhat differently worded. Without any further discussion on this aspect we are content to observe that this judgment should not be considered as an expression of opinion on the interpretation of the relevant provisions of the Minimum Wages Act.
|
Kandla Port Trust Vs. Goodrich Maritime Pvt.Ltd | the cargo. The Lines have two options. They can take back the (loaded) containers to the Port of Origin. Alternatively, the Lines can resume custody of the containers and move such containers to any outside private CFS and arrange for de-stuffing of cargo before taking back the empty container. (In such cases, the responsibilities of the Port Trust as a "bailee" will cease as soon as the Line resumes custody of the containers) there are many approved private CFSs available in the vicinity of a Port, and as per the contract carriage of goods a carrier can also dispose of the goods by auction under certain circumstances. That being so, the lines need not depend only on the ports to take action for release of the containers." Annexed hereto and marked as ANNEXURE: "R-1" is the copy of the aforesaid TAMP Order dated 28th August, 2000. It is submitted that based on the above clarification on Issue No.(V) of the TAMP Order, the KPT used to issue request letters to concerned Line Agent requesting to de-stuff long dwell containers (un-cleared containers) and release the empties. It is also further requested to de-stuff the container in the CWS-CFS and collect the empties, after complying with the required formalities as per TAMP Order dated 19.7.2000. However, in the present case, it seems that the duties on the part of the Line Agent are not performed timely and on getting pressure from their principal, the faults of their own are thrown on Port Trust. In that view of the matter, it is submitted that Bill No. 244362 dated 6.6.2006 issued on Line Agent is in order and is also in consonance with the provisions of the MPT Act." 6. The Division Bench did not avert to the counter affidavits filed on behalf of the appellant and allowed the appeals by simply making a reference to the order passed by this Court dated July 24, 2001 in Civil Appeal No.4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust and observing that there was no reasonable basis for levy of container storage charges or ground rent because letter addressed by respondent No.1 to the Traffic Manager, Kandla Port Trust for permission to remove the containers to de-stuff the cargo was not attended by the concerned authority. 7. Shri P.H. Parekh, learned senior counsel appearing for the appellant relied upon Sections 48, 49, 59, 61 and 62 of Major Port Trusts Act, 1963 (for short, `the 1963 Act), Sections 11, 111(d) and 112 of the Customs Act, 1962 and orders dated 10.11.1999 and 19.7.2000 issued by the Tariff Authority for Major Port Trusts and argued that the Division Bench of the High Court committed serious error by quashing the demand of container storage charges and ground rent by relying upon order dated 24.7.2001 passed by this Court in Civil Appeal No. 4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust ignoring that the containers were confiscated by the Customs officers on the ground that in the garb of Heavy Metal Scrap and Hollow Section Tubes, the consignors and consignees had tried to smuggle used and unused ammunitions in the country. Learned senior counsel submitted that there is no provision in the 1963 Act under which the appellant can de-stuff the goods which are seized/confiscated by the Customs authorities and, therefore, respondent No.1 cannot take advantage of the fact that representations made by it for release of containers after de-stuffing the goods were not entertained. 8. Learned counsel for respondent No.1 supported the impugned order and argued that the Division Bench of the High Court rightly quashed the demand for containers storage charges and ground rent because the appellant failed to take action for release of containers within a reasonable time after de-stuffing the goods. Learned counsel emphasized that respondent No.1 cannot be blamed for attempted import of war material/explosives because its functionaries had no knowledge about the clandestine operation, if any, carried out by the consignors and consignees. 9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers after de-stuffing the goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent. | 1[ds]9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers afterthe goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent. | 1 | 2,560 | 341 | ### 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 cargo. The Lines have two options. They can take back the (loaded) containers to the Port of Origin. Alternatively, the Lines can resume custody of the containers and move such containers to any outside private CFS and arrange for de-stuffing of cargo before taking back the empty container. (In such cases, the responsibilities of the Port Trust as a "bailee" will cease as soon as the Line resumes custody of the containers) there are many approved private CFSs available in the vicinity of a Port, and as per the contract carriage of goods a carrier can also dispose of the goods by auction under certain circumstances. That being so, the lines need not depend only on the ports to take action for release of the containers." Annexed hereto and marked as ANNEXURE: "R-1" is the copy of the aforesaid TAMP Order dated 28th August, 2000. It is submitted that based on the above clarification on Issue No.(V) of the TAMP Order, the KPT used to issue request letters to concerned Line Agent requesting to de-stuff long dwell containers (un-cleared containers) and release the empties. It is also further requested to de-stuff the container in the CWS-CFS and collect the empties, after complying with the required formalities as per TAMP Order dated 19.7.2000. However, in the present case, it seems that the duties on the part of the Line Agent are not performed timely and on getting pressure from their principal, the faults of their own are thrown on Port Trust. In that view of the matter, it is submitted that Bill No. 244362 dated 6.6.2006 issued on Line Agent is in order and is also in consonance with the provisions of the MPT Act." 6. The Division Bench did not avert to the counter affidavits filed on behalf of the appellant and allowed the appeals by simply making a reference to the order passed by this Court dated July 24, 2001 in Civil Appeal No.4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust and observing that there was no reasonable basis for levy of container storage charges or ground rent because letter addressed by respondent No.1 to the Traffic Manager, Kandla Port Trust for permission to remove the containers to de-stuff the cargo was not attended by the concerned authority. 7. Shri P.H. Parekh, learned senior counsel appearing for the appellant relied upon Sections 48, 49, 59, 61 and 62 of Major Port Trusts Act, 1963 (for short, `the 1963 Act), Sections 11, 111(d) and 112 of the Customs Act, 1962 and orders dated 10.11.1999 and 19.7.2000 issued by the Tariff Authority for Major Port Trusts and argued that the Division Bench of the High Court committed serious error by quashing the demand of container storage charges and ground rent by relying upon order dated 24.7.2001 passed by this Court in Civil Appeal No. 4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust ignoring that the containers were confiscated by the Customs officers on the ground that in the garb of Heavy Metal Scrap and Hollow Section Tubes, the consignors and consignees had tried to smuggle used and unused ammunitions in the country. Learned senior counsel submitted that there is no provision in the 1963 Act under which the appellant can de-stuff the goods which are seized/confiscated by the Customs authorities and, therefore, respondent No.1 cannot take advantage of the fact that representations made by it for release of containers after de-stuffing the goods were not entertained. 8. Learned counsel for respondent No.1 supported the impugned order and argued that the Division Bench of the High Court rightly quashed the demand for containers storage charges and ground rent because the appellant failed to take action for release of containers within a reasonable time after de-stuffing the goods. Learned counsel emphasized that respondent No.1 cannot be blamed for attempted import of war material/explosives because its functionaries had no knowledge about the clandestine operation, if any, carried out by the consignors and consignees. 9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers after de-stuffing the goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent.
### Response:
1
### Explanation:
9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers afterthe goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent.
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Calcutta Electric Supply Corporation Vs. Commissioner Of Wealth Tax, West Bengal | circumstance. The only thing relevant for the purpose of the Act is that the assessee should be the owner of the assets in question on the relevant valuation date. The Act does not concern itself with the mode in which those assets were acquired. It is immaterial for the purpose of the Act whether the assessee acquired those assets from his own money or with the assistance of others. The balance-sheet shows those service connections as the assets of the assessee. It was not said that they were the assets of the consumers on the relevant valuation date. The admission in the balance-sheet (profit and loss accounts) is not rebutted by any other evidence. Hence the Wealth-tax Officer was justified in holding that they were assessees assets. The Tribunal was impressed by the fact that if and when the undertaking is sold, the assessee will not get any price for the service connections in view of S. 7A (2) of the Indian Electricity Act, 1910. Sec. 7A provides for the determination of the purchase price on revocation of licence under S. 4. Whenever a licence of a licencee under the Indian Electricity Act is revoked under S. 4, it is open to the State Government to acquire the undertaking itself or to direct the licensee to sell the undertaking to one or the other of the authorities or person designated therein. When a sale in pursuance of such a direction is effected, valuation of the undertaking is made in accordance with Section 7A. Section 7A reads:"7A . (1) Where an undertaking of a licensee, not being a local authority, is sold under sub-section (1) of section 5, the purchase price of the undertaking shall be the market value of the undertaking at the time of purchase or where the undertaking has been delivered before the purch.ase under sub-s- (3) of that section, at the time of the delivery of the undertaking and if there is any difference or dispute regarding such purchase price, the same shall be determined by arbitration.(2) The market value of an undertaking for the purpose of sub-section (1) shall be deemed to be the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him, for the purpose of the undertaking, other than (i) a generating station declared by the licensee not to form part of the undertaking for the purpose of purchase and (ii) service-lines or other capital works or any part thereof which have been constructed at the expense of consumers, due regard being had to the nature and condition for the time being of such lands, buildings, works, materials and plant and the state of repair thereof and to the circumstance that they are in such position as to be ready for immediate working and to the suitability of the same for the purpose of the undertaking, but without any addition in respect of compulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking or of any similar consideration.(3) Where an undertaking of a licensee, being a local authority, is sold under sub-section (1) of Section 5, the purchase price of the undertaking shall be such as the State Government, having regard to the market value of the undertaking at the date of delivery of the undertaking, may determine.(4) Where an undertaking of a licensee is purchased under section 6, the purchase price shall be the value thereof as determined in accordance with the provisions of sub-sections (1) and (2):Provided that there shall be added to such value such percentage, if any not exceeding twenty per centum of that value as may be specified in the license on account of compulsory purchase."9. It is true that in view of S.7A (2) of the Electricity Act, is computing the market value of the undertaking sold under sub-s. (1) of S. 5 of that Act, the value of service lines which had been constructed at the expense of the consumer will not be taken into consideration. The reason for this provision is obvious. It will be the duty of the new licensee to not only maintain and repair those lines but also to replace them when they become unserviceable. But S. 7 of the Electricity Act only deals with sales under S. 5 (1) of the Act. But if a sale is effected under S.8, the licensee shall have the option to dispose of all land, building, works, material and plants belonging to the undertaking in such manner as he may think fit. In such sales, it is open to him to value the service connections put up at the expense of the consumers and add the same in computing the sale price. It is clear from Ss. 5 to 8 of the Electricity Act that the licensee is the owner of the service connections put up at the expense of the consumer. If that is not so, there was no purpose in mentioning in Section 7A that while determining the market value of the undertaking, the value of the service connections shall not be taken into consideration. Further S. 8 would not have permitted the licensee to pocket the value of those service connections. The fact that the value of one or more of the assets of an undertaking will not be taken into consideration in computing the value of an undertaking when sold under compulsion of, law because of some statutory provision does not by itself show that it is not a valuable asset. Section 7 of the Act does not take note of hypothetical possibilities in the matter of valuation of the assets. It merely concerns itself as to what is the true market value of the assets in question on the valuation date. So far as the market value of the asset with which we are concerned in this case there is no difficulty. We have the assessees own admission in its balance sheet. | 0[ds]7. As seen earlier, the Wealth-tax Officer had determined the value of the assets under S. 7 (2). There is no dispute that the assessee is maintaining regular accounts for the business it is carrying on. Therefore it was open to the Wealth-tax Officer, instead of determining separately the value of each asset held by the assessee as a part of its business, to determine the net value of the assets of the business as a whole as on the valuation date having regard to the balance-sheet of such business. This section nowhere says that the Wealth-tax Officer while proceeding under S. 7 (2) is bound to accept every entry in the balance-sheet. What the section permits the Wealth-tax Officer is that instead of separately valuing each asset forming part of the business, he may determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date. In other words S. 7 (2) authorises the Wealth-tax Officer to accept the valuation of the assets of a business as shown in the balance sheet of the company. He is not bound to accept any deduction shown in the balance sheet if he comes to the conclusion that the said deduction was impermissible. Section 7 (2) does not say that the Wealth-tax Officer should accept the balance-sheet as a whole or reject it as a whole. He is merely authorised to accept the value of the assets of the business as shown in the balance-sheet. In the present case, the Wealth-tax Officer has accepted the value of the assets of the business as shown in the balance-sheet. But he has not accepted the fact that the service lines are not owned by the assessee.8. We shall now proceed to consider whether the service lines which were constructed at the, expense of consumers are the assets of the company. In the balance-sheet they are shown as the assets of the company. There was no material before the authorities under the Act to hold that they were not the assets of the company. The fact that those assets were acquired by the company by utilizing the contributions made by the consumers is a wholly irrelevant circumstance. The only thing relevant for the purpose of the Act is that the assessee should be the owner of the assets in question on the relevant valuation date. The Act does not concern itself with the mode in which those assets were acquired. It is immaterial for the purpose of the Act whether the assessee acquired those assets from his own money or with the assistance of others. The balance-sheet shows those service connections as the assets of the assessee. It was not said that they were the assets of the consumers on the relevant valuation date. The admission in the balance-sheet (profit and loss accounts) is not rebutted by any other evidence. Hence the Wealth-tax Officer was justified in holding that they were assessees assets. The Tribunal was impressed by the fact that if and when the undertaking is sold, the assessee will not get any price for the service connections in view of S. 7A (2) ofthe Indian Electricity Act, 1910. Sec. 7A provides for the determination of the purchase price on revocation of licence under S. 4. Whenever a licence of a licencee under the Indian Electricity Act is revoked under S. 4, it is open to the State Government to acquire the undertaking itself or to direct the licensee to sell the undertaking to one or the other of the authorities or person designated therein. When a sale in pursuance of such a direction is effected, valuation of the undertaking is made in accordance with Section 7A.It is true that in view of S.7A (2) of the Electricity Act, is computing the market value of the undertaking sold under sub-s. (1) of S. 5 of that Act, the value of service lines which had been constructed at the expense of the consumer will not be taken into consideration. The reason for this provision is obvious. It will be the duty of the new licensee to not only maintain and repair those lines but also to replace them when they become unserviceable. But S. 7 of the Electricity Act only deals with sales under S. 5 (1) of the Act. But if a sale is effected under S.8, the licensee shall have the option to dispose of all land, building, works, material and plants belonging to the undertaking in such manner as he may think fit. In such sales, it is open to him to value the service connections put up at the expense of the consumers and add the same in computing the sale price. It is clear from Ss. 5 to 8 of the Electricity Act that the licensee is the owner of the service connections put up at the expense of the consumer. If that is not so, there was no purpose in mentioning in Section 7A that while determining the market value of the undertaking, the value of the service connections shall not be taken into consideration. Further S. 8 would not have permitted the licensee to pocket the value of those service connections. The fact that the value of one or more of the assets of an undertaking will not be taken into consideration in computing the value of an undertaking when sold under compulsion of, law because of some statutory provision does not by itself show that it is not a valuable asset. Section 7 of the Act does not take note of hypothetical possibilities in the matter of valuation of the assets. It merely concerns itself as to what is the true market value of the assets in question on the valuation date. So far as the market value of the asset with which we are concerned in this case there is no difficulty. We have the assessees own admission in its balance sheet. | 0 | 2,516 | 1,081 | ### Instruction:
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circumstance. The only thing relevant for the purpose of the Act is that the assessee should be the owner of the assets in question on the relevant valuation date. The Act does not concern itself with the mode in which those assets were acquired. It is immaterial for the purpose of the Act whether the assessee acquired those assets from his own money or with the assistance of others. The balance-sheet shows those service connections as the assets of the assessee. It was not said that they were the assets of the consumers on the relevant valuation date. The admission in the balance-sheet (profit and loss accounts) is not rebutted by any other evidence. Hence the Wealth-tax Officer was justified in holding that they were assessees assets. The Tribunal was impressed by the fact that if and when the undertaking is sold, the assessee will not get any price for the service connections in view of S. 7A (2) of the Indian Electricity Act, 1910. Sec. 7A provides for the determination of the purchase price on revocation of licence under S. 4. Whenever a licence of a licencee under the Indian Electricity Act is revoked under S. 4, it is open to the State Government to acquire the undertaking itself or to direct the licensee to sell the undertaking to one or the other of the authorities or person designated therein. When a sale in pursuance of such a direction is effected, valuation of the undertaking is made in accordance with Section 7A. Section 7A reads:"7A . (1) Where an undertaking of a licensee, not being a local authority, is sold under sub-section (1) of section 5, the purchase price of the undertaking shall be the market value of the undertaking at the time of purchase or where the undertaking has been delivered before the purch.ase under sub-s- (3) of that section, at the time of the delivery of the undertaking and if there is any difference or dispute regarding such purchase price, the same shall be determined by arbitration.(2) The market value of an undertaking for the purpose of sub-section (1) shall be deemed to be the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him, for the purpose of the undertaking, other than (i) a generating station declared by the licensee not to form part of the undertaking for the purpose of purchase and (ii) service-lines or other capital works or any part thereof which have been constructed at the expense of consumers, due regard being had to the nature and condition for the time being of such lands, buildings, works, materials and plant and the state of repair thereof and to the circumstance that they are in such position as to be ready for immediate working and to the suitability of the same for the purpose of the undertaking, but without any addition in respect of compulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking or of any similar consideration.(3) Where an undertaking of a licensee, being a local authority, is sold under sub-section (1) of Section 5, the purchase price of the undertaking shall be such as the State Government, having regard to the market value of the undertaking at the date of delivery of the undertaking, may determine.(4) Where an undertaking of a licensee is purchased under section 6, the purchase price shall be the value thereof as determined in accordance with the provisions of sub-sections (1) and (2):Provided that there shall be added to such value such percentage, if any not exceeding twenty per centum of that value as may be specified in the license on account of compulsory purchase."9. It is true that in view of S.7A (2) of the Electricity Act, is computing the market value of the undertaking sold under sub-s. (1) of S. 5 of that Act, the value of service lines which had been constructed at the expense of the consumer will not be taken into consideration. The reason for this provision is obvious. It will be the duty of the new licensee to not only maintain and repair those lines but also to replace them when they become unserviceable. But S. 7 of the Electricity Act only deals with sales under S. 5 (1) of the Act. But if a sale is effected under S.8, the licensee shall have the option to dispose of all land, building, works, material and plants belonging to the undertaking in such manner as he may think fit. In such sales, it is open to him to value the service connections put up at the expense of the consumers and add the same in computing the sale price. It is clear from Ss. 5 to 8 of the Electricity Act that the licensee is the owner of the service connections put up at the expense of the consumer. If that is not so, there was no purpose in mentioning in Section 7A that while determining the market value of the undertaking, the value of the service connections shall not be taken into consideration. Further S. 8 would not have permitted the licensee to pocket the value of those service connections. The fact that the value of one or more of the assets of an undertaking will not be taken into consideration in computing the value of an undertaking when sold under compulsion of, law because of some statutory provision does not by itself show that it is not a valuable asset. Section 7 of the Act does not take note of hypothetical possibilities in the matter of valuation of the assets. It merely concerns itself as to what is the true market value of the assets in question on the valuation date. So far as the market value of the asset with which we are concerned in this case there is no difficulty. We have the assessees own admission in its balance sheet.
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7. As seen earlier, the Wealth-tax Officer had determined the value of the assets under S. 7 (2). There is no dispute that the assessee is maintaining regular accounts for the business it is carrying on. Therefore it was open to the Wealth-tax Officer, instead of determining separately the value of each asset held by the assessee as a part of its business, to determine the net value of the assets of the business as a whole as on the valuation date having regard to the balance-sheet of such business. This section nowhere says that the Wealth-tax Officer while proceeding under S. 7 (2) is bound to accept every entry in the balance-sheet. What the section permits the Wealth-tax Officer is that instead of separately valuing each asset forming part of the business, he may determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date. In other words S. 7 (2) authorises the Wealth-tax Officer to accept the valuation of the assets of a business as shown in the balance sheet of the company. He is not bound to accept any deduction shown in the balance sheet if he comes to the conclusion that the said deduction was impermissible. Section 7 (2) does not say that the Wealth-tax Officer should accept the balance-sheet as a whole or reject it as a whole. He is merely authorised to accept the value of the assets of the business as shown in the balance-sheet. In the present case, the Wealth-tax Officer has accepted the value of the assets of the business as shown in the balance-sheet. But he has not accepted the fact that the service lines are not owned by the assessee.8. We shall now proceed to consider whether the service lines which were constructed at the, expense of consumers are the assets of the company. In the balance-sheet they are shown as the assets of the company. There was no material before the authorities under the Act to hold that they were not the assets of the company. The fact that those assets were acquired by the company by utilizing the contributions made by the consumers is a wholly irrelevant circumstance. The only thing relevant for the purpose of the Act is that the assessee should be the owner of the assets in question on the relevant valuation date. The Act does not concern itself with the mode in which those assets were acquired. It is immaterial for the purpose of the Act whether the assessee acquired those assets from his own money or with the assistance of others. The balance-sheet shows those service connections as the assets of the assessee. It was not said that they were the assets of the consumers on the relevant valuation date. The admission in the balance-sheet (profit and loss accounts) is not rebutted by any other evidence. Hence the Wealth-tax Officer was justified in holding that they were assessees assets. The Tribunal was impressed by the fact that if and when the undertaking is sold, the assessee will not get any price for the service connections in view of S. 7A (2) ofthe Indian Electricity Act, 1910. Sec. 7A provides for the determination of the purchase price on revocation of licence under S. 4. Whenever a licence of a licencee under the Indian Electricity Act is revoked under S. 4, it is open to the State Government to acquire the undertaking itself or to direct the licensee to sell the undertaking to one or the other of the authorities or person designated therein. When a sale in pursuance of such a direction is effected, valuation of the undertaking is made in accordance with Section 7A.It is true that in view of S.7A (2) of the Electricity Act, is computing the market value of the undertaking sold under sub-s. (1) of S. 5 of that Act, the value of service lines which had been constructed at the expense of the consumer will not be taken into consideration. The reason for this provision is obvious. It will be the duty of the new licensee to not only maintain and repair those lines but also to replace them when they become unserviceable. But S. 7 of the Electricity Act only deals with sales under S. 5 (1) of the Act. But if a sale is effected under S.8, the licensee shall have the option to dispose of all land, building, works, material and plants belonging to the undertaking in such manner as he may think fit. In such sales, it is open to him to value the service connections put up at the expense of the consumers and add the same in computing the sale price. It is clear from Ss. 5 to 8 of the Electricity Act that the licensee is the owner of the service connections put up at the expense of the consumer. If that is not so, there was no purpose in mentioning in Section 7A that while determining the market value of the undertaking, the value of the service connections shall not be taken into consideration. Further S. 8 would not have permitted the licensee to pocket the value of those service connections. The fact that the value of one or more of the assets of an undertaking will not be taken into consideration in computing the value of an undertaking when sold under compulsion of, law because of some statutory provision does not by itself show that it is not a valuable asset. Section 7 of the Act does not take note of hypothetical possibilities in the matter of valuation of the assets. It merely concerns itself as to what is the true market value of the assets in question on the valuation date. So far as the market value of the asset with which we are concerned in this case there is no difficulty. We have the assessees own admission in its balance sheet.
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Himatsingka Timber Company Limited Vs. State of Orissa | under which the sale was to be tax-free or not tax-free. He pointed out that the Legislature had granted exemption from tax to sales between one registered dealer and another registered dealer on the latters certificate that the goods were to be used either for resale or for manufacture but had enacted that if the purchasing registered dealer made a breach of the declaration in his certificate the first sale was to be taxable and that this was what had happened. He upheld the tax. The company made an application under section 23(1) of the Orissa Sales Tax Act asking for a reference of seven questions of law for the determination of the High Court. The Member, Board of Revenue, declined to make a reference. It appears that at the time of the argument the company reduced the questions to five which may be set out below :"(1) Whether on the facts and circumstances of the case, the purchases which occasioned the export outside the State of Orissa, came within the constitutional prohibition contained in Article 286 of the Constitution of India;(2) Whether on the admitted facts that the goods in question were sold and delivered outside the State of Orissa for consumption therein it is within the legislative competency of the State Legislature to do the same;(3) Whether on the facts and circumstances of the case the proviso to sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Orissa Sales Tax Act, 1947, comes within the powers conferred by entry 54 of List II of the Seventh Schedule to the Constitution of India and is intra vires of the State Legislature;(4) Whether the imposition of liability on the appellant-purchaser is within the ambit and scope of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947);(5) Whether the proviso to sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) is unconstitutional and void, as offending Article 286 of the Constitution of India."The company then made an application in the High Court for calling for a reference but the High Court rejected the application in view of the decision in the case from Orissa cited earlier.5. At the hearing before us Mr. S. T. Desai conceded that questions 1, 2, 3 and 5 were not open to him as a result of the decision in Endupuri Narasimhams case ([1962] 1 S.C.R. 314; 12 S.T.C. 282.). He confined his arguments to the fourth question which he said arose from the decisions of the Tribunals. That is so general that it can be said to arise in every case. He contended on the strength of the terms of the contract produced by him that property in the sleepers passed to the Sleeper Control Officer in the State of Orissa itself and that as the goods were actually resold in the State they were not liable to tax because the company had complied with the certificate issued by it. This contention was not raised before and is a departure from the earlier stand of the company that the local purchases were in the course of inter-State trade. That argument could only be raised if the property in the goods passed outside the State. There is thus no finding that property in the sleepers or timber passed in the State of Orissa. It is too late now to plead facts. The result is fairly obvious. What is being sought to be taxed is not the sale to the Sleeper Control Officer but the earlier sale to the company by the local dealers which was tax-free as between one registered dealer and another. The first sale was independent of the sale to the Sleeper Control Officer as it was not in the course of inter-State trade and it could be taxed and the law imposing a tax on such a sale was not also ultra vires. The only question in this case was whether the certificate which the appellant-company gave to the local dealers was complied with or not or whether the proviso to section 5(2)(a)(ii) quoted above applied. The company had obtained the sleepers and the timber tax-free by reason of its certificate that they were from resale in the State of Orissa. The company did not sell them but exported them. If there was no sale in the State the company was liable to sales tax on the first sale under the said proviso by reason of the breach of the certificate.Mr. Desai compared section 5(2)(a)(ii) as enacted by the 1950 amendment with that enacted in 1951 which came into force from November 25, 1951. He pointed out that the words "in Orissa" were added in the operative part after the quarter involved in this case and, therefore, the export of the sleepers and timber outside the State did not affect the company as prior to the 1951 amendment exemption was available if the goods were for resale irrespective of the place of sale. This is not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment. This is now settled by a series of decisions the last being Civil Appeal No. 534 of 964 (Modi Spinning & Weaving Mills Co. Ltd. v. The State of Punjab and Others (Since reported at [1965] 16 S.T.C. 310.)) decided by this Court on October 5, 1964.6. In our opinion, the High Court was right in thinking that in view of the rulings referred to by it no question of law arose in this case and in declining to call for a reference and we accordingly dismiss the appeal with costs. | 0[ds]This contention was not raised before and is a departure from the earlier stand of the company that the local purchases were in the course of inter-State trade. That argument could only be raised if the property in the goods passed outside the State. There is thus no finding that property in the sleepers or timber passed in the State of Orissa. It is too late now to plead facts. The result is fairly obvious. What is being sought to be taxed is not the sale to the Sleeper Control Officer but the earlier sale to the company by the local dealers which was tax-free as between one registered dealer and another. The first sale was independent of the sale to the Sleeper Control Officer as it was not in the course of inter-State trade and it could be taxed and the law imposing a tax on such a sale was not also ultracompany had obtained the sleepers and the timber tax-free by reason of its certificate that they were from resale in the State of Orissa. The company did not sell them but exported them. If there was no sale in the State the company was liable to sales tax on the first sale under the said proviso by reason of the breach of theis not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment. This is now settled by a series of decisions the last being Civil Appeal No. 534 of 964 (Modi Spinning & Weaving Mills Co. Ltd. v. The State of Punjab and Others (Since reported at [1965] 16 S.T.C. 310.)) decided by this Court on October 5, 1964.6. In our opinion, the High Court was right in thinking that in view of the rulings referred to by it no question of law arose in this case and in declining to call for a reference and we accordingly dismiss the appeal with costs. | 0 | 2,303 | 412 | ### Instruction:
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under which the sale was to be tax-free or not tax-free. He pointed out that the Legislature had granted exemption from tax to sales between one registered dealer and another registered dealer on the latters certificate that the goods were to be used either for resale or for manufacture but had enacted that if the purchasing registered dealer made a breach of the declaration in his certificate the first sale was to be taxable and that this was what had happened. He upheld the tax. The company made an application under section 23(1) of the Orissa Sales Tax Act asking for a reference of seven questions of law for the determination of the High Court. The Member, Board of Revenue, declined to make a reference. It appears that at the time of the argument the company reduced the questions to five which may be set out below :"(1) Whether on the facts and circumstances of the case, the purchases which occasioned the export outside the State of Orissa, came within the constitutional prohibition contained in Article 286 of the Constitution of India;(2) Whether on the admitted facts that the goods in question were sold and delivered outside the State of Orissa for consumption therein it is within the legislative competency of the State Legislature to do the same;(3) Whether on the facts and circumstances of the case the proviso to sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Orissa Sales Tax Act, 1947, comes within the powers conferred by entry 54 of List II of the Seventh Schedule to the Constitution of India and is intra vires of the State Legislature;(4) Whether the imposition of liability on the appellant-purchaser is within the ambit and scope of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947);(5) Whether the proviso to sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) is unconstitutional and void, as offending Article 286 of the Constitution of India."The company then made an application in the High Court for calling for a reference but the High Court rejected the application in view of the decision in the case from Orissa cited earlier.5. At the hearing before us Mr. S. T. Desai conceded that questions 1, 2, 3 and 5 were not open to him as a result of the decision in Endupuri Narasimhams case ([1962] 1 S.C.R. 314; 12 S.T.C. 282.). He confined his arguments to the fourth question which he said arose from the decisions of the Tribunals. That is so general that it can be said to arise in every case. He contended on the strength of the terms of the contract produced by him that property in the sleepers passed to the Sleeper Control Officer in the State of Orissa itself and that as the goods were actually resold in the State they were not liable to tax because the company had complied with the certificate issued by it. This contention was not raised before and is a departure from the earlier stand of the company that the local purchases were in the course of inter-State trade. That argument could only be raised if the property in the goods passed outside the State. There is thus no finding that property in the sleepers or timber passed in the State of Orissa. It is too late now to plead facts. The result is fairly obvious. What is being sought to be taxed is not the sale to the Sleeper Control Officer but the earlier sale to the company by the local dealers which was tax-free as between one registered dealer and another. The first sale was independent of the sale to the Sleeper Control Officer as it was not in the course of inter-State trade and it could be taxed and the law imposing a tax on such a sale was not also ultra vires. The only question in this case was whether the certificate which the appellant-company gave to the local dealers was complied with or not or whether the proviso to section 5(2)(a)(ii) quoted above applied. The company had obtained the sleepers and the timber tax-free by reason of its certificate that they were from resale in the State of Orissa. The company did not sell them but exported them. If there was no sale in the State the company was liable to sales tax on the first sale under the said proviso by reason of the breach of the certificate.Mr. Desai compared section 5(2)(a)(ii) as enacted by the 1950 amendment with that enacted in 1951 which came into force from November 25, 1951. He pointed out that the words "in Orissa" were added in the operative part after the quarter involved in this case and, therefore, the export of the sleepers and timber outside the State did not affect the company as prior to the 1951 amendment exemption was available if the goods were for resale irrespective of the place of sale. This is not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment. This is now settled by a series of decisions the last being Civil Appeal No. 534 of 964 (Modi Spinning & Weaving Mills Co. Ltd. v. The State of Punjab and Others (Since reported at [1965] 16 S.T.C. 310.)) decided by this Court on October 5, 1964.6. In our opinion, the High Court was right in thinking that in view of the rulings referred to by it no question of law arose in this case and in declining to call for a reference and we accordingly dismiss the appeal with costs.
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### Explanation:
This contention was not raised before and is a departure from the earlier stand of the company that the local purchases were in the course of inter-State trade. That argument could only be raised if the property in the goods passed outside the State. There is thus no finding that property in the sleepers or timber passed in the State of Orissa. It is too late now to plead facts. The result is fairly obvious. What is being sought to be taxed is not the sale to the Sleeper Control Officer but the earlier sale to the company by the local dealers which was tax-free as between one registered dealer and another. The first sale was independent of the sale to the Sleeper Control Officer as it was not in the course of inter-State trade and it could be taxed and the law imposing a tax on such a sale was not also ultracompany had obtained the sleepers and the timber tax-free by reason of its certificate that they were from resale in the State of Orissa. The company did not sell them but exported them. If there was no sale in the State the company was liable to sales tax on the first sale under the said proviso by reason of the breach of theis not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment. This is now settled by a series of decisions the last being Civil Appeal No. 534 of 964 (Modi Spinning & Weaving Mills Co. Ltd. v. The State of Punjab and Others (Since reported at [1965] 16 S.T.C. 310.)) decided by this Court on October 5, 1964.6. In our opinion, the High Court was right in thinking that in view of the rulings referred to by it no question of law arose in this case and in declining to call for a reference and we accordingly dismiss the appeal with costs.
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Agricultural Market Committee Vs. Shalimar Chemical Works Ltd | contract is made and it is immaterial whether the time of payment of the price or the time of delivery of goods, or both, is postponed. * 36. We may, before analysing the provisions of Sections 19 and 20, observe that the Indian Sale of Goods Act is based largely upon the English and American Acts. Under these Acts, namely, the English Sale of Goods Act, the American Uniform Sales Act and the Indian Sale of Goods Act, the relevant factor for determining where the sale takes place, is the intention of the parties. A contract of sale, like any other contract, is a consensual act inasmuch as parties are at liberty to settle, amongst themselves, any terms they may choose 37. Section 19 attempts to give effect to the elementary principle of the Law of Contract that the parties may fix the time when the property in the goods shall be treated to have passed. It may be the time of delivery, or the time of payment of price or even the time of the making of contract. It all depends upon the intention of the parties. It is, therefore, the duty of the court to ascertain the intention of the parties and in doing so, they have to be guided by the principles laid down in Section 19(2) which provides that for ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case 38. Section 20 indicates that in case of unconditional contract of sale in respect of specified goods in a deliverable state, the property in the goods passes to the buyer at such time as the parties intend it to be transferred. Section 19(3) provides that Section 20 to 24 contain the rules for ascertaining the intention of the parties as to the time at which the property in the goods shall be treated to have passed to the buyer. Both Sections 19 and 20 apply to the sale of specific or ascertained goods 39. Section 20, which contains the first rule for ascertaining the intention of the parties, provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made. This indicates that as soon as a contract is made in respect of specific goods which are in a deliverable state, the title in the goods passes to the purchaser. The passing of the title is not dependent upon the payment of price or the time of delivery of the goods. If the time for payment of price or the time for delivery of goods, or both, is postponed, it would not affect the passing of the title in the goods so purchased 40. In order that Section 20 is attracted, two conditions have to be fulfilled : (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable immediately and it is at this stage that it has to be seen whether there is anything either in the terms of the contract or in the conduct of the parties or in the circumstances of the case which indicates a contrary intention. This exercise has to be done to give effect to the opening words, namely, Unless a different intention appears occurring in Section 19(3). In Hoe Kim Seing v. Maung Ba Chit 1935 AIR(PC) 182 : 62 IA 242 : 39 CWN 1217 ] it was held that intention of the parties was the decisive factor as to when the property in goods passes to the purchaser. If the contract is silent, intention has to be gathered from the conduct and circumstances of the case 41. This Court in Consolidated Coffee Ltd. v. Coffee Board has held that in an auction-sale of chattels, property passes to the purchaser on the acceptance of his bid. This occurs not because of Section 64(2) but because of the rule contained in Section 20 42. In the instant case, the goods which were the subject-matter of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent, the seller in the State of Kerala, loaded the goods on the lorry and despatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being despatched at the risk of the respondent. The respondent had also obtained insurance of the goods and had paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the bank or payment of price through the bank at Hyderabad were immaterial, inasmuch as the property in the goods had already passed at Kerala and it was not dependent upon the payment of price or the delivery of goods to the respondent 43. We are in full agreement with the view expressed by the High Court and are also of the opinion that having regard to the evidence on record which indicated that on the order placed by the respondent, the stocks were loaded into the trucks for despatch to Hyderabad with the clear stipulation that the despatch was at the risk of the purchaser and that the seller had no liability with regard to any future losses and that the stock was insured and the insurance premium was paid by the respondent, the sale took place in the State of Kerala and not at Hyderabad | 0[ds]42. In the instant case, the goods which were ther of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent, the seller in the State of Kerala, loaded the goods on the lorry and despatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being despatched at the risk of the respondent. The respondent had also obtained insurance of the goods and had paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the bank or payment of price through the bank at Hyderabad were immaterial, inasmuch as the property in the goods had already passed at Kerala and it was not dependent upon the payment of price or the delivery of goods to the respondent43. We are in full agreement with the view expressed by the High Court and are also of the opinion that having regard to the evidence on record which indicated that on the order placed by the respondent, the stocks were loaded into the trucks for despatch to Hyderabad with the clear stipulation that the despatch was at the risk of the purchaser and that the seller had no liability with regard to any future losses and that the stock was insured and the insurance premium was paid by the respondent, the sale took place in the State of Kerala and not at Hyderabad28. The Government to whom the power to make rules was given under Section 33 and the committee to whom power to makes was given under Section 34 widened the scope of presumption by providing further that if a notified agricultural produce is weighed, measured or counted within the notified area, it shall be deemed to have been sold or purchased in that area. The creation of legal fiction is thus beyond the legislative policy. Such legal fiction could be created only by the legislature and not by a delegate in exercise of theg power. We are, therefore, in full agreement with the High Court that Rule 74(2) andw 24(5) are beyond the scope of the Act and, therefore, ultra vires. The reliance placed by the assessing authority as also by the appellate and revisional authority on these provisions was wholly misplaced and they are not justified in holding, merely on the basis of weighment of copra within the notified area committee that the transaction of sale took place in that market area27. Applying the above principles to the instant case, it will be seen that the market fee can be levied under the Act only on the sales and purchase of notified agricultural produce within the notified area. Explanation I to Section 12 creates a legal fiction and provides that if any notified agricultural produce is taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. The presumption is a rebuttable presumption and can be shown to be not correct. The policy in enacting this provision is only to cover such transactions of sale and purchase for which direct evidence may not be available. Since a notified agricultural produce can be sold only within the notified market area, and, that too, by a trader having a licence issued to him by the committee, it is obvious that if such commodity is moved out of the notified area, it would mean either that it has been sold or purchased. Otherwise, there would be no occasion to move such commodity out of the notified market area. The legal fiction was thus limited to the moving of the commodity from within the market area to a place outside the market area26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to taxing statutes. The effect of these principles is that the delegate which has been authorised to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act | 0 | 5,775 | 909 | ### 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:
contract is made and it is immaterial whether the time of payment of the price or the time of delivery of goods, or both, is postponed. * 36. We may, before analysing the provisions of Sections 19 and 20, observe that the Indian Sale of Goods Act is based largely upon the English and American Acts. Under these Acts, namely, the English Sale of Goods Act, the American Uniform Sales Act and the Indian Sale of Goods Act, the relevant factor for determining where the sale takes place, is the intention of the parties. A contract of sale, like any other contract, is a consensual act inasmuch as parties are at liberty to settle, amongst themselves, any terms they may choose 37. Section 19 attempts to give effect to the elementary principle of the Law of Contract that the parties may fix the time when the property in the goods shall be treated to have passed. It may be the time of delivery, or the time of payment of price or even the time of the making of contract. It all depends upon the intention of the parties. It is, therefore, the duty of the court to ascertain the intention of the parties and in doing so, they have to be guided by the principles laid down in Section 19(2) which provides that for ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case 38. Section 20 indicates that in case of unconditional contract of sale in respect of specified goods in a deliverable state, the property in the goods passes to the buyer at such time as the parties intend it to be transferred. Section 19(3) provides that Section 20 to 24 contain the rules for ascertaining the intention of the parties as to the time at which the property in the goods shall be treated to have passed to the buyer. Both Sections 19 and 20 apply to the sale of specific or ascertained goods 39. Section 20, which contains the first rule for ascertaining the intention of the parties, provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made. This indicates that as soon as a contract is made in respect of specific goods which are in a deliverable state, the title in the goods passes to the purchaser. The passing of the title is not dependent upon the payment of price or the time of delivery of the goods. If the time for payment of price or the time for delivery of goods, or both, is postponed, it would not affect the passing of the title in the goods so purchased 40. In order that Section 20 is attracted, two conditions have to be fulfilled : (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable immediately and it is at this stage that it has to be seen whether there is anything either in the terms of the contract or in the conduct of the parties or in the circumstances of the case which indicates a contrary intention. This exercise has to be done to give effect to the opening words, namely, Unless a different intention appears occurring in Section 19(3). In Hoe Kim Seing v. Maung Ba Chit 1935 AIR(PC) 182 : 62 IA 242 : 39 CWN 1217 ] it was held that intention of the parties was the decisive factor as to when the property in goods passes to the purchaser. If the contract is silent, intention has to be gathered from the conduct and circumstances of the case 41. This Court in Consolidated Coffee Ltd. v. Coffee Board has held that in an auction-sale of chattels, property passes to the purchaser on the acceptance of his bid. This occurs not because of Section 64(2) but because of the rule contained in Section 20 42. In the instant case, the goods which were the subject-matter of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent, the seller in the State of Kerala, loaded the goods on the lorry and despatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being despatched at the risk of the respondent. The respondent had also obtained insurance of the goods and had paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the bank or payment of price through the bank at Hyderabad were immaterial, inasmuch as the property in the goods had already passed at Kerala and it was not dependent upon the payment of price or the delivery of goods to the respondent 43. We are in full agreement with the view expressed by the High Court and are also of the opinion that having regard to the evidence on record which indicated that on the order placed by the respondent, the stocks were loaded into the trucks for despatch to Hyderabad with the clear stipulation that the despatch was at the risk of the purchaser and that the seller had no liability with regard to any future losses and that the stock was insured and the insurance premium was paid by the respondent, the sale took place in the State of Kerala and not at Hyderabad
### Response:
0
### Explanation:
42. In the instant case, the goods which were ther of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent, the seller in the State of Kerala, loaded the goods on the lorry and despatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being despatched at the risk of the respondent. The respondent had also obtained insurance of the goods and had paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the bank or payment of price through the bank at Hyderabad were immaterial, inasmuch as the property in the goods had already passed at Kerala and it was not dependent upon the payment of price or the delivery of goods to the respondent43. We are in full agreement with the view expressed by the High Court and are also of the opinion that having regard to the evidence on record which indicated that on the order placed by the respondent, the stocks were loaded into the trucks for despatch to Hyderabad with the clear stipulation that the despatch was at the risk of the purchaser and that the seller had no liability with regard to any future losses and that the stock was insured and the insurance premium was paid by the respondent, the sale took place in the State of Kerala and not at Hyderabad28. The Government to whom the power to make rules was given under Section 33 and the committee to whom power to makes was given under Section 34 widened the scope of presumption by providing further that if a notified agricultural produce is weighed, measured or counted within the notified area, it shall be deemed to have been sold or purchased in that area. The creation of legal fiction is thus beyond the legislative policy. Such legal fiction could be created only by the legislature and not by a delegate in exercise of theg power. We are, therefore, in full agreement with the High Court that Rule 74(2) andw 24(5) are beyond the scope of the Act and, therefore, ultra vires. The reliance placed by the assessing authority as also by the appellate and revisional authority on these provisions was wholly misplaced and they are not justified in holding, merely on the basis of weighment of copra within the notified area committee that the transaction of sale took place in that market area27. Applying the above principles to the instant case, it will be seen that the market fee can be levied under the Act only on the sales and purchase of notified agricultural produce within the notified area. Explanation I to Section 12 creates a legal fiction and provides that if any notified agricultural produce is taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. The presumption is a rebuttable presumption and can be shown to be not correct. The policy in enacting this provision is only to cover such transactions of sale and purchase for which direct evidence may not be available. Since a notified agricultural produce can be sold only within the notified market area, and, that too, by a trader having a licence issued to him by the committee, it is obvious that if such commodity is moved out of the notified area, it would mean either that it has been sold or purchased. Otherwise, there would be no occasion to move such commodity out of the notified market area. The legal fiction was thus limited to the moving of the commodity from within the market area to a place outside the market area26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to taxing statutes. The effect of these principles is that the delegate which has been authorised to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act
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Tata Oil Mills Company Limited Vs. K.V. Gopalan & Others | provision, the Inspector declared certain holidays for the year 1959. Not satisfied with the decision of the Inspector, one of the appellants employees Mr. Baskara Menon filed a writ petition in the Kerala High Court under Art. 226 of the Constitution challenging the validity of the Inspectors decision. In that writ petition, the question about the construction of S. 3 of the Act was agitated. In the result, the High Court held that the complaint made by the petitioner against the validity of the decision of the Inspector was not well founded, and so, the writ petition was dismissed.6. In 1962, the appellant followed the same procedure and got a decision as to the festival holidays from the Inspector and declared that the said holidays would be observed as paid holidays in the year. At this time, certain industrial disputes were pending between the appellant and its employees belonging both to monthly and daily-rated categories before the Industrial Tribunal at Ernakulkam. The respondents felt that the declaration of the holidays made by the appellant for the year 1962 amounted to a contravention of S. 33 of the Industrial Dispute Act, and so they filed the two present complaints before the Industrial Tribunal under S. 33A of the said Act. That, in brief, is the genesis of the present complaints.7. We have already noticed the provisions of S. 3 of the Act. The contention raised by the respondents before the Tribunal was that the statutory provision as to 7 paid holidays prescribes the minimum number of holidays which the employer has to give to his employees. This provision, according to the respondents, does not override or abrogate the existing arrangement as to paid holidays. In regard to paid holidays which are common to S. 3 and the present arrangement, they would, of course, have to be treated as paid holidays, but the four other festival holidays which the Inspector decides from year to year would be in addition to the holidays which the appellant is bound to give to the respondents under the existing arrangement, and since the appellant has limited the number of paid holidays to 7 for the year 1962, it has acted contrary to the terms of employment evidenced by the existing arrangement as to paid holidays and that constitutes the violation of S. 33 of the Industrial Dispute Act. This contention has been upheld by the Tribunal; and Mr. Pai argues that the view taken by the Tribunal is plainly inconsistent with the true scope and effect of S. 3 read with S. 11 of the Act.8.That takes us to S. 11 of the Act, because this section has to be read along with S. 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. Section 11 reads thus:-"Rights and privileges under other laws, etc., not affected-Nothing contained in this Act shall adversely affect any rights or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act".This section gives an option to the employees; they can choose to have the paid holidays either as prescribed by S. 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. That is the direction of S. 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by S. 3 because S. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by S. 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by S. 3. The scheme of S. 11 thus clearly shows that S. 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by S . 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under S. 3, the employees are getting, say 3 other paid holidays, then S. 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if Ss. 3 and 11 are read together, there can be no doubt that respondents claim that they should have 7 holidays as prescribed S. 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that S. 3 will be operative. If that be so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of S. 3 of the Act. The Tribunal was therefore, in error in holding that the appellant had contravened S. 33 of the Industrial Dispute Act. | 1[ds]8.That takes us to S. 11 of the Act, because this section has to be read along with S. 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. Section 11 readsand privileges under other laws, etc., notcontained in this Act shall adversely affect any rights or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under thissection gives an option to the employees; they can choose to have the paid holidays either as prescribed by S. 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. That is the direction of S. 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by S. 3 because S. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by S. 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by S. 3. The scheme of S. 11 thus clearly shows that S. 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by S . 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under S. 3, the employees are getting, say 3 other paid holidays, then S. 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if Ss. 3 and 11 are read together, there can be no doubt that respondents claim that they should have 7 holidays as prescribed S. 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that S. 3 will be operative. If that be so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of S. 3 of the Act. The Tribunal was therefore, in error in holding that the appellant had contravened S. 33 of the Industrial Dispute Act. | 1 | 1,996 | 615 | ### 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:
provision, the Inspector declared certain holidays for the year 1959. Not satisfied with the decision of the Inspector, one of the appellants employees Mr. Baskara Menon filed a writ petition in the Kerala High Court under Art. 226 of the Constitution challenging the validity of the Inspectors decision. In that writ petition, the question about the construction of S. 3 of the Act was agitated. In the result, the High Court held that the complaint made by the petitioner against the validity of the decision of the Inspector was not well founded, and so, the writ petition was dismissed.6. In 1962, the appellant followed the same procedure and got a decision as to the festival holidays from the Inspector and declared that the said holidays would be observed as paid holidays in the year. At this time, certain industrial disputes were pending between the appellant and its employees belonging both to monthly and daily-rated categories before the Industrial Tribunal at Ernakulkam. The respondents felt that the declaration of the holidays made by the appellant for the year 1962 amounted to a contravention of S. 33 of the Industrial Dispute Act, and so they filed the two present complaints before the Industrial Tribunal under S. 33A of the said Act. That, in brief, is the genesis of the present complaints.7. We have already noticed the provisions of S. 3 of the Act. The contention raised by the respondents before the Tribunal was that the statutory provision as to 7 paid holidays prescribes the minimum number of holidays which the employer has to give to his employees. This provision, according to the respondents, does not override or abrogate the existing arrangement as to paid holidays. In regard to paid holidays which are common to S. 3 and the present arrangement, they would, of course, have to be treated as paid holidays, but the four other festival holidays which the Inspector decides from year to year would be in addition to the holidays which the appellant is bound to give to the respondents under the existing arrangement, and since the appellant has limited the number of paid holidays to 7 for the year 1962, it has acted contrary to the terms of employment evidenced by the existing arrangement as to paid holidays and that constitutes the violation of S. 33 of the Industrial Dispute Act. This contention has been upheld by the Tribunal; and Mr. Pai argues that the view taken by the Tribunal is plainly inconsistent with the true scope and effect of S. 3 read with S. 11 of the Act.8.That takes us to S. 11 of the Act, because this section has to be read along with S. 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. Section 11 reads thus:-"Rights and privileges under other laws, etc., not affected-Nothing contained in this Act shall adversely affect any rights or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act".This section gives an option to the employees; they can choose to have the paid holidays either as prescribed by S. 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. That is the direction of S. 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by S. 3 because S. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by S. 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by S. 3. The scheme of S. 11 thus clearly shows that S. 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by S . 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under S. 3, the employees are getting, say 3 other paid holidays, then S. 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if Ss. 3 and 11 are read together, there can be no doubt that respondents claim that they should have 7 holidays as prescribed S. 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that S. 3 will be operative. If that be so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of S. 3 of the Act. The Tribunal was therefore, in error in holding that the appellant had contravened S. 33 of the Industrial Dispute Act.
### Response:
1
### Explanation:
8.That takes us to S. 11 of the Act, because this section has to be read along with S. 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. Section 11 readsand privileges under other laws, etc., notcontained in this Act shall adversely affect any rights or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under thissection gives an option to the employees; they can choose to have the paid holidays either as prescribed by S. 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. That is the direction of S. 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by S. 3 because S. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by S. 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by S. 3. The scheme of S. 11 thus clearly shows that S. 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by S . 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under S. 3, the employees are getting, say 3 other paid holidays, then S. 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if Ss. 3 and 11 are read together, there can be no doubt that respondents claim that they should have 7 holidays as prescribed S. 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that S. 3 will be operative. If that be so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of S. 3 of the Act. The Tribunal was therefore, in error in holding that the appellant had contravened S. 33 of the Industrial Dispute Act.
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Chain Singh Vs. State of Punjab | hitting Darshan Singh who dropped down dead. Charan Singh fired shots from his pistol injuring PWs. 7 and 9. Karam Singh we alleged to have merely fired in the air from his pistol. Bawa Singh was alleged to have given barchhi blows to Ajit Singh, Malkiat Singh and Lachhman Singh. The appellant is alleged to have fired again hitting Malkiat Singh. Sadhu Singh himself claimed to have hid himself behind a tree and after the assailants went away he went to village Gondpur, arranged for a taxi and removed PWs. 7, 9 and 10 to Hoshiarpur Civil Hospital leaving PW 15 to guard the dead body of Darshan Singh. On the way PW 6 got down at the Police Station Hariana while the injured person were taken by another Sadhu Singh to Hoshiarpur. The FIR was lodged at 8 p. m. The Sub-Inspector of Police reached the spot at 9.15 p. m., held an inquest and sent the dead body to the Civil Hospital Hoshiarpur for post-mortem examination. He found three empty cartridge cases near the dead body and 8 cartridge cases at some distance. He took all of them into possession. The post-mortem examination revealed that one of the two injuries caused on the body of Darshan Singh by fire arms was sufficient to cause death in the ordinary course of nature. The medical examination showed that PWs 7 and 9 had a number of gun shot wounds, PW 10 had two lacerated wounds and one contused wound, P W 11 one contused wound and two penetrating wounds. The appellant produced his single barrel gun and Charan Singh produced a country made 12-bore pistol. The ballistic expert gave evidence that five of the empty cartridges had been fired from the gun belonging to the appellant and that three of them were fired from the pistol belonging to Charan Singh. He was not able to give a definite opinion about the other three empty cartridges. On this evidence, as already mentioned, the Sessions Judge convicted three of the accused, except Karam Singh and the High Court on appeal acquitted Bawa Singh. 3. The main points urged before this Court. as also before the High Court were the following : 1. That the First Information Report was inordinately delayed and it could not have been lodged at 8 p.m. and that it has been tampered with. 2. That two persons at least had been falsely implicated. 3. That all the witnesses are highly interested. 4. That Sadhu Singh is a false witness. 5. That the witnesses have improved upon their previous statements in material particulars 6. The accused had no motive to kill the deceased. The High Court on an elaborate review of the evidence came to the conciusion that the First Information Report was in all likelihood recorded at about midnight. It also thought that Sadhu Singh was not necessarily an untruthful witness who had not seen anything of the occurrence though his evidence had to be scrutinised with a good deal of caution. But about PWs. 7. 9. 10 and 11 it thought that they being stamped witnesses it could not be said that the delay in making the FIR as well as sending the report to the Magistrate and the arrival of the dead body at the mortuary were made for procuring false witnesses, and therefore, the delays are not fatal to the prosecution case. It elaborately went into the material particulars leading to Karam Singhs acquittal and held that evidence did not warrant a clear-cut finding that he must have been falsely implicated but that the circumstances were such that the court could give him the benefit of doubt As regards Bawa Singh the High Court particularly noticed the fact that white the FIR mentioned that he had a dang in his hand, in the evidence in court he was alleged to have been armed with a barchhi. It also took into account the fact that Malkiat Singh, PW 11 was not very seriously injured. It discussed the nature of the injuries on Malkiat Singh and came to the conclusion that they were probably due to gun shot and Bawa Singh could not therefore have caused the injuries to Malkiat Singh. It also considered the question regarding the injuries on PWs. 9 and 10, and on the ground that Bawa Singh would not have caused them acquitted him Various other arguments urged on behalf of the appellant were also considered by the High Court and it was of opinion that no effective argument could be built on those minor discrepancies and that there was no ground to reject the testimony of PWs. 6, 7, 9, 10 and 11 as there was general agreement as to the material particulars. It considered that the medical evidence fully supported the account given by the eye witnesses. It was not prepared to place any reliance on the contention that the empty cartridges should have been tampered with there was a long delay between the date of seizure of those cartridges and of the guns and their being sent to the ballistic expert, and rejected the suggestion that the various police officers constituted a gang which was out to falsely implicate the appellant. In the result the High Court came to the conclusion that the death sentence on appellant should be converted to one of life imprisonment was the sentence awarded to Charan Singh by the Sessions Judge. 4. We have set out at length the discussion of the prosecution evidence by the High Court, which shows how full, fair and unexceptionable the discussion and the conclusions arrived at by the High Court are. This Court in considering an appeal under the provisions of Article 136 of the Constitution does not reappraise the evidence unless there has been gross miscarriage of justice. We are satisfied that the conclusions of the High Court are correct and do not call for any interference at the hands of this Court. This appeal is, therefore, dismissed. | 0[ds]4. We have set out at length the discussion of the prosecution evidence by the High Court, which shows how full, fair and unexceptionable the discussion and the conclusions arrived at by the High Court are. This Court in considering an appeal under the provisions of Article 136 of the Constitution does not reappraise the evidence unless there has been gross miscarriage of justice. We are satisfied that the conclusions of the High Court are correct and do not call for any interference at the hands of this Court. This appeal is, therefore, dismissed. | 0 | 1,337 | 107 | ### 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:
hitting Darshan Singh who dropped down dead. Charan Singh fired shots from his pistol injuring PWs. 7 and 9. Karam Singh we alleged to have merely fired in the air from his pistol. Bawa Singh was alleged to have given barchhi blows to Ajit Singh, Malkiat Singh and Lachhman Singh. The appellant is alleged to have fired again hitting Malkiat Singh. Sadhu Singh himself claimed to have hid himself behind a tree and after the assailants went away he went to village Gondpur, arranged for a taxi and removed PWs. 7, 9 and 10 to Hoshiarpur Civil Hospital leaving PW 15 to guard the dead body of Darshan Singh. On the way PW 6 got down at the Police Station Hariana while the injured person were taken by another Sadhu Singh to Hoshiarpur. The FIR was lodged at 8 p. m. The Sub-Inspector of Police reached the spot at 9.15 p. m., held an inquest and sent the dead body to the Civil Hospital Hoshiarpur for post-mortem examination. He found three empty cartridge cases near the dead body and 8 cartridge cases at some distance. He took all of them into possession. The post-mortem examination revealed that one of the two injuries caused on the body of Darshan Singh by fire arms was sufficient to cause death in the ordinary course of nature. The medical examination showed that PWs 7 and 9 had a number of gun shot wounds, PW 10 had two lacerated wounds and one contused wound, P W 11 one contused wound and two penetrating wounds. The appellant produced his single barrel gun and Charan Singh produced a country made 12-bore pistol. The ballistic expert gave evidence that five of the empty cartridges had been fired from the gun belonging to the appellant and that three of them were fired from the pistol belonging to Charan Singh. He was not able to give a definite opinion about the other three empty cartridges. On this evidence, as already mentioned, the Sessions Judge convicted three of the accused, except Karam Singh and the High Court on appeal acquitted Bawa Singh. 3. The main points urged before this Court. as also before the High Court were the following : 1. That the First Information Report was inordinately delayed and it could not have been lodged at 8 p.m. and that it has been tampered with. 2. That two persons at least had been falsely implicated. 3. That all the witnesses are highly interested. 4. That Sadhu Singh is a false witness. 5. That the witnesses have improved upon their previous statements in material particulars 6. The accused had no motive to kill the deceased. The High Court on an elaborate review of the evidence came to the conciusion that the First Information Report was in all likelihood recorded at about midnight. It also thought that Sadhu Singh was not necessarily an untruthful witness who had not seen anything of the occurrence though his evidence had to be scrutinised with a good deal of caution. But about PWs. 7. 9. 10 and 11 it thought that they being stamped witnesses it could not be said that the delay in making the FIR as well as sending the report to the Magistrate and the arrival of the dead body at the mortuary were made for procuring false witnesses, and therefore, the delays are not fatal to the prosecution case. It elaborately went into the material particulars leading to Karam Singhs acquittal and held that evidence did not warrant a clear-cut finding that he must have been falsely implicated but that the circumstances were such that the court could give him the benefit of doubt As regards Bawa Singh the High Court particularly noticed the fact that white the FIR mentioned that he had a dang in his hand, in the evidence in court he was alleged to have been armed with a barchhi. It also took into account the fact that Malkiat Singh, PW 11 was not very seriously injured. It discussed the nature of the injuries on Malkiat Singh and came to the conclusion that they were probably due to gun shot and Bawa Singh could not therefore have caused the injuries to Malkiat Singh. It also considered the question regarding the injuries on PWs. 9 and 10, and on the ground that Bawa Singh would not have caused them acquitted him Various other arguments urged on behalf of the appellant were also considered by the High Court and it was of opinion that no effective argument could be built on those minor discrepancies and that there was no ground to reject the testimony of PWs. 6, 7, 9, 10 and 11 as there was general agreement as to the material particulars. It considered that the medical evidence fully supported the account given by the eye witnesses. It was not prepared to place any reliance on the contention that the empty cartridges should have been tampered with there was a long delay between the date of seizure of those cartridges and of the guns and their being sent to the ballistic expert, and rejected the suggestion that the various police officers constituted a gang which was out to falsely implicate the appellant. In the result the High Court came to the conclusion that the death sentence on appellant should be converted to one of life imprisonment was the sentence awarded to Charan Singh by the Sessions Judge. 4. We have set out at length the discussion of the prosecution evidence by the High Court, which shows how full, fair and unexceptionable the discussion and the conclusions arrived at by the High Court are. This Court in considering an appeal under the provisions of Article 136 of the Constitution does not reappraise the evidence unless there has been gross miscarriage of justice. We are satisfied that the conclusions of the High Court are correct and do not call for any interference at the hands of this Court. This appeal is, therefore, dismissed.
### Response:
0
### Explanation:
4. We have set out at length the discussion of the prosecution evidence by the High Court, which shows how full, fair and unexceptionable the discussion and the conclusions arrived at by the High Court are. This Court in considering an appeal under the provisions of Article 136 of the Constitution does not reappraise the evidence unless there has been gross miscarriage of justice. We are satisfied that the conclusions of the High Court are correct and do not call for any interference at the hands of this Court. This appeal is, therefore, dismissed.
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M/s. Mathura Electric Supply Company Limited and Another Vs. State of Uttar Pradesh and Another | Desai, J.1. The chronology of events leading to the re-instatement of the respondent which gave rise to the present miscellaneous petition have been succinctly set out in the judgment of this Court in Mathura Electric Supply Co. Ltd. & Anr. v. State of U.P. & Ors. (1981) 3 SCC 623. Respondent Summera was employed as an Assistant Lineman in the Mathura Electric Supply Co. Ltd. (Appellant for short). He was dismissed from service on August 19, 1955. This led to an industrial dispute in respect of which a reference was made under S.4-K of the U.P. Industrial Disputes Act, 1947 ultimately to the Labour Court, Meerut. As was only to be expected, a preliminary objection was raised on behalf of the appellant that the reference was incompetent. The Labour Court by its award dated September 30, 1958, held that the reference was competent and further held that the dismissal from service was illegal and invalid and granted reinstatement with continuity of service and full backwages. The appellant after an unsuccessful writ petition and writ appeal in the Allahabad High Court landed in this Court by an appeal by special leave. This Court by its judgment dated May 6, 1981, held that the reference was competent and affirmed the award of the Labour Court. Once the award of the Labour Court became final, the respondent had to be reinstated in service with all consequential benefits. The respondent has been reinstated in service.2. The dispute between the parties was about the computation of the benefits to which the respondent is entitled under the award of the Labour Court affirmed by this Court.3. Apart from seeking monetary computation, the respondent also prayed for taking action in contempt against the officers of the appellant company as well as the U.P. Electricity Board.4. It may be mentioned that in July, 1975 the undertaking of the appellant-company was acquired under S.6 of the Indian Electricity Act, 1967 and it has vested in the U.P. Electricity Board. Accordingly, a notice was also sent to the U.P. Electricity Board and Mr. S. N. Kacker, learned senior counsel instructed by Mrs. Shobha Dikshit appeared for the U.P. Electricity Board (Board for short). This petition was heard on number of occasions having a speed of slow motion news and by small bits some relief has already been given to the hard pressed respondent.5. To begin with, the respondent has been reinstated in the service of the Board under the orders of this Court. By an order made by this Court on October 24, 1983, the Board was directed to pay Rs. 20, 000/- to the respondent towards the arrears of backwages with liberty to adjust the amount when final computation is made. Both the sides were directed to file their respective computations of backwages and monetary equivalent of other benefits. Computation and counter-computations have been filed by both the parties.6. Mr. Kacker urged that the liability of the Board would commence from the date of the acquisition of the undertaking of the appellant-company and prior thereto the liability to pay the backwages and monetary equivalent of another benefits would be of the appellant. It was also submitted that the liability of the appellant till the date of take over in the matter of backwages and other benefits to respondent Summera would be in the amount of Rs. 30, 000/-. On this submission, we heard counsel appearing for the appellant-company. Having heard them we are satisfied that this computation is correct and unassailable. We accordingly direct that the Board shall pay Rs. 30, 000/- to the respondent for the backwages and monetary equivalent of other benefits for the period commencing from the date of the termination of service i.e. August 19, 1955 upto the date of acquisition of the electrical undertaking of the appellant-company i.e. July, 1975. We further direct on the payment of Rs. 30, 000/- by the Board to respondent Summera, as herein directed, the same shall be deductible from the compensation that the Board may have to pay to the appellant-company for the acquisition of its electrical undertaking.7. The next period for which the Board pursuant to the award is under an obligation to pay backwages and monetary equivalent of other benefits is from July, 1975 till the date of reinstatement.8. Mr. Kacker drew our attention to the chart of computation prepared by the Accountant of the Board and annexed to the letter dated May 26, 1984, of the Executive Engineer addressed to Mrs. Shobha Dikshit. On the basis of this computation, the Board has to pay Rs. 56, 399.80 p. from which adjustment is claimed in the amount of Rs. 20, 000/- paid under the order of this Court made on October 24, 1983. As against this, Mr. G. L. Sanghi, learned senior advocate, who appeared for respondent Summera drew our attention to the chart annexed to the affidavit of the workman dated March, 1984 which shows that the Board will have to pay a sum of Rs. 1, 57, 561.50 p. for the period from July, 1975 upto the date of reinstatement. This wide gap between the two calculations was attributable to certain assumptions made by both the parties in calculating the backwages payable to the workman : to wit, the Board assumed that throughout the period the basic salary of the appellant will be Rs. 425/- without reference to the scale and the workman assumed that he must be deemed to have reached the maximum of the scale available to Assistant Lineman in 1975 and that atleast he was bound to claim one promotion as Lineman. Both the assumptions are erroneous and untenable in part. | 1[ds]Having heard them we are satisfied that this computation is correct and unassailable. We accordingly direct that the Board shall pay Rs. 30, 000/to the respondent for the backwages and monetary equivalent of other benefits for the period commencing from the date of the termination of service i.e. August 19, 1955 upto the date of acquisition of the electrical undertaking of thei.e. July, 1975. We further direct on the payment of Rs. 30, 000/by the Board to respondent Summera, as herein directed, the same shall be deductible from the compensation that the Board may have to pay to thefor the acquisition of its electrical undertaking.We accordingly heard the learned counsel appearing for the parties and we direct the payment of backwages a herein indicated :(a) Respondent Summera shall be paid Rs. 30, 000/by way of backwages and monetary computation of other benefits for the period from August 19, 1955 to July, 1975. This amount will be payable by Mathura Electric Supply Co. Ltd. as it existed prior to its acquisition. The amount of Rs. 30, 000/as directed herein shall be paid by the Board and the Board is entitled to deduct that amount from the compensation that may become payable by the Board to thefor the acquisition of its electricalThe Board shall pay Rs. 75, 000/in one lumpsum to the appellant in respect of the backwages and monetary equivalent of other benefits for the period from July, 1975 to the effective date of reinstatement. The Board will be entitled to take credit for the amount of Rs. 20, 000/already paid under the order of this Court dated October 24, 1983. In other words, the Board shall pay Rs. 55, 000/to the workman Summera as backwages and monetary equivalent of other benefits for the period July, 1975 to the date of reinstatement. | 1 | 1,038 | 341 | ### 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:
Desai, J.1. The chronology of events leading to the re-instatement of the respondent which gave rise to the present miscellaneous petition have been succinctly set out in the judgment of this Court in Mathura Electric Supply Co. Ltd. & Anr. v. State of U.P. & Ors. (1981) 3 SCC 623. Respondent Summera was employed as an Assistant Lineman in the Mathura Electric Supply Co. Ltd. (Appellant for short). He was dismissed from service on August 19, 1955. This led to an industrial dispute in respect of which a reference was made under S.4-K of the U.P. Industrial Disputes Act, 1947 ultimately to the Labour Court, Meerut. As was only to be expected, a preliminary objection was raised on behalf of the appellant that the reference was incompetent. The Labour Court by its award dated September 30, 1958, held that the reference was competent and further held that the dismissal from service was illegal and invalid and granted reinstatement with continuity of service and full backwages. The appellant after an unsuccessful writ petition and writ appeal in the Allahabad High Court landed in this Court by an appeal by special leave. This Court by its judgment dated May 6, 1981, held that the reference was competent and affirmed the award of the Labour Court. Once the award of the Labour Court became final, the respondent had to be reinstated in service with all consequential benefits. The respondent has been reinstated in service.2. The dispute between the parties was about the computation of the benefits to which the respondent is entitled under the award of the Labour Court affirmed by this Court.3. Apart from seeking monetary computation, the respondent also prayed for taking action in contempt against the officers of the appellant company as well as the U.P. Electricity Board.4. It may be mentioned that in July, 1975 the undertaking of the appellant-company was acquired under S.6 of the Indian Electricity Act, 1967 and it has vested in the U.P. Electricity Board. Accordingly, a notice was also sent to the U.P. Electricity Board and Mr. S. N. Kacker, learned senior counsel instructed by Mrs. Shobha Dikshit appeared for the U.P. Electricity Board (Board for short). This petition was heard on number of occasions having a speed of slow motion news and by small bits some relief has already been given to the hard pressed respondent.5. To begin with, the respondent has been reinstated in the service of the Board under the orders of this Court. By an order made by this Court on October 24, 1983, the Board was directed to pay Rs. 20, 000/- to the respondent towards the arrears of backwages with liberty to adjust the amount when final computation is made. Both the sides were directed to file their respective computations of backwages and monetary equivalent of other benefits. Computation and counter-computations have been filed by both the parties.6. Mr. Kacker urged that the liability of the Board would commence from the date of the acquisition of the undertaking of the appellant-company and prior thereto the liability to pay the backwages and monetary equivalent of another benefits would be of the appellant. It was also submitted that the liability of the appellant till the date of take over in the matter of backwages and other benefits to respondent Summera would be in the amount of Rs. 30, 000/-. On this submission, we heard counsel appearing for the appellant-company. Having heard them we are satisfied that this computation is correct and unassailable. We accordingly direct that the Board shall pay Rs. 30, 000/- to the respondent for the backwages and monetary equivalent of other benefits for the period commencing from the date of the termination of service i.e. August 19, 1955 upto the date of acquisition of the electrical undertaking of the appellant-company i.e. July, 1975. We further direct on the payment of Rs. 30, 000/- by the Board to respondent Summera, as herein directed, the same shall be deductible from the compensation that the Board may have to pay to the appellant-company for the acquisition of its electrical undertaking.7. The next period for which the Board pursuant to the award is under an obligation to pay backwages and monetary equivalent of other benefits is from July, 1975 till the date of reinstatement.8. Mr. Kacker drew our attention to the chart of computation prepared by the Accountant of the Board and annexed to the letter dated May 26, 1984, of the Executive Engineer addressed to Mrs. Shobha Dikshit. On the basis of this computation, the Board has to pay Rs. 56, 399.80 p. from which adjustment is claimed in the amount of Rs. 20, 000/- paid under the order of this Court made on October 24, 1983. As against this, Mr. G. L. Sanghi, learned senior advocate, who appeared for respondent Summera drew our attention to the chart annexed to the affidavit of the workman dated March, 1984 which shows that the Board will have to pay a sum of Rs. 1, 57, 561.50 p. for the period from July, 1975 upto the date of reinstatement. This wide gap between the two calculations was attributable to certain assumptions made by both the parties in calculating the backwages payable to the workman : to wit, the Board assumed that throughout the period the basic salary of the appellant will be Rs. 425/- without reference to the scale and the workman assumed that he must be deemed to have reached the maximum of the scale available to Assistant Lineman in 1975 and that atleast he was bound to claim one promotion as Lineman. Both the assumptions are erroneous and untenable in part.
### Response:
1
### Explanation:
Having heard them we are satisfied that this computation is correct and unassailable. We accordingly direct that the Board shall pay Rs. 30, 000/to the respondent for the backwages and monetary equivalent of other benefits for the period commencing from the date of the termination of service i.e. August 19, 1955 upto the date of acquisition of the electrical undertaking of thei.e. July, 1975. We further direct on the payment of Rs. 30, 000/by the Board to respondent Summera, as herein directed, the same shall be deductible from the compensation that the Board may have to pay to thefor the acquisition of its electrical undertaking.We accordingly heard the learned counsel appearing for the parties and we direct the payment of backwages a herein indicated :(a) Respondent Summera shall be paid Rs. 30, 000/by way of backwages and monetary computation of other benefits for the period from August 19, 1955 to July, 1975. This amount will be payable by Mathura Electric Supply Co. Ltd. as it existed prior to its acquisition. The amount of Rs. 30, 000/as directed herein shall be paid by the Board and the Board is entitled to deduct that amount from the compensation that may become payable by the Board to thefor the acquisition of its electricalThe Board shall pay Rs. 75, 000/in one lumpsum to the appellant in respect of the backwages and monetary equivalent of other benefits for the period from July, 1975 to the effective date of reinstatement. The Board will be entitled to take credit for the amount of Rs. 20, 000/already paid under the order of this Court dated October 24, 1983. In other words, the Board shall pay Rs. 55, 000/to the workman Summera as backwages and monetary equivalent of other benefits for the period July, 1975 to the date of reinstatement.
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State Of Maharashtra Vs. Mishri Lal Tarachand Lodha Andothers | principle are these amounts not treated as forming part of the value of the subject matter in dispute in appeal? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the point in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression subject matter in dispute in plaint or memo of appeal.15. There appears no good reasons to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject matter in dispute in appeal. It is true that costs of a suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiffs claim though its award is within the discretion of the Court, but this will not justify the distinction. The costs too, and particularly the costs on account of court-fee and counsels fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression amount or value of subject matter in dispute in Art. 1, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and costs according to the circumstances of the suit in view of Ss. 34 and 35 C.P.C. This principle equally applies to the non-inclusion of the decreed amounts of pendente lite interest in evaluating the subject matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has no right or claim for that amount against the defendant.16. It is obvious that if the defendant - appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a way that if the plaintiffs claim is dismissed in toto, he will not be awarded any future interest or any costs of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court. The defendant appellate has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court- fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression value of the subject matter in dispute in appeal. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amounts of costs or future interest.17. In Mitthoo Lal v. Mt. Chameli, ILR 57 All 71 : (AIR 1934 All 805) it was held that no court-fee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76 (of ILR All) : (at p. 807of AIR) :"Interest pendente lite is awarded under S. 34 of the Civil Procedure Code. The Court may award it whether the plaintiff claims it or not. In this respect the courts power stands on the same footing as its power to award costs to a successful party. It is well settled rule that no court- fee is payable on the amount of costs awarded by a decree appealed from, if no ground is specifically directed against the award of costs ........... The same principle is applicable to interest pendente lite, which the Court may award in the exercise of its power under S. 34. On a proper reading of the appellants grounds of appeal in the lower appellate court we are satisfied that the subject matter of his appeal to that court was the principal amount and interest up to the date of the suit."18. In Mst. Keolapati v. B. N. Varma, ILR 12 Luck 466 : (AIR 1937 Oudh 3) it was held that unless the appellant expressly challenges the award of future interest, no court-fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal.19. In Ashutosh v. Satindra Kumar, 54 Cal WN 380 : (AIR 1950 Cal 296 ) it was said at p. 382 (of CWN) : (at p. 297 of AIR) :"Costs are not regarded as being any part of a subject-matter in dispute either in the suit or in the appeal. In the appeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject-matter in dispute and if he himself succeeds in the appeal in regard to the main subject matter, automatically he will expect to succeed with regard to the costs." | 1[ds]9. We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant. The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court, the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction.The amount of court-fee payable, therefore, depends on the amount or value of the subject matter in dispute in appeal. The defendant-appellant valued his claim at Rs. 13,033-6-6 and paid the requisite court-fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033-6-6 against him on account of principal and interest due up to the date of the institution of the suit. He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4 per cent per annum on a sum of Rs. 10,120/- as had been awarded under the decree. Whether his appeal is competent or not without his including this amount in his claim in appeal, is a question different from that relating to the value of the subject matter in dispute in appeal. He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject matter in dispute in appeal covered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree. This makes it further plain that he does not question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded. It is not possible to say, in these circumstances, that the value of the subject matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree.13. Mr. Gupte has rightly conceded that it is well-settled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has not to include the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has not to include that amount of future interest subsequent to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes of court-fee and that no court-fee is to be paid on the amount of costs decreed in the suit when the party aggrieved appeals against thereason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression amount or value of subject matter in dispute in Art. 1, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and costs according to the circumstances of the suit in view of Ss. 34 and 35 C.P.C. This principle equally applies to the non-inclusion of the decreed amounts of pendente lite interest in evaluating the subject matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has no right or claim for that amount against thedefendant appellate has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court- fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression value of the subject matter in dispute in appeal. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amounts of costs or future interest. | 1 | 2,588 | 837 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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principle are these amounts not treated as forming part of the value of the subject matter in dispute in appeal? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the point in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression subject matter in dispute in plaint or memo of appeal.15. There appears no good reasons to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject matter in dispute in appeal. It is true that costs of a suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiffs claim though its award is within the discretion of the Court, but this will not justify the distinction. The costs too, and particularly the costs on account of court-fee and counsels fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression amount or value of subject matter in dispute in Art. 1, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and costs according to the circumstances of the suit in view of Ss. 34 and 35 C.P.C. This principle equally applies to the non-inclusion of the decreed amounts of pendente lite interest in evaluating the subject matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has no right or claim for that amount against the defendant.16. It is obvious that if the defendant - appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a way that if the plaintiffs claim is dismissed in toto, he will not be awarded any future interest or any costs of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court. The defendant appellate has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court- fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression value of the subject matter in dispute in appeal. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amounts of costs or future interest.17. In Mitthoo Lal v. Mt. Chameli, ILR 57 All 71 : (AIR 1934 All 805) it was held that no court-fee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76 (of ILR All) : (at p. 807of AIR) :"Interest pendente lite is awarded under S. 34 of the Civil Procedure Code. The Court may award it whether the plaintiff claims it or not. In this respect the courts power stands on the same footing as its power to award costs to a successful party. It is well settled rule that no court- fee is payable on the amount of costs awarded by a decree appealed from, if no ground is specifically directed against the award of costs ........... The same principle is applicable to interest pendente lite, which the Court may award in the exercise of its power under S. 34. On a proper reading of the appellants grounds of appeal in the lower appellate court we are satisfied that the subject matter of his appeal to that court was the principal amount and interest up to the date of the suit."18. In Mst. Keolapati v. B. N. Varma, ILR 12 Luck 466 : (AIR 1937 Oudh 3) it was held that unless the appellant expressly challenges the award of future interest, no court-fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal.19. In Ashutosh v. Satindra Kumar, 54 Cal WN 380 : (AIR 1950 Cal 296 ) it was said at p. 382 (of CWN) : (at p. 297 of AIR) :"Costs are not regarded as being any part of a subject-matter in dispute either in the suit or in the appeal. In the appeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject-matter in dispute and if he himself succeeds in the appeal in regard to the main subject matter, automatically he will expect to succeed with regard to the costs."
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9. We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant. The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court, the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction.The amount of court-fee payable, therefore, depends on the amount or value of the subject matter in dispute in appeal. The defendant-appellant valued his claim at Rs. 13,033-6-6 and paid the requisite court-fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033-6-6 against him on account of principal and interest due up to the date of the institution of the suit. He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4 per cent per annum on a sum of Rs. 10,120/- as had been awarded under the decree. Whether his appeal is competent or not without his including this amount in his claim in appeal, is a question different from that relating to the value of the subject matter in dispute in appeal. He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject matter in dispute in appeal covered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree. This makes it further plain that he does not question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded. It is not possible to say, in these circumstances, that the value of the subject matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree.13. Mr. Gupte has rightly conceded that it is well-settled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has not to include the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has not to include that amount of future interest subsequent to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes of court-fee and that no court-fee is to be paid on the amount of costs decreed in the suit when the party aggrieved appeals against thereason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression amount or value of subject matter in dispute in Art. 1, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and costs according to the circumstances of the suit in view of Ss. 34 and 35 C.P.C. This principle equally applies to the non-inclusion of the decreed amounts of pendente lite interest in evaluating the subject matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has no right or claim for that amount against thedefendant appellate has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court- fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression value of the subject matter in dispute in appeal. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amounts of costs or future interest.
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RAMATHAL Vs. MARUTHATHAL . & ORS | has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of re appreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC. 17. Although this specific ground is sufficient to set aside the judgment and decree of the High Court, but we tend to examine the case on other issues in view of the elaborate submissions made by the respective counsels. Now we shall embark upon the issue, whether the time is the essence of the contract. 18. We are mindful of the fact that the agreement contained a provision stipulating time for payment and completion of the contract. It is to be noted that Clause 3 of the agreement makes execution of the contract by the buyer contingent on the payment which ultimately hinges on the performance of sellers obligation to conduct survey and affix boundaries. Additionally the conduct of the seller especially taking into consideration the reply notice, dated 05.10.1987, by the seller wherein they admit that the 6 month time frame was not binding as the payment obligation may be performed by the end of one year i.e., before completion of the sale. Further by the aforesaid reply notice the sellers were agreeable to accept delayed payment subject to payment of extra interest clearly indicates that the time was not the essence of the contract. Moreover the sellers were unwilling to perform their part of the contract in any case. 19. As per the law laid down by this Court in respect of sale of immovable property there is no presumption as to time being the essence of the contract. Even when there is no stipulation courts may infer that it has to be performed within a reasonable time taking into consideration the terms of the contract, the nature of the property and other surrounding circumstances. We feel that this proposition needs to be revisited in an appropriate case, as the value of an immovable property rate is fluctuating in recent times. 20. At the cost of repetition, it should be noted that, whether the time is an essence of the contract would depend on facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before us, the contention of the seller that the time is the essence of the contract is negated. 21. The Ld. Senior Counsel appearing for seller contends that the Specific performance being an equitable remedy, condition precedent of readiness and willingness has to be specifically pleaded and proved by the buyer for enforcement of the specific performance [refer K. Prakash v. B. R. Sampath Kumar, 2015 (1) SCC 597 ]. She further submits that there are only vague averments in the pleading that the buyer was ready and willing to perform his part of the contract. There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove that they are always ready and willing to perform their part of the contract throughout. Section 16 (C) of the specific relief act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence. Requirement of fulfilling the conditions under section 16 (C) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case the plaint as well as the documents available on record goes to show that it was specifically pleaded that buyer was ready and willing to perform his part of the contract. Additionally the evidence of PW1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the Ld. Senior counsel appearing on behalf of the seller is repelled as being meritless. 22. Lastly, it is vehemently contended by the Ld. Senior counsel appearing on behalf of the seller that this Court should not exercise its discretion to grant specific performance in favor of the buyer, as the same would be inequitable for the seller. It was submitted that the price of the property has increased manifold and further during the pendency of litigation, the seller has executed another contract of sale with another person. There is no dispute that the execution of the contract was made subject to satisfactory survey which is a binding obligation upon the seller and he has failed to perform his part of the obligation to the satisfaction of the buyer. Although the measurement was mentioned in the sale deed, but from perusal of other clauses in the agreement would reveal that the said measurement of 1.87 ¾ Acres was a tentative figure mentioned under the agreement. 23. The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law. Absolutely there is no illegality or infirmity in the judgments of the courts below which has judicially exercised its discretion and the High Court ought not to have interfered with the same. | 1[ds]It is to be noted that the trial court and the lower appellate court concurrently found that the buyer was ready and willing to perform the contract which was apparent from both pleadings as well as oral and documentary evidence available on record.The agreement stipulated Rs. 1,01,000/- per acre as the sale consideration. A time period of one year was stipulated for buyer to execute the sale. Further it narrates that if the seller commits any default or denies to execute the sale deed in favor of buyer, then buyer shall have the right to remit the balance amount in the court and go for compulsory registration, provided the buyer was ready to pay the balance amount deducting the advance amount and ready to execute the sale deed. It is to be noted that in such a case, the seller had agreed to bear the entire expense of litigation. Moreover in order to convert the property into marketable plots, possession was also given to the buyer from the date of contract.11. The seller had agreed for conducting a survey of the scheduled property at their own cost and also agreed to demarcate the boundaries by affixing stones. Additionally the sale consideration was agreed to be calculated according to the extent of land found in the survey. On the other hand the buyer had agreed to pay the entire sale consideration within six months from the date of the contract. It is to be noted that the seller had agreed to rectify any hindrance which might occur in selling of the land other than those related to Government, Panchayat, and Housing Board and to extend the period of the agreement on happening of such hindrances. Moreover the schedule of the property mentions the extent of property to be 1.87 ¾ acres.12. Perusal of various conditions stipulated in the agreement makes it clear that the reciprocal promises were dependent on each other and must be determined on the true construction of the contract in the order which the nature of transaction requires. The view taken by the High Court, regarding the interpretation of the contract wherein the execution of the contract was independent of the payment obligation, is erroneous and cannot be sustained in the eyes of law as the contract needs to be read as whole and not in a piecemeal approach as undertaken by the High Court. Therefore the buyers payment obligation and the obligation to`execute the contract, was dependent upon the measurement to be conducted by the seller.13. The factual aspect which was supposed to be considered was whether the survey was conducted by the seller or not. It is on record that DW1 and DW2 have stated that the survey was conducted subsequent to the execution of the agreement, but no documents were marked on behalf of the seller evidencing the fact that survey was undertaken. When both the courts below took a view that evidence of the witness was not believable on detailed consideration of their cross examination and non availability of documentary evidence to prove that survey was conducted, then the High Court should not have interfered with such factual findings by taking into consideration the oral evidence of witnesses without there being any documentary evidence. The crucial fact that the survey was not conducted had attained finality by the earlier judgment of the High Court in CRP No. 2195 of 1989. Therefore, once trial court and first appellate court which are the fact finding courts have come to the specific conclusion that the plaintiff is entitled for specific performance of the agreement of sale, the High Court on re-appreciation of evidence could not have upset the factual findings in second appeal.14. It was not appropriate for the high court to embark upon the task of re appreciation of evidence in the second appeal and disturb the concurrent findings of fact of the court below which are the fact finding courts.15. A clear reading of section 100 and 103 of the CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the high court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal. Hence a prerequisite for entertaining a Second appeal is a substantial question of law involved in the case which has to be adjudicated by the high court. It is the intention of the Legislature to limit the scope of second appeal only when a substantial question of law is involved and the amendment made to section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact finding court. However it is not an absolute rule that high court cannot interfere in a second appeal on a question of fact, Section 103 of the CPC enables the High Court to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible, in such circumstances the High Courts should restrain itself from exercising the jurisdiction on a question of fact.16. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with law. In the case on hand the High Court has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of re appreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC.17. Although this specific ground is sufficient to set aside the judgment and decree of the High Court, but we tend to examine the case on other issues in view of the elaborate submissions made by the respective counsels. Now we shall embark upon the issue, whether the time is the essence of the contract.18. We are mindful of the fact that the agreement contained a provision stipulating time for payment and completion of the contract. It is to be noted that Clause 3 of the agreement makes execution of the contract by the buyer contingent on the payment which ultimately hinges on the performance of sellers obligation to conduct survey and affix boundaries. Additionally the conduct of the seller especially taking into consideration the reply notice, dated 05.10.1987, by the seller wherein they admit that the 6 month time frame was not binding as the payment obligation may be performed by the end of one year i.e., before completion of the sale. Further by the aforesaid reply notice the sellers were agreeable to accept delayed payment subject to payment of extra interest clearly indicates that the time was not the essence of the contract. Moreover the sellers were unwilling to perform their part of the contract in any case.19. As per the law laid down by this Court in respect of sale of immovable property there is no presumption as to time being the essence of the contract. Even when there is no stipulation courts may infer that it has to be performed within a reasonable time taking into consideration the terms of the contract, the nature of the property and other surrounding circumstances. We feel that this proposition needs to be revisited in an appropriate case, as the value of an immovable property rate is fluctuating in recent times.20. At the cost of repetition, it should be noted that, whether the time is an essence of the contract would depend on facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before us, the contention of the seller that the time is the essence of the contract is negated.There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove that they are always ready and willing to perform their part of the contract throughout. Section 16 (C) of the specific relief act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence. Requirement of fulfilling the conditions under section 16 (C) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case the plaint as well as the documents available on record goes to show that it was specifically pleaded that buyer was ready and willing to perform his part of the contract. Additionally the evidence of PW1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the Ld. Senior counsel appearing on behalf of the seller is repelled as being meritless.There is no dispute that the execution of the contract was made subject to satisfactory survey which is a binding obligation upon the seller and he has failed to perform his part of the obligation to the satisfaction of the buyer. Although the measurement was mentioned in the sale deed, but from perusal of other clauses in the agreement would reveal that the said measurement of 1.87 ¾ Acres was a tentative figure mentioned under the agreement.23. The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law. Absolutely there is no illegality or infirmity in the judgments of the courts below which has judicially exercised its discretion and the High Court ought not to have interfered with the same. | 1 | 3,367 | 1,934 | ### 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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has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of re appreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC. 17. Although this specific ground is sufficient to set aside the judgment and decree of the High Court, but we tend to examine the case on other issues in view of the elaborate submissions made by the respective counsels. Now we shall embark upon the issue, whether the time is the essence of the contract. 18. We are mindful of the fact that the agreement contained a provision stipulating time for payment and completion of the contract. It is to be noted that Clause 3 of the agreement makes execution of the contract by the buyer contingent on the payment which ultimately hinges on the performance of sellers obligation to conduct survey and affix boundaries. Additionally the conduct of the seller especially taking into consideration the reply notice, dated 05.10.1987, by the seller wherein they admit that the 6 month time frame was not binding as the payment obligation may be performed by the end of one year i.e., before completion of the sale. Further by the aforesaid reply notice the sellers were agreeable to accept delayed payment subject to payment of extra interest clearly indicates that the time was not the essence of the contract. Moreover the sellers were unwilling to perform their part of the contract in any case. 19. As per the law laid down by this Court in respect of sale of immovable property there is no presumption as to time being the essence of the contract. Even when there is no stipulation courts may infer that it has to be performed within a reasonable time taking into consideration the terms of the contract, the nature of the property and other surrounding circumstances. We feel that this proposition needs to be revisited in an appropriate case, as the value of an immovable property rate is fluctuating in recent times. 20. At the cost of repetition, it should be noted that, whether the time is an essence of the contract would depend on facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before us, the contention of the seller that the time is the essence of the contract is negated. 21. The Ld. Senior Counsel appearing for seller contends that the Specific performance being an equitable remedy, condition precedent of readiness and willingness has to be specifically pleaded and proved by the buyer for enforcement of the specific performance [refer K. Prakash v. B. R. Sampath Kumar, 2015 (1) SCC 597 ]. She further submits that there are only vague averments in the pleading that the buyer was ready and willing to perform his part of the contract. There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove that they are always ready and willing to perform their part of the contract throughout. Section 16 (C) of the specific relief act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence. Requirement of fulfilling the conditions under section 16 (C) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case the plaint as well as the documents available on record goes to show that it was specifically pleaded that buyer was ready and willing to perform his part of the contract. Additionally the evidence of PW1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the Ld. Senior counsel appearing on behalf of the seller is repelled as being meritless. 22. Lastly, it is vehemently contended by the Ld. Senior counsel appearing on behalf of the seller that this Court should not exercise its discretion to grant specific performance in favor of the buyer, as the same would be inequitable for the seller. It was submitted that the price of the property has increased manifold and further during the pendency of litigation, the seller has executed another contract of sale with another person. There is no dispute that the execution of the contract was made subject to satisfactory survey which is a binding obligation upon the seller and he has failed to perform his part of the obligation to the satisfaction of the buyer. Although the measurement was mentioned in the sale deed, but from perusal of other clauses in the agreement would reveal that the said measurement of 1.87 ¾ Acres was a tentative figure mentioned under the agreement. 23. The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law. Absolutely there is no illegality or infirmity in the judgments of the courts below which has judicially exercised its discretion and the High Court ought not to have interfered with the same.
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the High Court to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible, in such circumstances the High Courts should restrain itself from exercising the jurisdiction on a question of fact.16. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with law. In the case on hand the High Court has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of re appreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC.17. Although this specific ground is sufficient to set aside the judgment and decree of the High Court, but we tend to examine the case on other issues in view of the elaborate submissions made by the respective counsels. Now we shall embark upon the issue, whether the time is the essence of the contract.18. We are mindful of the fact that the agreement contained a provision stipulating time for payment and completion of the contract. It is to be noted that Clause 3 of the agreement makes execution of the contract by the buyer contingent on the payment which ultimately hinges on the performance of sellers obligation to conduct survey and affix boundaries. Additionally the conduct of the seller especially taking into consideration the reply notice, dated 05.10.1987, by the seller wherein they admit that the 6 month time frame was not binding as the payment obligation may be performed by the end of one year i.e., before completion of the sale. Further by the aforesaid reply notice the sellers were agreeable to accept delayed payment subject to payment of extra interest clearly indicates that the time was not the essence of the contract. Moreover the sellers were unwilling to perform their part of the contract in any case.19. As per the law laid down by this Court in respect of sale of immovable property there is no presumption as to time being the essence of the contract. Even when there is no stipulation courts may infer that it has to be performed within a reasonable time taking into consideration the terms of the contract, the nature of the property and other surrounding circumstances. We feel that this proposition needs to be revisited in an appropriate case, as the value of an immovable property rate is fluctuating in recent times.20. At the cost of repetition, it should be noted that, whether the time is an essence of the contract would depend on facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before us, the contention of the seller that the time is the essence of the contract is negated.There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove that they are always ready and willing to perform their part of the contract throughout. Section 16 (C) of the specific relief act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence. Requirement of fulfilling the conditions under section 16 (C) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case the plaint as well as the documents available on record goes to show that it was specifically pleaded that buyer was ready and willing to perform his part of the contract. Additionally the evidence of PW1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the Ld. Senior counsel appearing on behalf of the seller is repelled as being meritless.There is no dispute that the execution of the contract was made subject to satisfactory survey which is a binding obligation upon the seller and he has failed to perform his part of the obligation to the satisfaction of the buyer. Although the measurement was mentioned in the sale deed, but from perusal of other clauses in the agreement would reveal that the said measurement of 1.87 ¾ Acres was a tentative figure mentioned under the agreement.23. The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law. Absolutely there is no illegality or infirmity in the judgments of the courts below which has judicially exercised its discretion and the High Court ought not to have interfered with the same.
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State of Assam & Others Vs. Om Prakash Mehta & Others | of any provision of the Constitution. Nor is there any question of the principles of natural justice having been violated. Indeed there may be some purpose in such a provision. It is well known that in almost all statutes regarding local bodies it is provided that applications for building licences that are not disposed of within a specified period should be deemed to have been granted. It has never been argued in those cases that it is unfair to the local bodies concerned. That is the provision of law. Let us assume that in a case like the present rule 24 (2) did not exist. Let us assume that the officer or authority dealing with the application for renewal simply sleeps over if for years. The applicant will then be in a worse position. Apparently the idea was that the officer or authority dealing with an application for renewal must dispose of it quickly and if he did not it should be deemed to have been refused thus giving an opportunity to the aggrieved party to approach the Central Government to exercise its powers of revision under Rule 54. Under Rule 55 the Central Government can call for the records from the State Government and after considering any comments made on the petition by the State Government or other authority, may confirm, modify or set aside the order or pass such other order in relation thereto as the Central Government may deem just and proper. It also provides for an opportunity to the applicant to make his representation against the comments, if any, received from the State Government or other authority. Thus the fact that the application for renewal is deemed to have been refused as a result of Rule 24 (2) does not prohibit the Central Government from passing any order it may deem just and proper including an order granting renewal. In this case the respondents did not file an application for renewal within two months of the Deputy Commissioners informing them that their application should be deemed to have been rejected, though that letter of the Deputy Commissioner itself was issued nearly nine months after their date of application. Indeed they could have filed an application for revision when they failed to get a reply within 90 days of their application for renewal. It means that it is the respondents that were not alert.11. We can see nothing unreasonable in the order passed by the Central Government. It has been mentioned in that order that after careful consideration of the facts stated in their review application it was rejected as being time barred. The application to the Central Government preferred by the respondents contained all the facts.The applications for revision have to be in form (L) appended to the Rules. It has to specify the minerals for which the revision application is filed, the details of the area in respect of which the revision application is filed and a map or plan for the area has also to be attached. There is no reason to assume that the Central Government did not apply their minds to these facts.12. We are unable to see how Rule 24 (3) and explanation to Rule 54 can be said to contravene the provisions of Section 8 of the Act. They are within the rule making powers of the Government. Clause (g) of Section 13 too enables the Government to make rules regarding the terms on which and conditions subject to which any prospecting licence or mining lease may be granted or renewed. It includes the power to make rules regarding conditions subject to which they may be refused. We do not see how the provisions of Rule 26 which lays down that where the State Government passes any order refusing to grant or renew a mining lease, it shall communicate in writing the reasons for such order militates against this conclusion. In view of the provisions of Rules 24 and 54 the only reason which the State Government can give under Rule 26 is that because 90 days are over the application should be deemed to have been refused.13. The High Courts view that Rule 24 (3) and the explanation to Rule 54 are in contravention of S. 8 is vitiated by its assumption that every order to be passed on an application for renewal should be approved by the Central Government. This is not correct. Only renewal cannot be granted without the Central Governments approval and not rejection.14. The only relevant decisions of this Court are reported in (1960) 2 SCR 775 = (AIR 1960 SC 606 ), Shivji Nathubhai v. Union of India and the decision in C. A. No. 657 of 1967, D/- 17-8-1967 (SC). In both of them it was held that the power of the Central Government under Rule 54 is a quasi-judicial power. They do not deal with the nature of the power exercised by the State Government in granting or refusing mining leases or renewals thereof. The decisions in Seeta Ramaiah v. State of Andhra Pradesh, AIR 1963 Andh Pra 54 and Shivji Nathubhai v. Union of India, AIR 1959 Punj 510 more or less take the same view of the matter as we have.15. We do not feel called upon to deal with the question whether as a result of the order passed by the Central Government there has been a merger and the application by the respondents before the High Court which did not ask for setting aside the order of the Central Government, cannot succeed as that point was not taken before the High Court; nor it is necessary to deal with the question in the view that we have taken of this case in its other aspects. In the result we hold that the High Court was in error in holding that Rule 24 (3) and the explanation to Rule 54 of the Mineral Concession Rules 1960 are contrary to the provisions of the Act and should be struck down.16 | 1[ds]12. We are unable to see how Rule 24 (3) and explanation to Rule 54 can be said to contravene the provisions of Section 8 of the Act. They are within the rule making powers of the Government. Clause (g) of Section 13 too enables the Government to make rules regarding the terms on which and conditions subject to which any prospecting licence or mining lease may be granted or renewed. It includes the power to make rules regarding conditions subject to which they may be refused. We do not see how the provisions of Rule 26 which lays down that where the State Government passes any order refusing to grant or renew a mining lease, it shall communicate in writing the reasons for such order militates against this conclusion. In view of the provisions of Rules 24 and 54 the only reason which the State Government can give under Rule 26 is that because 90 days are over the application should be deemed to have been refused.13. The High Courts view that Rule 24 (3) and the explanation to Rule 54 are in contravention of S. 8 is vitiated by its assumption that every order to be passed on an application for renewal should be approved by the Central Government. This is not correct. Only renewal cannot be granted without the Central Governments approval and not rejection.14. The only relevant decisions of this Court are reported in (1960) 2 SCR 775 = (AIR 1960 SC 606 ), Shivji Nathubhai v. Union of India and the decision in C. A. No. 657 of 1967, D/- 17-8-1967 (SC). In both of them it was held that the power of the Central Government under Rule 54 is a quasi-judicial power. They do not deal with the nature of the power exercised by the State Government in granting or refusing mining leases or renewals thereof. The decisions in Seeta Ramaiah v. State of Andhra Pradesh, AIR 1963 Andh Pra 54 and Shivji Nathubhai v. Union of India, AIR 1959 Punj 510 more or less take the same view of the matter as we have.15. We do not feel called upon to deal with the question whether as a result of the order passed by the Central Government there has been a merger and the application by the respondents before the High Court which did not ask for setting aside the order of the Central Government, cannot succeed as that point was not taken before the High Court; nor it is necessary to deal with the question in the view that we have taken of this case in its other aspects. In the result we hold that the High Court was in error in holding that Rule 24 (3) and the explanation to Rule 54 of the Mineral Concession Rules 1960 are contrary to the provisions of the Act and should be struck down. | 1 | 3,900 | 524 | ### 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:
of any provision of the Constitution. Nor is there any question of the principles of natural justice having been violated. Indeed there may be some purpose in such a provision. It is well known that in almost all statutes regarding local bodies it is provided that applications for building licences that are not disposed of within a specified period should be deemed to have been granted. It has never been argued in those cases that it is unfair to the local bodies concerned. That is the provision of law. Let us assume that in a case like the present rule 24 (2) did not exist. Let us assume that the officer or authority dealing with the application for renewal simply sleeps over if for years. The applicant will then be in a worse position. Apparently the idea was that the officer or authority dealing with an application for renewal must dispose of it quickly and if he did not it should be deemed to have been refused thus giving an opportunity to the aggrieved party to approach the Central Government to exercise its powers of revision under Rule 54. Under Rule 55 the Central Government can call for the records from the State Government and after considering any comments made on the petition by the State Government or other authority, may confirm, modify or set aside the order or pass such other order in relation thereto as the Central Government may deem just and proper. It also provides for an opportunity to the applicant to make his representation against the comments, if any, received from the State Government or other authority. Thus the fact that the application for renewal is deemed to have been refused as a result of Rule 24 (2) does not prohibit the Central Government from passing any order it may deem just and proper including an order granting renewal. In this case the respondents did not file an application for renewal within two months of the Deputy Commissioners informing them that their application should be deemed to have been rejected, though that letter of the Deputy Commissioner itself was issued nearly nine months after their date of application. Indeed they could have filed an application for revision when they failed to get a reply within 90 days of their application for renewal. It means that it is the respondents that were not alert.11. We can see nothing unreasonable in the order passed by the Central Government. It has been mentioned in that order that after careful consideration of the facts stated in their review application it was rejected as being time barred. The application to the Central Government preferred by the respondents contained all the facts.The applications for revision have to be in form (L) appended to the Rules. It has to specify the minerals for which the revision application is filed, the details of the area in respect of which the revision application is filed and a map or plan for the area has also to be attached. There is no reason to assume that the Central Government did not apply their minds to these facts.12. We are unable to see how Rule 24 (3) and explanation to Rule 54 can be said to contravene the provisions of Section 8 of the Act. They are within the rule making powers of the Government. Clause (g) of Section 13 too enables the Government to make rules regarding the terms on which and conditions subject to which any prospecting licence or mining lease may be granted or renewed. It includes the power to make rules regarding conditions subject to which they may be refused. We do not see how the provisions of Rule 26 which lays down that where the State Government passes any order refusing to grant or renew a mining lease, it shall communicate in writing the reasons for such order militates against this conclusion. In view of the provisions of Rules 24 and 54 the only reason which the State Government can give under Rule 26 is that because 90 days are over the application should be deemed to have been refused.13. The High Courts view that Rule 24 (3) and the explanation to Rule 54 are in contravention of S. 8 is vitiated by its assumption that every order to be passed on an application for renewal should be approved by the Central Government. This is not correct. Only renewal cannot be granted without the Central Governments approval and not rejection.14. The only relevant decisions of this Court are reported in (1960) 2 SCR 775 = (AIR 1960 SC 606 ), Shivji Nathubhai v. Union of India and the decision in C. A. No. 657 of 1967, D/- 17-8-1967 (SC). In both of them it was held that the power of the Central Government under Rule 54 is a quasi-judicial power. They do not deal with the nature of the power exercised by the State Government in granting or refusing mining leases or renewals thereof. The decisions in Seeta Ramaiah v. State of Andhra Pradesh, AIR 1963 Andh Pra 54 and Shivji Nathubhai v. Union of India, AIR 1959 Punj 510 more or less take the same view of the matter as we have.15. We do not feel called upon to deal with the question whether as a result of the order passed by the Central Government there has been a merger and the application by the respondents before the High Court which did not ask for setting aside the order of the Central Government, cannot succeed as that point was not taken before the High Court; nor it is necessary to deal with the question in the view that we have taken of this case in its other aspects. In the result we hold that the High Court was in error in holding that Rule 24 (3) and the explanation to Rule 54 of the Mineral Concession Rules 1960 are contrary to the provisions of the Act and should be struck down.16
### Response:
1
### Explanation:
12. We are unable to see how Rule 24 (3) and explanation to Rule 54 can be said to contravene the provisions of Section 8 of the Act. They are within the rule making powers of the Government. Clause (g) of Section 13 too enables the Government to make rules regarding the terms on which and conditions subject to which any prospecting licence or mining lease may be granted or renewed. It includes the power to make rules regarding conditions subject to which they may be refused. We do not see how the provisions of Rule 26 which lays down that where the State Government passes any order refusing to grant or renew a mining lease, it shall communicate in writing the reasons for such order militates against this conclusion. In view of the provisions of Rules 24 and 54 the only reason which the State Government can give under Rule 26 is that because 90 days are over the application should be deemed to have been refused.13. The High Courts view that Rule 24 (3) and the explanation to Rule 54 are in contravention of S. 8 is vitiated by its assumption that every order to be passed on an application for renewal should be approved by the Central Government. This is not correct. Only renewal cannot be granted without the Central Governments approval and not rejection.14. The only relevant decisions of this Court are reported in (1960) 2 SCR 775 = (AIR 1960 SC 606 ), Shivji Nathubhai v. Union of India and the decision in C. A. No. 657 of 1967, D/- 17-8-1967 (SC). In both of them it was held that the power of the Central Government under Rule 54 is a quasi-judicial power. They do not deal with the nature of the power exercised by the State Government in granting or refusing mining leases or renewals thereof. The decisions in Seeta Ramaiah v. State of Andhra Pradesh, AIR 1963 Andh Pra 54 and Shivji Nathubhai v. Union of India, AIR 1959 Punj 510 more or less take the same view of the matter as we have.15. We do not feel called upon to deal with the question whether as a result of the order passed by the Central Government there has been a merger and the application by the respondents before the High Court which did not ask for setting aside the order of the Central Government, cannot succeed as that point was not taken before the High Court; nor it is necessary to deal with the question in the view that we have taken of this case in its other aspects. In the result we hold that the High Court was in error in holding that Rule 24 (3) and the explanation to Rule 54 of the Mineral Concession Rules 1960 are contrary to the provisions of the Act and should be struck down.
|
SEEMA SAPRA Vs. COURT ON ITS OWN MOTION | the petitioner-in-person. Reasons for not accepting that prayer will be elaborated in the order to be passed as noted in our previous order dated 11.04.2019. It is open to the petitioner to file list of dates and/or any other relevant document(s), if she so desires. That be filed within two weeks. We reiterate that all aspects will be considered and appropriate orders passed on the concerned proceedings, to be pronounced later. 5. We must, at the outset, deal with the gravamen of the apprehension of the appellant as to why she has insisted for recusal of one of us (A.M. Khanwilkar, J.). Even on a liberal reading of the averments in the stated application, the apprehension of the appellant is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition. 6. We must usefully refer to Court On Its Own Motion Vs. State (paragraph 28), in which it has been observed as follows: The path of recluse is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favor affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office. It is also pertinent to remind ourselves of the dictum of Lord Denning who observed in R. Vs. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 AII ER 319 as under: All we would ask is that that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done. 7. Reverting to the present cases, it is noticed from the impugned judgment that around 28 Judges of the High Court of Delhi, who had heard the writ petition filed by the appellant, had to recuse by the time the writ petition was finally decided on 2 nd March, 2015. Even after filing of the instant criminal appeal at least three Judges of this Court have recused themselves, for one reason or the other. Not only that, the appellant had moved a formal application being I.A. No.30030 of 2018 in the present appeal to recall the order passed on 7 th February, 2018 appointing Senior Advocate Mr. Vikas Singh as Amicus Curiae, as she had strong objection to his appointment. Similarly, the appellant had filed I.A. No.111244 of 2017 for recall of order dated 27 th October, 2017 appointing Ms. Pinky Anand, learned Additional Solicitor General to assist the Court as Amicus Curiae. That application was also allowed by this Court vide order dated 4 th December, 2017. 8. Be that as it may, after the matter was assigned to this Bench during the hearing, which lasted for more than two hours on 11 th April, 2019, the appellant had orally suggested that this Bench should not hear the cases as has been noted in the said order. On that day, the Court reserved its order giving liberty to the appellant to file additional documents to reinforce her arguments on the merits of the contempt proceedings, as insisted by her during the oral submission. Instead of availing of that liberty, the appellant chose to file I.A. No.62789 of 2019 in Writ Petition (C) No.13 of 2018 praying for recusal of one of us (A.M. Khanwilkar, J.). However, keeping in mind the totality of the situation, the Court declined her prayer as recorded in the order dated 12 th July, 2019. 9. Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India (2016) 5 SCC 808. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more. 10. Reverting to the criminal appeal, after hearing the parties and the same being a statutory appeal preferred by the appellant against the finding of guilt and punishment under the Contempt of Courts Act, 1971, the same requires due consideration although there is a delay of 32 days as stated in I.A. No.128666 of 2017. | 1[ds]5. We must, at the outset, deal with the gravamen of the apprehension of the appellant as to why she has insisted for recusal of one of us (A.M. Khanwilkar, J.). Even on a liberal reading of the averments in the stated application, the apprehension of the appellant is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition9. Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India (2016) 5 SCC 808. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more10. Reverting to the criminal appeal, after hearing the parties and the same being a statutory appeal preferred by the appellant against the finding of guilt and punishment under the Contempt of Courts Act, 1971, the same requires due consideration although there is a delay of 32 days as stated in I.A. No.128666 of 201714. By this application, appellant has prayed that the order dated 7 th February, 2018 appointing Senior Advocate Mr. Vikas Singh be. That prayer has been granted in terms of order dated 30 th July, 2018 passed by the Court. The other relief claimed in the application is to issue notice to the office of the Attorney General for India, which is similar to one made in another application filed by the appellant. As the criminal appeal has been admitted, the Registry shall proceed in the matter as per the Rules. Hence, no further orders are required in that regard15. The appellant has then prayed for giving a qualified lawyer; to give appellant a full and fair hearing in the matter. The record shows that fair hearing has been given to the appellant thus far; and it would be extended even after admission of the appeal. No formal order is required in that regardThis prayer, to say the least, is premature. For, so long as the Court does not take up the appeal for final hearing, the question of referring the matter to a Five Judge Constitution Bench that too before the appeal is admitted cannot be countenancedThe grievance in this application is founded on some clerical error in the order passed by this Court in the past. It is seen that the same has been rectified20. We are of the view that no general direction to the Registry as prayed is warranted. Inasmuch as, the Registry is required to maintain and secure the record of all cases as per the Rules and if there is some error in the records, it is always open to the parties to bring it to the notice of the Court. As and when such occasion arises in future, appropriate direction can be given by the CourtThe same were filed before the High Court of Delhi in Writ Petition (C) No.1280 of 2012 on behalf of General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited22. As regards the contempt proceedings, in relation to which the instant criminal appeal arises, the question is limited to the utterances made by the appellant before the High Court on 6 th May, 2014; and as to whether the same would constitute criminal contempt in the face of the Court. No other issue is required to be considered. Suffice it to observe that the stated documents have no relevance to the question required to be answered in the present criminal appeal regarding the alleged utterances made by the appellant before the Delhi High CourtWrit Petition (C) No.13 ofr Article 32 of the Constitution of India)Pursuant to the aforementioned order the petitioner was free to approach the office of the concerned Commissioner of Police and seek police protection if she apprehended danger to her life. If the authorities had failed to take necessary action despite such request made by her, it was and will be open to the petitioner to pursue appropriate remedy in that regard. During the course of hearing, we were informed by the petitioner that she has filed a writ petition in the Delhi High Court. In that case, the petitioner may pursue that remedy to its logical end. If the relief claimed in the said writ petition is insufficient, it will be open to the petitioner to amend the said writ petition and/or to file a substantive writ petition if fresh cause of action has arisenAs regards the prayer to direct that the cases be not listed before a Bench comprising of Justice A.M. Khanwilkar, the same has already been rejected in the earlier part of this order. The prayer for recall of order dated 11 th April, 2019 and for hearing of cases in open Court also stands redressed as the matters were heard in open Court on 12 th July, 2019Writ Petition (C) No.1027 of 201832. As noted while disposing of the accompanying writ petition, we deem it appropriate to dispose of even this writ petition with liberty to the petitioner to pursue remedy before the Delhi High Court, already filed by the petitioner. In our opinion, it may not be appropriate to permit the petitioner to approach different forums for overlapping issues concerning her security or her grievance regarding inaction of the Authorities to process her complaint regarding sexual harassment. | 1 | 1,855 | 1,149 | ### 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:
the petitioner-in-person. Reasons for not accepting that prayer will be elaborated in the order to be passed as noted in our previous order dated 11.04.2019. It is open to the petitioner to file list of dates and/or any other relevant document(s), if she so desires. That be filed within two weeks. We reiterate that all aspects will be considered and appropriate orders passed on the concerned proceedings, to be pronounced later. 5. We must, at the outset, deal with the gravamen of the apprehension of the appellant as to why she has insisted for recusal of one of us (A.M. Khanwilkar, J.). Even on a liberal reading of the averments in the stated application, the apprehension of the appellant is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition. 6. We must usefully refer to Court On Its Own Motion Vs. State (paragraph 28), in which it has been observed as follows: The path of recluse is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favor affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office. It is also pertinent to remind ourselves of the dictum of Lord Denning who observed in R. Vs. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 AII ER 319 as under: All we would ask is that that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done. 7. Reverting to the present cases, it is noticed from the impugned judgment that around 28 Judges of the High Court of Delhi, who had heard the writ petition filed by the appellant, had to recuse by the time the writ petition was finally decided on 2 nd March, 2015. Even after filing of the instant criminal appeal at least three Judges of this Court have recused themselves, for one reason or the other. Not only that, the appellant had moved a formal application being I.A. No.30030 of 2018 in the present appeal to recall the order passed on 7 th February, 2018 appointing Senior Advocate Mr. Vikas Singh as Amicus Curiae, as she had strong objection to his appointment. Similarly, the appellant had filed I.A. No.111244 of 2017 for recall of order dated 27 th October, 2017 appointing Ms. Pinky Anand, learned Additional Solicitor General to assist the Court as Amicus Curiae. That application was also allowed by this Court vide order dated 4 th December, 2017. 8. Be that as it may, after the matter was assigned to this Bench during the hearing, which lasted for more than two hours on 11 th April, 2019, the appellant had orally suggested that this Bench should not hear the cases as has been noted in the said order. On that day, the Court reserved its order giving liberty to the appellant to file additional documents to reinforce her arguments on the merits of the contempt proceedings, as insisted by her during the oral submission. Instead of availing of that liberty, the appellant chose to file I.A. No.62789 of 2019 in Writ Petition (C) No.13 of 2018 praying for recusal of one of us (A.M. Khanwilkar, J.). However, keeping in mind the totality of the situation, the Court declined her prayer as recorded in the order dated 12 th July, 2019. 9. Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India (2016) 5 SCC 808. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more. 10. Reverting to the criminal appeal, after hearing the parties and the same being a statutory appeal preferred by the appellant against the finding of guilt and punishment under the Contempt of Courts Act, 1971, the same requires due consideration although there is a delay of 32 days as stated in I.A. No.128666 of 2017.
### Response:
1
### Explanation:
is founded on the allegation that she may not get justice from the Bench as Justice A.M. Khanwilkar is well acquainted with the Advocates who incidentally are members of the Supreme Court Bar Association against whom personal allegations have been made by her in the accompanying writ petition9. Indubitably, it is always open for a Judge to recuse at his own volition from a case entrusted to him by the Chief Justice. But, that may be a matter of his own choosing. Recusal, at the asking of the litigating party, cannot be countenanced unless it deserves due consideration and is justified. We draw support from the exposition of the Constitution Bench in Supreme Court Advocates-On-Record Association and Another Vs. Union of India (2016) 5 SCC 808. It must never be forgotten that an impartial Judge is the quintessence for a fair trial and one should not hesitate to recuse if there are just and reasonable grounds. At the same time, one cannot be oblivious of the duty of a Judge which is to discharge his responsibility with absolute earnestness, sincerity and being true to the oath of his/her office. After perusal of the assertions made in the stated I.A.s, we have no hesitation in observing that the same are devoid of merit and without any substance. To observe sobriety, however, we say no more10. Reverting to the criminal appeal, after hearing the parties and the same being a statutory appeal preferred by the appellant against the finding of guilt and punishment under the Contempt of Courts Act, 1971, the same requires due consideration although there is a delay of 32 days as stated in I.A. No.128666 of 201714. By this application, appellant has prayed that the order dated 7 th February, 2018 appointing Senior Advocate Mr. Vikas Singh be. That prayer has been granted in terms of order dated 30 th July, 2018 passed by the Court. The other relief claimed in the application is to issue notice to the office of the Attorney General for India, which is similar to one made in another application filed by the appellant. As the criminal appeal has been admitted, the Registry shall proceed in the matter as per the Rules. Hence, no further orders are required in that regard15. The appellant has then prayed for giving a qualified lawyer; to give appellant a full and fair hearing in the matter. The record shows that fair hearing has been given to the appellant thus far; and it would be extended even after admission of the appeal. No formal order is required in that regardThis prayer, to say the least, is premature. For, so long as the Court does not take up the appeal for final hearing, the question of referring the matter to a Five Judge Constitution Bench that too before the appeal is admitted cannot be countenancedThe grievance in this application is founded on some clerical error in the order passed by this Court in the past. It is seen that the same has been rectified20. We are of the view that no general direction to the Registry as prayed is warranted. Inasmuch as, the Registry is required to maintain and secure the record of all cases as per the Rules and if there is some error in the records, it is always open to the parties to bring it to the notice of the Court. As and when such occasion arises in future, appropriate direction can be given by the CourtThe same were filed before the High Court of Delhi in Writ Petition (C) No.1280 of 2012 on behalf of General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited22. As regards the contempt proceedings, in relation to which the instant criminal appeal arises, the question is limited to the utterances made by the appellant before the High Court on 6 th May, 2014; and as to whether the same would constitute criminal contempt in the face of the Court. No other issue is required to be considered. Suffice it to observe that the stated documents have no relevance to the question required to be answered in the present criminal appeal regarding the alleged utterances made by the appellant before the Delhi High CourtWrit Petition (C) No.13 ofr Article 32 of the Constitution of India)Pursuant to the aforementioned order the petitioner was free to approach the office of the concerned Commissioner of Police and seek police protection if she apprehended danger to her life. If the authorities had failed to take necessary action despite such request made by her, it was and will be open to the petitioner to pursue appropriate remedy in that regard. During the course of hearing, we were informed by the petitioner that she has filed a writ petition in the Delhi High Court. In that case, the petitioner may pursue that remedy to its logical end. If the relief claimed in the said writ petition is insufficient, it will be open to the petitioner to amend the said writ petition and/or to file a substantive writ petition if fresh cause of action has arisenAs regards the prayer to direct that the cases be not listed before a Bench comprising of Justice A.M. Khanwilkar, the same has already been rejected in the earlier part of this order. The prayer for recall of order dated 11 th April, 2019 and for hearing of cases in open Court also stands redressed as the matters were heard in open Court on 12 th July, 2019Writ Petition (C) No.1027 of 201832. As noted while disposing of the accompanying writ petition, we deem it appropriate to dispose of even this writ petition with liberty to the petitioner to pursue remedy before the Delhi High Court, already filed by the petitioner. In our opinion, it may not be appropriate to permit the petitioner to approach different forums for overlapping issues concerning her security or her grievance regarding inaction of the Authorities to process her complaint regarding sexual harassment.
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Tara Devi Aggarwal Vs. Commissioner Of Income-Tax, West Bengal,Calcutta | circumstances of the case, the Tribunal was right in holding that there were no materials before the Commissioner to justify his finding that the assessment order for 1960-61 was erroneous in so far as it was prejudicial to the interests of the revenue ? Apart from these, a further question which will be referred to as the third question, was also referred, at the instance of the assessee, namely.3. Whether the Commissioner of Income-tax could lawfully initiate proceedings under Section 33-B of the Indian Income-tax Act, 1922 on the 25th June, 1963, notwithstanding the repeal of the aforesaid Act by the Income-tax Act, 1961 with effect from the 1st of April, 1962 ?The High Court declined to answer the first question as in its view it was merely academic. The assessee did not press for an answer on the third question. The only other question, therefore, was the second one which was answered against the assessee on the ground that the Income-tax Officer had no jurisdiction to make the order which itself would have been sufficient for the Commissioner to set aside the assessment. In this view of the matter, it head that there were materials before the Commissioner to justify his finding that the order of assessment for the year 1960-61 was erroneous in so far as it is prejudicial to the interests of revenue. It however did not pronounce any opinion on the question whether the Commissioner could have considered materials of the previous year in arriving at his conclusion in respect of the assessment for the year 1960-61.5. The learned advocate for the assessee contends that under Section 33B the Commissioner had no jurisdiction to cancel the assessment made by the Income-tax Officer inasmuch as it cannot be said that where an assessee has been assessed to tax it was prejudicial to the interests of revenue on the ground that no assessment could have been made in respect of the income of which she made a voluntary return. This contention in our view is unwarranted by the language of S. 33B. The words of the section enable the Commissioner to call for and examine the record of any proceeding under the Act and to pass such orders as he deems necessary as the circumstances of the case justify when he considers the order passed was erroneous in so far as it is prejudicial to the interests of the revenue. It is not, as submitted by the learned advocate, prejudicial to the interests of the revenue only if it is found that the assessment for the year was disclosed (sic) on the basis that an income had been earned which is assessable. Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to enable someone else who would have been assessed to a larger amount an assessment so made can certainly be erroneous and prejudicial to the interests of the revenue. It so-and we think it is so-the Commissioner under S. 33B has ample jurisdiction to cancel the assessment and may initiate proceedings for assessment under the provisions of the Act against some other assessee who according to the income-tax authorities is liable for the income thereof Rampyari Devi Saraogi v. Commr. of Income-tax, 87 ITR 84 (Cal) lends support to this view. In that case, this Court in similar circumstances held that the Commissioner had jurisdiction under S. 33B of the Act. It appears the Commissioner of Income-tax West Bengal had on enquiries made by the department stated in the notice to the assessee that he neither resided for carried on any business declared in the returns and had found that the Income-tax Officer was not justified in accepting the initial capital, the gift received and sale of jewellery and the income from business without any enquiry or evidence whatsoever. It appeared in that case, as in this case, the assessee had given a fictitious address in order to invest the jurisdiction on a particular Income-tax Officer to make the assessment. While agreeing with the High Court that all this material was supporting material and did not constitute the basic grounds on which the order under S. 33B were passed by the Commissioner, this Court held that there was ample material to show that the Income-tax Officer made the assessment in undue hurry; that the assessee was a new assessee and filed voluntary returns in respect of a number of years i.e. from assessment years 1952-53 to 1960-61. The other circumstances also were similar in nature to those in this case.6. The learned advocate further referred to the case of Commr. of Income-tax v. Rao Thakur Narayan Singh, 56 ITR 234 = (AIR 1965 SC 1421 ) in support of his submission that past assessments against the assessee were final and cannot be relied upon for the purpose of exercising jurisdiction under S. 33B. A reference to the case cited by him however would show that no steps had been taken under S. 35 to rectify the mistake in the order of the Appellate Tribunal nor was any reference to the High Court sought against that order but nonetheless the Income-tax Officer initiated, fresh assessment proceedings under section 34 with respect to interest income and made a fresh assessment to include that income. In these circumstances it was held that where the order of the Appellate Tribunal became final the Income-tax Officer could not initiate re-assessment proceedings even in respect of interest income which was binding on him and he could not therefore re-open the assessment to include that income. "If that were not the legal position", this Court observed, it "would be placing an unrestricted power of review in the hands of the Income-tax Officer to go behind, the findings given by a hierarchy of Tribunals and even those of the High Court and Supreme Court with its changing moods." This case therefore is of little assistance. I | 0[ds]High Court declined to answer the first question as in its view it was merely academic. The assessee did not press for an answer on the third question. The only other question, therefore, was the second one which was answered against the assessee on the ground that the Income-tax Officer had no jurisdiction to make the order which itself would have been sufficient for the Commissioner to set aside the assessment. In this view of the matter, it head that there were materials before the Commissioner to justify his finding that the order of assessment for the year 1960-61 was erroneous in so far as it is prejudicial to the interests of revenue. It however did not pronounce any opinion on the question whether the Commissioner could have considered materials of the previous year in arriving at his conclusion in respect of the assessment for the year 1960-61.The learned advocate for the assessee contends that under Section 33B the Commissioner had no jurisdiction to cancel the assessment made by the Income-tax Officer inasmuch as it cannot be said that where an assessee has been assessed to tax it was prejudicial to the interests of revenue on the ground that no assessment could have been made in respect of the income of which she made a voluntary return.This contention in our view is unwarranted by the language of S. 33B. The words of the section enable the Commissioner to call for and examine the record of any proceeding under the Act and to pass such orders as he deems necessary as the circumstances of the case justify when he considers the order passed was erroneous in so far as it is prejudicial to the interests of the revenue. It is not, as submitted by the learned advocate, prejudicial to the interests of the revenue only if it is found that the assessment for the year was disclosed (sic) on the basis that an income had been earned which is assessable. Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to enable someone else who would have been assessed to a larger amount an assessment so made can certainly be erroneous and prejudicial to the interests of the revenue. It so-and we think it is so-the Commissioner under S. 33B has ample jurisdiction to cancel the assessment and may initiate proceedings for assessment under the provisions of the Act against some other assessee who according to the income-tax authorities is liable for the income thereof Rampyari Devi Saraogi v. Commr. of Income-tax, 87 ITR 84 (Cal) lends support to this view. In that case, this Court in similar circumstances held that the Commissioner had jurisdiction under S. 33B of the Act. It appears the Commissioner of Income-tax West Bengal had on enquiries made by the department stated in the notice to the assessee that he neither resided for carried on any business declared in the returns and had found that the Income-tax Officer was not justified in accepting the initial capital, the gift received and sale of jewellery and the income from business without any enquiry or evidence whatsoever. It appeared in that case, as in this case, the assessee had given a fictitious address in order to invest the jurisdiction on a particular Income-tax Officer to make the assessment. While agreeing with the High Court that all this material was supporting material and did not constitute the basic grounds on which the order under S. 33B were passed by the Commissioner, this Court held that there was ample material to show that the Income-tax Officer made the assessment in undue hurry; that the assessee was a new assessee and filed voluntary returns in respect of a number of years i.e. from assessment years 1952-53 to 1960-61. The other circumstances also were similar in nature to those in this case.6.The learned advocate further referred to the case of Commr. of Income-tax v. Rao Thakur Narayan Singh, 56 ITR 234 = (AIR 1965 SC 1421 ) in support of his submission that past assessments against the assessee were final and cannot be relied upon for the purpose of exercising jurisdiction under S. 33B. A reference to the case cited by him however would show that no steps had been taken under S. 35 to rectify the mistake in the order of the Appellate Tribunal nor was any reference to the High Court sought against that order but nonetheless the Income-tax Officer initiated, fresh assessment proceedings under section 34 with respect to interest income and made a fresh assessment to include that income.In these circumstances it was held that where the order of the Appellate Tribunal became final the Income-tax Officer could not initiate re-assessment proceedings even in respect of interest income which was binding on him and he could not therefore re-open the assessment to include that income. "If that were not the legal position", this Court observed, it "would be placing an unrestricted power of review in the hands of the Income-tax Officer to go behind, the findings given by a hierarchy of Tribunals and even those of the High Court and Supreme Court with its changing moods." This case therefore is of little assistance. | 0 | 2,946 | 935 | ### 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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circumstances of the case, the Tribunal was right in holding that there were no materials before the Commissioner to justify his finding that the assessment order for 1960-61 was erroneous in so far as it was prejudicial to the interests of the revenue ? Apart from these, a further question which will be referred to as the third question, was also referred, at the instance of the assessee, namely.3. Whether the Commissioner of Income-tax could lawfully initiate proceedings under Section 33-B of the Indian Income-tax Act, 1922 on the 25th June, 1963, notwithstanding the repeal of the aforesaid Act by the Income-tax Act, 1961 with effect from the 1st of April, 1962 ?The High Court declined to answer the first question as in its view it was merely academic. The assessee did not press for an answer on the third question. The only other question, therefore, was the second one which was answered against the assessee on the ground that the Income-tax Officer had no jurisdiction to make the order which itself would have been sufficient for the Commissioner to set aside the assessment. In this view of the matter, it head that there were materials before the Commissioner to justify his finding that the order of assessment for the year 1960-61 was erroneous in so far as it is prejudicial to the interests of revenue. It however did not pronounce any opinion on the question whether the Commissioner could have considered materials of the previous year in arriving at his conclusion in respect of the assessment for the year 1960-61.5. The learned advocate for the assessee contends that under Section 33B the Commissioner had no jurisdiction to cancel the assessment made by the Income-tax Officer inasmuch as it cannot be said that where an assessee has been assessed to tax it was prejudicial to the interests of revenue on the ground that no assessment could have been made in respect of the income of which she made a voluntary return. This contention in our view is unwarranted by the language of S. 33B. The words of the section enable the Commissioner to call for and examine the record of any proceeding under the Act and to pass such orders as he deems necessary as the circumstances of the case justify when he considers the order passed was erroneous in so far as it is prejudicial to the interests of the revenue. It is not, as submitted by the learned advocate, prejudicial to the interests of the revenue only if it is found that the assessment for the year was disclosed (sic) on the basis that an income had been earned which is assessable. Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to enable someone else who would have been assessed to a larger amount an assessment so made can certainly be erroneous and prejudicial to the interests of the revenue. It so-and we think it is so-the Commissioner under S. 33B has ample jurisdiction to cancel the assessment and may initiate proceedings for assessment under the provisions of the Act against some other assessee who according to the income-tax authorities is liable for the income thereof Rampyari Devi Saraogi v. Commr. of Income-tax, 87 ITR 84 (Cal) lends support to this view. In that case, this Court in similar circumstances held that the Commissioner had jurisdiction under S. 33B of the Act. It appears the Commissioner of Income-tax West Bengal had on enquiries made by the department stated in the notice to the assessee that he neither resided for carried on any business declared in the returns and had found that the Income-tax Officer was not justified in accepting the initial capital, the gift received and sale of jewellery and the income from business without any enquiry or evidence whatsoever. It appeared in that case, as in this case, the assessee had given a fictitious address in order to invest the jurisdiction on a particular Income-tax Officer to make the assessment. While agreeing with the High Court that all this material was supporting material and did not constitute the basic grounds on which the order under S. 33B were passed by the Commissioner, this Court held that there was ample material to show that the Income-tax Officer made the assessment in undue hurry; that the assessee was a new assessee and filed voluntary returns in respect of a number of years i.e. from assessment years 1952-53 to 1960-61. The other circumstances also were similar in nature to those in this case.6. The learned advocate further referred to the case of Commr. of Income-tax v. Rao Thakur Narayan Singh, 56 ITR 234 = (AIR 1965 SC 1421 ) in support of his submission that past assessments against the assessee were final and cannot be relied upon for the purpose of exercising jurisdiction under S. 33B. A reference to the case cited by him however would show that no steps had been taken under S. 35 to rectify the mistake in the order of the Appellate Tribunal nor was any reference to the High Court sought against that order but nonetheless the Income-tax Officer initiated, fresh assessment proceedings under section 34 with respect to interest income and made a fresh assessment to include that income. In these circumstances it was held that where the order of the Appellate Tribunal became final the Income-tax Officer could not initiate re-assessment proceedings even in respect of interest income which was binding on him and he could not therefore re-open the assessment to include that income. "If that were not the legal position", this Court observed, it "would be placing an unrestricted power of review in the hands of the Income-tax Officer to go behind, the findings given by a hierarchy of Tribunals and even those of the High Court and Supreme Court with its changing moods." This case therefore is of little assistance. I
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High Court declined to answer the first question as in its view it was merely academic. The assessee did not press for an answer on the third question. The only other question, therefore, was the second one which was answered against the assessee on the ground that the Income-tax Officer had no jurisdiction to make the order which itself would have been sufficient for the Commissioner to set aside the assessment. In this view of the matter, it head that there were materials before the Commissioner to justify his finding that the order of assessment for the year 1960-61 was erroneous in so far as it is prejudicial to the interests of revenue. It however did not pronounce any opinion on the question whether the Commissioner could have considered materials of the previous year in arriving at his conclusion in respect of the assessment for the year 1960-61.The learned advocate for the assessee contends that under Section 33B the Commissioner had no jurisdiction to cancel the assessment made by the Income-tax Officer inasmuch as it cannot be said that where an assessee has been assessed to tax it was prejudicial to the interests of revenue on the ground that no assessment could have been made in respect of the income of which she made a voluntary return.This contention in our view is unwarranted by the language of S. 33B. The words of the section enable the Commissioner to call for and examine the record of any proceeding under the Act and to pass such orders as he deems necessary as the circumstances of the case justify when he considers the order passed was erroneous in so far as it is prejudicial to the interests of the revenue. It is not, as submitted by the learned advocate, prejudicial to the interests of the revenue only if it is found that the assessment for the year was disclosed (sic) on the basis that an income had been earned which is assessable. Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to enable someone else who would have been assessed to a larger amount an assessment so made can certainly be erroneous and prejudicial to the interests of the revenue. It so-and we think it is so-the Commissioner under S. 33B has ample jurisdiction to cancel the assessment and may initiate proceedings for assessment under the provisions of the Act against some other assessee who according to the income-tax authorities is liable for the income thereof Rampyari Devi Saraogi v. Commr. of Income-tax, 87 ITR 84 (Cal) lends support to this view. In that case, this Court in similar circumstances held that the Commissioner had jurisdiction under S. 33B of the Act. It appears the Commissioner of Income-tax West Bengal had on enquiries made by the department stated in the notice to the assessee that he neither resided for carried on any business declared in the returns and had found that the Income-tax Officer was not justified in accepting the initial capital, the gift received and sale of jewellery and the income from business without any enquiry or evidence whatsoever. It appeared in that case, as in this case, the assessee had given a fictitious address in order to invest the jurisdiction on a particular Income-tax Officer to make the assessment. While agreeing with the High Court that all this material was supporting material and did not constitute the basic grounds on which the order under S. 33B were passed by the Commissioner, this Court held that there was ample material to show that the Income-tax Officer made the assessment in undue hurry; that the assessee was a new assessee and filed voluntary returns in respect of a number of years i.e. from assessment years 1952-53 to 1960-61. The other circumstances also were similar in nature to those in this case.6.The learned advocate further referred to the case of Commr. of Income-tax v. Rao Thakur Narayan Singh, 56 ITR 234 = (AIR 1965 SC 1421 ) in support of his submission that past assessments against the assessee were final and cannot be relied upon for the purpose of exercising jurisdiction under S. 33B. A reference to the case cited by him however would show that no steps had been taken under S. 35 to rectify the mistake in the order of the Appellate Tribunal nor was any reference to the High Court sought against that order but nonetheless the Income-tax Officer initiated, fresh assessment proceedings under section 34 with respect to interest income and made a fresh assessment to include that income.In these circumstances it was held that where the order of the Appellate Tribunal became final the Income-tax Officer could not initiate re-assessment proceedings even in respect of interest income which was binding on him and he could not therefore re-open the assessment to include that income. "If that were not the legal position", this Court observed, it "would be placing an unrestricted power of review in the hands of the Income-tax Officer to go behind, the findings given by a hierarchy of Tribunals and even those of the High Court and Supreme Court with its changing moods." This case therefore is of little assistance.
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Nani Gopal Paul Vs. Tarakeswar Prasad Singh | K. Ramaswamy & B.L. Hansaria, JJ. 1. Leave granted. 2. In Suit No.2 of 1966 filed by United Bank of India against Hanuman Foundries Ltd. for foreclosure and sale of hypothicated property, pursuant to a preliminary decree, the court receiver sold the hypothica at which the appellant became highest bidder for Rs. 60 lakhs and he paid a sum of Rs.5 lakhs. The sale was confirmed in his favour on August 29, 1990. Thereafter respondents No.1 and 2 were sought to be impleaded to the suit but denied by the single Judge. On appeal, while impleading them, the Division Bench directed the single Judge to hear the respondents before they are ejected from the property in question by order dated 2.3.92 which is the subject-matter of this appeal.3. While disposing of the appeal, the Division Bench has pointed out that the sale was vitiated due to the manner in which the single Judge dealing with Company Law matters, passed the orders in his Chamber by observing thus : "It would be sufficient for this court, if we make our observations to deprecate the way His Lordship took up the matter on various dates subsequent to the passing of the decree and sought to pass various orders relating to sale of the property in favour of the intending purchaser Nani Gopal Paul and others at a price of Rs.60 lakhs, when there were other offers on the field of a higher denomination and magnitude. Judicial property prevents us from making further comments in respect of the manner His Lordship directed Mr. Gour Roychoudhury, the Receiver to make the choice relating to the intending purchaser with full rights to make a contract with the intending purchaser in the manner it was so done. If there were other offers on the field, the court would have been vigilant enough to scrutinise such offers whatever they were worth and there ought to have been a due application of mind in this particular perspective.Sadly enough that was not so done in the present case." 4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21 Rule 89 or 90 or under S.48, CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal. | 1[ds]4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21 Rule 89 or 90 or under S.48, CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal. | 1 | 560 | 198 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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K. Ramaswamy & B.L. Hansaria, JJ. 1. Leave granted. 2. In Suit No.2 of 1966 filed by United Bank of India against Hanuman Foundries Ltd. for foreclosure and sale of hypothicated property, pursuant to a preliminary decree, the court receiver sold the hypothica at which the appellant became highest bidder for Rs. 60 lakhs and he paid a sum of Rs.5 lakhs. The sale was confirmed in his favour on August 29, 1990. Thereafter respondents No.1 and 2 were sought to be impleaded to the suit but denied by the single Judge. On appeal, while impleading them, the Division Bench directed the single Judge to hear the respondents before they are ejected from the property in question by order dated 2.3.92 which is the subject-matter of this appeal.3. While disposing of the appeal, the Division Bench has pointed out that the sale was vitiated due to the manner in which the single Judge dealing with Company Law matters, passed the orders in his Chamber by observing thus : "It would be sufficient for this court, if we make our observations to deprecate the way His Lordship took up the matter on various dates subsequent to the passing of the decree and sought to pass various orders relating to sale of the property in favour of the intending purchaser Nani Gopal Paul and others at a price of Rs.60 lakhs, when there were other offers on the field of a higher denomination and magnitude. Judicial property prevents us from making further comments in respect of the manner His Lordship directed Mr. Gour Roychoudhury, the Receiver to make the choice relating to the intending purchaser with full rights to make a contract with the intending purchaser in the manner it was so done. If there were other offers on the field, the court would have been vigilant enough to scrutinise such offers whatever they were worth and there ought to have been a due application of mind in this particular perspective.Sadly enough that was not so done in the present case." 4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21 Rule 89 or 90 or under S.48, CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal.
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4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21 Rule 89 or 90 or under S.48, CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal.
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Commissioner of Income Tax Vs. Bombay Dyeing and Manufacturing Company Limited | It was held by this court that it was an expenditure deductible under section 10(2)(xv) of the Income-tax Act. It was held that the transaction of acquisition of the asset was closely related to the commencement and carrying on of the assessees business and, therefore, interest paid on the unpaid balance of the consideration for the assets acquired had, in the normal course, to be regarded as expenditure for the purpose of the business which was carried on in the accounting periods. In the course of the judgment, this court referred to the earlier decision of this courtin State of Madras v. G. J. Coelho, wherein it was held that the interest on the amount borrowed for acquiring a capital asset is deductible as revenue expenditure. It is true, that in the said decision, this court reaffirmed the well-established principle that any expenditure laid out for acquiring an asset of a permanent character would be capital expenditure, held at the same time that inasmuch as the acquisition of the other company was in the course of carrying on of the assessees business, the interest paid thereon was deductible under section 10(2)(xv) of the Act. In this case too, the Tribunal has recorded a finding that the acquisition of Nawrosjee Wadia Ginning and Pressing Company was necessary for the smooth and efficient conduct of the assessees business. Following the ratio of the aforementioned decisions of the court, we hold that the expenditure incurred towards professional charges of the solicitors firm for the services rendered in connection with the said amalgamation was in the course of carrying on of the assessees business and, therefore, deductible as a revenue expenditure. In this view of the matter, it is not necessary for us to deal with the other decisions cited before us on this questionNow, coming to the second question, the finding of the Tribunal is that the amount of Rs. 2, 25, 000 was contributed by the assessee to the Maharashtra Housing Board towards construction of tenements for the companys workers. It was contended by the assessee that the said expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constitutes legitimate business expenditure. The Income-tax Officer and the Appellate Assistant Commissioner rejected the plea, The Tribunal, however, upheld the assessees contention holding that the expenditure in question brought into existence no capital asset to the assessee-company as the tenements remained the property and the assets of the Housing Board. The assessee-company acquired no ownership rights in the said tenements, it held. The Tribunal found further that there was no obligation on the assessee-company to provide its workers tenements constructed by the Housing Board and that the benefit of better and cheaper housing in this case obtained by the industrial workers of the assessee-company did not constitute a direct benefit of an enduring nature to the assessee. The expenditure, it observed, was incurred merely with a view to carry on the business of the assessee-company more efficiently by having a contented labour force. 3. Dr. V. Gaurishankar, learned counsel for the Revenue, places strong reliance upon the decision of this court in Travancore-Cochin Chemicals Ltd. v. CIT. The facts of the case are the following : The assessee-company was receiving and despatching material required for its purposes through trucks. The approach road to its premises was not a pucca road and was causing difficulties and inconvenience on several occasions. Along with three other public undertakings, the assessee approached the Kerala Government for laying a new road to that area. While the Government bore the cost of acquisition of land and part of the cost of construction of the road, the remaining cost was met by four companies including the assessee. The question was whether the said expenditure is allowable as a revenue expenditure. This court held that by having the new road constructed for the improvement of transport facilities, the appellant had acquired an enduring advantage for its business and, therefore, the expenditure incurred by the assessee was of a capital nature. Dr. Gauri Shankar says the principle of the said decision is equally applicable herein inasmuch as provision for better housing to the assessees workers was ultimately a benefit and an enduring benefit to the assessee. On the other hand, learned counsel for the assessee brought to our notice a later decision of this court in L. H. Sugar Factory and Oil Mills (P.) Ltd. v. CIT where, after discussing the facts and the principle of the decision in Travancore-Cochin Chemicals case (SC), it has been held that the ratio of the said decision must be confined to the peculiar facts of that case alone for reasons assigned in that behalf. The decision in L. H. Sugar Factory and Oil Mills case was also a case where certain expenditure was incurred towards part of the cost of construction of the roads in the area around the factory and it was held that it was a business expenditure. Our attention is also invited to an order of this court in CIT v. T. V. Sundaram Iyengar and Sons Pvt. Ltd., wherein it has been held that the amount advanced by the assessee for construction of houses under a subsidised industrial scheme for its employees is in the nature of a revenue expenditure. In this case too, the amount was advanced to the Government which purchased the land in its own name and the buildings constructed thereon became the property of the Government and not of the assessee. Having regard to the facts of the appeals before us and in the light of the findings recorded by the Tribunal, we think that the principle of L. H. Sugar Factory and Oil Mills case (SC) and CIT v. T. V. Sundaram Iyengar and Sons P. Ltd. (SC) is more appropriate than the principles in Travancore-Cochin Chemicals case (SC)We are, therefore, of the opinion that the High Court was justified in rejecting the application under section 256(2) of the Income-tax Act. 4. | 0[ds]Our attention is also invited to an order of this court in CIT v. T. V. Sundaram Iyengar and Sons Pvt. Ltd., wherein it has been held that the amount advanced by the assessee for construction of houses under a subsidised industrial scheme for its employees is in the nature of a revenue expenditure. In this case too, the amount was advanced to the Government which purchased the land in its own name and the buildings constructed thereon became the property of the Government and not of the assessee. Having regard to the facts of the appeals before us and in the light of the findings recorded by the Tribunal, we think that the principle of L. H. Sugar Factory and Oil Mills case (SC) and CIT v. T. V. Sundaram Iyengar and Sons P. Ltd. (SC) is more appropriate than the principles in Travancore-Cochin Chemicals casee are, therefore, of the opinion that the High Court was justified in rejecting the application under section 256(2) of the Income-tax Act. | 0 | 1,703 | 189 | ### 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 was held by this court that it was an expenditure deductible under section 10(2)(xv) of the Income-tax Act. It was held that the transaction of acquisition of the asset was closely related to the commencement and carrying on of the assessees business and, therefore, interest paid on the unpaid balance of the consideration for the assets acquired had, in the normal course, to be regarded as expenditure for the purpose of the business which was carried on in the accounting periods. In the course of the judgment, this court referred to the earlier decision of this courtin State of Madras v. G. J. Coelho, wherein it was held that the interest on the amount borrowed for acquiring a capital asset is deductible as revenue expenditure. It is true, that in the said decision, this court reaffirmed the well-established principle that any expenditure laid out for acquiring an asset of a permanent character would be capital expenditure, held at the same time that inasmuch as the acquisition of the other company was in the course of carrying on of the assessees business, the interest paid thereon was deductible under section 10(2)(xv) of the Act. In this case too, the Tribunal has recorded a finding that the acquisition of Nawrosjee Wadia Ginning and Pressing Company was necessary for the smooth and efficient conduct of the assessees business. Following the ratio of the aforementioned decisions of the court, we hold that the expenditure incurred towards professional charges of the solicitors firm for the services rendered in connection with the said amalgamation was in the course of carrying on of the assessees business and, therefore, deductible as a revenue expenditure. In this view of the matter, it is not necessary for us to deal with the other decisions cited before us on this questionNow, coming to the second question, the finding of the Tribunal is that the amount of Rs. 2, 25, 000 was contributed by the assessee to the Maharashtra Housing Board towards construction of tenements for the companys workers. It was contended by the assessee that the said expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constitutes legitimate business expenditure. The Income-tax Officer and the Appellate Assistant Commissioner rejected the plea, The Tribunal, however, upheld the assessees contention holding that the expenditure in question brought into existence no capital asset to the assessee-company as the tenements remained the property and the assets of the Housing Board. The assessee-company acquired no ownership rights in the said tenements, it held. The Tribunal found further that there was no obligation on the assessee-company to provide its workers tenements constructed by the Housing Board and that the benefit of better and cheaper housing in this case obtained by the industrial workers of the assessee-company did not constitute a direct benefit of an enduring nature to the assessee. The expenditure, it observed, was incurred merely with a view to carry on the business of the assessee-company more efficiently by having a contented labour force. 3. Dr. V. Gaurishankar, learned counsel for the Revenue, places strong reliance upon the decision of this court in Travancore-Cochin Chemicals Ltd. v. CIT. The facts of the case are the following : The assessee-company was receiving and despatching material required for its purposes through trucks. The approach road to its premises was not a pucca road and was causing difficulties and inconvenience on several occasions. Along with three other public undertakings, the assessee approached the Kerala Government for laying a new road to that area. While the Government bore the cost of acquisition of land and part of the cost of construction of the road, the remaining cost was met by four companies including the assessee. The question was whether the said expenditure is allowable as a revenue expenditure. This court held that by having the new road constructed for the improvement of transport facilities, the appellant had acquired an enduring advantage for its business and, therefore, the expenditure incurred by the assessee was of a capital nature. Dr. Gauri Shankar says the principle of the said decision is equally applicable herein inasmuch as provision for better housing to the assessees workers was ultimately a benefit and an enduring benefit to the assessee. On the other hand, learned counsel for the assessee brought to our notice a later decision of this court in L. H. Sugar Factory and Oil Mills (P.) Ltd. v. CIT where, after discussing the facts and the principle of the decision in Travancore-Cochin Chemicals case (SC), it has been held that the ratio of the said decision must be confined to the peculiar facts of that case alone for reasons assigned in that behalf. The decision in L. H. Sugar Factory and Oil Mills case was also a case where certain expenditure was incurred towards part of the cost of construction of the roads in the area around the factory and it was held that it was a business expenditure. Our attention is also invited to an order of this court in CIT v. T. V. Sundaram Iyengar and Sons Pvt. Ltd., wherein it has been held that the amount advanced by the assessee for construction of houses under a subsidised industrial scheme for its employees is in the nature of a revenue expenditure. In this case too, the amount was advanced to the Government which purchased the land in its own name and the buildings constructed thereon became the property of the Government and not of the assessee. Having regard to the facts of the appeals before us and in the light of the findings recorded by the Tribunal, we think that the principle of L. H. Sugar Factory and Oil Mills case (SC) and CIT v. T. V. Sundaram Iyengar and Sons P. Ltd. (SC) is more appropriate than the principles in Travancore-Cochin Chemicals case (SC)We are, therefore, of the opinion that the High Court was justified in rejecting the application under section 256(2) of the Income-tax Act. 4.
### Response:
0
### Explanation:
Our attention is also invited to an order of this court in CIT v. T. V. Sundaram Iyengar and Sons Pvt. Ltd., wherein it has been held that the amount advanced by the assessee for construction of houses under a subsidised industrial scheme for its employees is in the nature of a revenue expenditure. In this case too, the amount was advanced to the Government which purchased the land in its own name and the buildings constructed thereon became the property of the Government and not of the assessee. Having regard to the facts of the appeals before us and in the light of the findings recorded by the Tribunal, we think that the principle of L. H. Sugar Factory and Oil Mills case (SC) and CIT v. T. V. Sundaram Iyengar and Sons P. Ltd. (SC) is more appropriate than the principles in Travancore-Cochin Chemicals casee are, therefore, of the opinion that the High Court was justified in rejecting the application under section 256(2) of the Income-tax Act.
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R.S. ANJAYYA GUPTA Vs. THIPPAIAH SETTY | writing and 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,and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.?13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi (AIR 1967 SC 1124 ) , the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (2001) 3 SCC 179 . However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao (1974) 2 SCC 492 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an ?expression of opinion? in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.?In another recent decision in C. Venkata Swamy (supra), once again this Court reiterated the settled legal position regarding the purport of power of the appellate court coupled with its duty, under Section 96 of the Code, while deciding the first appeal, by adverting to decisions in Kurian Chacko Vs. Varkey Ouseph AIR 1969 Kerala 316 , Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath Vs. Arulappa and Another (2005) 12 SCC 303 ( paragraph no.2) , B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy (2010) 13 SCC 530 ( paragraph nos.3 and 5) , S.B.I. (supra) and Union of India Vs. K.V. Lakshman and Others (2016) 13 SCC 124 . The court, even in this reported case relegated the parties before the High Court for reconsideration of the first appeal afresh.18. We are conscious of the fact that in the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. We, at one stage were persuaded to consider and examine the matter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit.19. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non-exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously. | 1[ds]16. After cogitating over the rival submissions made during the elaborate arguments by the respective counsel and who had invited our attention to the pleadings and evidence on record, we deem it to appropriate to relegate the parties before the High Court for consideration of the first appeal afresh. We say so for more than one reason. The first is that, the High Court has disposed of the first appeal by a cryptic judgment. For, the firstfive paragraphs of the impugned judgment are only reproduction of the submissions made by the counsel for the concerned parties. After doing so, in paragraph no.6 of the impugned judgment, the High Court straightaway proceeded to affirm the opinion of the Trial Court that the suit properties forming part of Schedule A and Schedule B to the plaint, are the joint family properties.18. We are conscious of the fact that in the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. We, at one stage were persuaded to consider and examine thematter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit.19. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non-exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously. | 1 | 4,576 | 497 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
writing and 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,and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.?13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi (AIR 1967 SC 1124 ) , the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (2001) 3 SCC 179 . However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao (1974) 2 SCC 492 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an ?expression of opinion? in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.?In another recent decision in C. Venkata Swamy (supra), once again this Court reiterated the settled legal position regarding the purport of power of the appellate court coupled with its duty, under Section 96 of the Code, while deciding the first appeal, by adverting to decisions in Kurian Chacko Vs. Varkey Ouseph AIR 1969 Kerala 316 , Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath Vs. Arulappa and Another (2005) 12 SCC 303 ( paragraph no.2) , B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy (2010) 13 SCC 530 ( paragraph nos.3 and 5) , S.B.I. (supra) and Union of India Vs. K.V. Lakshman and Others (2016) 13 SCC 124 . The court, even in this reported case relegated the parties before the High Court for reconsideration of the first appeal afresh.18. We are conscious of the fact that in the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. We, at one stage were persuaded to consider and examine the matter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit.19. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non-exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously.
### Response:
1
### Explanation:
16. After cogitating over the rival submissions made during the elaborate arguments by the respective counsel and who had invited our attention to the pleadings and evidence on record, we deem it to appropriate to relegate the parties before the High Court for consideration of the first appeal afresh. We say so for more than one reason. The first is that, the High Court has disposed of the first appeal by a cryptic judgment. For, the firstfive paragraphs of the impugned judgment are only reproduction of the submissions made by the counsel for the concerned parties. After doing so, in paragraph no.6 of the impugned judgment, the High Court straightaway proceeded to affirm the opinion of the Trial Court that the suit properties forming part of Schedule A and Schedule B to the plaint, are the joint family properties.18. We are conscious of the fact that in the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. We, at one stage were persuaded to consider and examine thematter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit.19. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non-exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously.
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Dhan Singh Ramkrishna Chaudhri & Ors Vs. Laxminarayan Ramkishan & Anr | relieved against forfeiture for that year, and that the order granting the relief did not wipe out the default gives an indication to the contrary.28. Vithals case (supra) does not advance the appellants case. It does not lay down a principle in conflict with the ratio of Raja Rams case (supra). In Vithals case the rent was payable by the 20th March every year. The rent for the years 1951-52, 1952-53, 1953-54 and 1954-55 was paid by the tenant and accepted by the landlord though it was not paid on due dates. Thus, on the date on which the landlord filed the application under Section 29 of the Act for eviction of the tenant on the ground that the rent had not been paid for the aforesaid years by the due dates, no arrears of rent were outstanding against the tenant. Dismissing the landlords appeal which he had filed by special leave this Court speaking through Shelat J., construed S. 25 of the Act thus:"Sub-section (1) thus pre-supposes that there are arrears at the date of the application which the Mamlatdar can direct the tenant to pay and that on such arrears being paid the Mamlatdar has to order notwithstanding the termination of the tenancy by the landlord that such tenancy had not been terminated and no order of eviction can be passed against such tenant. Sub-section (2) on the other hand deals with a case where there is persistent default by the tenant for three years and provides that to such a case the provisions of sub-s. (1) would not apply. The Mamlatdar in such a case has not the power to order payment of arrears as he would do under sub-section. (1) and on payment of such arrears to direct as he would do under sub-sec. (1) that the tenancy shall be treated as not having been terminated sub-sec. (2) therefore also pre-supposes(i) that the tenant has made defaults for more than two years and (ii) that the tenant was in arrears at the date of the application which arrears in this case the Mamlatdar cannot order the tenant to pay up.Sub-sec. (2) is in contra-distinction of sub-section (1) that is to say whereas in the case of less than 3 defaults the Mamlatdar can call upon the tenant to pay the arrears and can on payment of such arrears direct that the tenancy was not terminated, he cannot do so under sub-section (2) where there are more than two defaults and direct that the tenancy had not been terminated. If this was not the correct construction of sub-section (2) and if the appellants construction were to be accepted it would lead to a very astonishing result, viz., that even where the tenant has paid up all the arrears and the landlord has accepted them, he would still have the right to evict the tenant, though his reason for terminating the tenancy and his cause of action for eviction have disappeared by his acceptance of the arrears due to him."(Emphasis added).29. It will be seen that in Vithals case this Court was dealing with an entirely different situation. No arrears were in existence or subsisting on the date of the landlords application, whereas in the present case, a sum to the tune of Rs. 1010/3/- being the total of short payments for the three years in question, was still outstanding against the tenant. In fact if the tenant offers and the landlord accepts the full amount of rent in arrears, the cause of action for ejectment on the ground of non-payment of rent disappears. The acceptance of rent may amount to waiver of the landlords right to evict. By no stretch of imagination the decision in Vithals case can be understood as laying down that if the amount of rent due for the tenant at the date of the landlords application for eviction does not exceed the total of two years rent, sub-section (2) of Section 25 cannot apply. "Arrears" mean money unpaid at the due time as rent behind (see Earl Jowtts Dictionary of English Law).30. Sub-section (2) of S. 25 lays down in the clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in S. 14, the authority concerned will be left with no discretion under sub-section (1) to allow the tenant to pay up the arrears and on such payment to direct that the tenancy had not been terminated. The words "the tenant has made defaults for more than two years" and "arrears" in the underlined portion of the above-quoted passage convey nothing more or different from what is explicit in the words "if he has failed for any three years to pay rent within the period specified in S. 14" occurring in sub-section (2) of S. 25. All that was intended to emphasise was that even if the tenant defaults in payment of rent for any three years, but the arrears relatable to these defaults are cleared as a result of the tender of full amount due by the tenant and its acceptance by the landlord, this sub-section (2) will not come into operation and the landlords application for eviction, when no arrears are outstanding would not be maintainable.31. It will bear repetition that "failure to pay rent for any three years" is not the same thing as failure to pay rent equivalent to more than two years rent. Even if the tenant fails to pay part of the rent due in any year within the period specified in Section 14, he defaults to pay rent for that year. Such partial defaults are also defaults within the contemplation of sub-section (2) of Section 25. Any other construction would lead to strange results, and even a persistently defaulting tenant would be able to stave off eviction by paying only a part of the rent due every year so that the unpaid arrears remain, in the aggregate, less than the total rent of two years. | 0[ds]16. An analysis of the definition of Section 7 would show that the rent payable by a tenant (subject to the maximum rate fixed under Section 6) is (a) the rent agreed upon between such tenant and landlord or (b) in the absence of any agreement, the rent according to usage of the locality or (c) where there is dispute as regards the reasonableness of the rent payable according to such agreement or usage, the reasonable rent.17. The case before us fell under clause (a). The landlord alleged that the agreed rent was Rs. 850/-. Since the rent fixed under the Government Notification was less than the agreed rent, the landlord actually claimed an amount as rent calculated on the basis of the lower rate i.e. Rs. 685/5/- per annum. However, the tenant contended that the agreed rent was Rs. 500/- per annum. The Extra Aval Karkun reduced this point of controversy into an issue to this4. What was the rent fixed between the parties in respect of the suit lands.He answered this point, as "Rs. 685/5/-.The language of sub-section (2) is unambiguous, clear and unequivocal, It is not susceptible of two interpretations. There is therefore no scope - even with the aid of any rule of beneficent interpretation - for construing this sub-section in a manner contrary to its plain ordinary meaning. Moreover, the point is covered by the decision of this Court in Raja Rams case (supra) and we are bound by the same.26. In Raja Rams case (supra) the tenants were in default in paying rent for three years and due notices had been served by the landlords terminating the tenancies. They applied to Mamlatdar under Section 29 of the Act for possession of the lands. The Mamlatdar refused to make an order for possession on the ground that the tenants were entitled to relief, against forfeiture on equitable principles. In the fourth appeal before the Court, in respect of the default in the first year the tenant had been granted relief against forfeiture under Section 25(1) of the Act. The tenant contended that the default in the first year had merged in the order under section 25(1) and could not be relied upon for holding that he had defaulted for three years. It was held by this Court that the landlords were entitled to orders for possession because upon default in payment of rent for three years a statutory right accrued to the landlords under Section 25(2) to terminate the tenancy and to obtain possession. There was no provision in the Act for granting relief against forfeiture in such a case the provision in Section 29(3) that the Mamlatdar "shall pass such orders as he deems fit did not give him such a power. The Act merely empowered him to grant relief where the tenant was not in arrears for more than two years. No relief against forfeiture could be granted to a tenant who fails to pay rent for any three years within the period specified in Section 14, either on equitable grounds or under Section 11 of the Transfer of Property Act.Sub-section (2) of S. 25 lays down in the clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in S. 14, the authority concerned will be left with no discretion under sub-section (1) to allow the tenant to pay up the arrears and on such payment to direct that the tenancy had not been terminated. The words "the tenant has made defaults for more than two years" and "arrears" in the underlined portion of the above-quoted passage convey nothing more or different from what is explicit in the words "if he has failed for any three years to pay rent within the period specified in S. 14" occurring in sub-section (2) of S. 25. All that was intended to emphasise was that even if the tenant defaults in payment of rent for any three years, but the arrears relatable to these defaults are cleared as a result of the tender of full amount due by the tenant and its acceptance by the landlord, this sub-section (2) will not come into operation and the landlords application for eviction, when no arrears are outstanding would not be maintainable.31. It will bear repetition that "failure to pay rent for any three years" is not the same thing as failure to pay rent equivalent to more than two years rent. Even if the tenant fails to pay part of the rent due in any year within the period specified in Section 14, he defaults to pay rent for that year. Such partial defaults are also defaults within the contemplation of sub-section (2) of Section 25. Any other construction would lead to strange results, and even a persistently defaulting tenant would be able to stave off eviction by paying only a part of the rent due every year so that the unpaid arrears remain, in the aggregate, less than the total rent of two years. | 0 | 4,414 | 939 | ### 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:
relieved against forfeiture for that year, and that the order granting the relief did not wipe out the default gives an indication to the contrary.28. Vithals case (supra) does not advance the appellants case. It does not lay down a principle in conflict with the ratio of Raja Rams case (supra). In Vithals case the rent was payable by the 20th March every year. The rent for the years 1951-52, 1952-53, 1953-54 and 1954-55 was paid by the tenant and accepted by the landlord though it was not paid on due dates. Thus, on the date on which the landlord filed the application under Section 29 of the Act for eviction of the tenant on the ground that the rent had not been paid for the aforesaid years by the due dates, no arrears of rent were outstanding against the tenant. Dismissing the landlords appeal which he had filed by special leave this Court speaking through Shelat J., construed S. 25 of the Act thus:"Sub-section (1) thus pre-supposes that there are arrears at the date of the application which the Mamlatdar can direct the tenant to pay and that on such arrears being paid the Mamlatdar has to order notwithstanding the termination of the tenancy by the landlord that such tenancy had not been terminated and no order of eviction can be passed against such tenant. Sub-section (2) on the other hand deals with a case where there is persistent default by the tenant for three years and provides that to such a case the provisions of sub-s. (1) would not apply. The Mamlatdar in such a case has not the power to order payment of arrears as he would do under sub-section. (1) and on payment of such arrears to direct as he would do under sub-sec. (1) that the tenancy shall be treated as not having been terminated sub-sec. (2) therefore also pre-supposes(i) that the tenant has made defaults for more than two years and (ii) that the tenant was in arrears at the date of the application which arrears in this case the Mamlatdar cannot order the tenant to pay up.Sub-sec. (2) is in contra-distinction of sub-section (1) that is to say whereas in the case of less than 3 defaults the Mamlatdar can call upon the tenant to pay the arrears and can on payment of such arrears direct that the tenancy was not terminated, he cannot do so under sub-section (2) where there are more than two defaults and direct that the tenancy had not been terminated. If this was not the correct construction of sub-section (2) and if the appellants construction were to be accepted it would lead to a very astonishing result, viz., that even where the tenant has paid up all the arrears and the landlord has accepted them, he would still have the right to evict the tenant, though his reason for terminating the tenancy and his cause of action for eviction have disappeared by his acceptance of the arrears due to him."(Emphasis added).29. It will be seen that in Vithals case this Court was dealing with an entirely different situation. No arrears were in existence or subsisting on the date of the landlords application, whereas in the present case, a sum to the tune of Rs. 1010/3/- being the total of short payments for the three years in question, was still outstanding against the tenant. In fact if the tenant offers and the landlord accepts the full amount of rent in arrears, the cause of action for ejectment on the ground of non-payment of rent disappears. The acceptance of rent may amount to waiver of the landlords right to evict. By no stretch of imagination the decision in Vithals case can be understood as laying down that if the amount of rent due for the tenant at the date of the landlords application for eviction does not exceed the total of two years rent, sub-section (2) of Section 25 cannot apply. "Arrears" mean money unpaid at the due time as rent behind (see Earl Jowtts Dictionary of English Law).30. Sub-section (2) of S. 25 lays down in the clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in S. 14, the authority concerned will be left with no discretion under sub-section (1) to allow the tenant to pay up the arrears and on such payment to direct that the tenancy had not been terminated. The words "the tenant has made defaults for more than two years" and "arrears" in the underlined portion of the above-quoted passage convey nothing more or different from what is explicit in the words "if he has failed for any three years to pay rent within the period specified in S. 14" occurring in sub-section (2) of S. 25. All that was intended to emphasise was that even if the tenant defaults in payment of rent for any three years, but the arrears relatable to these defaults are cleared as a result of the tender of full amount due by the tenant and its acceptance by the landlord, this sub-section (2) will not come into operation and the landlords application for eviction, when no arrears are outstanding would not be maintainable.31. It will bear repetition that "failure to pay rent for any three years" is not the same thing as failure to pay rent equivalent to more than two years rent. Even if the tenant fails to pay part of the rent due in any year within the period specified in Section 14, he defaults to pay rent for that year. Such partial defaults are also defaults within the contemplation of sub-section (2) of Section 25. Any other construction would lead to strange results, and even a persistently defaulting tenant would be able to stave off eviction by paying only a part of the rent due every year so that the unpaid arrears remain, in the aggregate, less than the total rent of two years.
### Response:
0
### Explanation:
16. An analysis of the definition of Section 7 would show that the rent payable by a tenant (subject to the maximum rate fixed under Section 6) is (a) the rent agreed upon between such tenant and landlord or (b) in the absence of any agreement, the rent according to usage of the locality or (c) where there is dispute as regards the reasonableness of the rent payable according to such agreement or usage, the reasonable rent.17. The case before us fell under clause (a). The landlord alleged that the agreed rent was Rs. 850/-. Since the rent fixed under the Government Notification was less than the agreed rent, the landlord actually claimed an amount as rent calculated on the basis of the lower rate i.e. Rs. 685/5/- per annum. However, the tenant contended that the agreed rent was Rs. 500/- per annum. The Extra Aval Karkun reduced this point of controversy into an issue to this4. What was the rent fixed between the parties in respect of the suit lands.He answered this point, as "Rs. 685/5/-.The language of sub-section (2) is unambiguous, clear and unequivocal, It is not susceptible of two interpretations. There is therefore no scope - even with the aid of any rule of beneficent interpretation - for construing this sub-section in a manner contrary to its plain ordinary meaning. Moreover, the point is covered by the decision of this Court in Raja Rams case (supra) and we are bound by the same.26. In Raja Rams case (supra) the tenants were in default in paying rent for three years and due notices had been served by the landlords terminating the tenancies. They applied to Mamlatdar under Section 29 of the Act for possession of the lands. The Mamlatdar refused to make an order for possession on the ground that the tenants were entitled to relief, against forfeiture on equitable principles. In the fourth appeal before the Court, in respect of the default in the first year the tenant had been granted relief against forfeiture under Section 25(1) of the Act. The tenant contended that the default in the first year had merged in the order under section 25(1) and could not be relied upon for holding that he had defaulted for three years. It was held by this Court that the landlords were entitled to orders for possession because upon default in payment of rent for three years a statutory right accrued to the landlords under Section 25(2) to terminate the tenancy and to obtain possession. There was no provision in the Act for granting relief against forfeiture in such a case the provision in Section 29(3) that the Mamlatdar "shall pass such orders as he deems fit did not give him such a power. The Act merely empowered him to grant relief where the tenant was not in arrears for more than two years. No relief against forfeiture could be granted to a tenant who fails to pay rent for any three years within the period specified in Section 14, either on equitable grounds or under Section 11 of the Transfer of Property Act.Sub-section (2) of S. 25 lays down in the clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in S. 14, the authority concerned will be left with no discretion under sub-section (1) to allow the tenant to pay up the arrears and on such payment to direct that the tenancy had not been terminated. The words "the tenant has made defaults for more than two years" and "arrears" in the underlined portion of the above-quoted passage convey nothing more or different from what is explicit in the words "if he has failed for any three years to pay rent within the period specified in S. 14" occurring in sub-section (2) of S. 25. All that was intended to emphasise was that even if the tenant defaults in payment of rent for any three years, but the arrears relatable to these defaults are cleared as a result of the tender of full amount due by the tenant and its acceptance by the landlord, this sub-section (2) will not come into operation and the landlords application for eviction, when no arrears are outstanding would not be maintainable.31. It will bear repetition that "failure to pay rent for any three years" is not the same thing as failure to pay rent equivalent to more than two years rent. Even if the tenant fails to pay part of the rent due in any year within the period specified in Section 14, he defaults to pay rent for that year. Such partial defaults are also defaults within the contemplation of sub-section (2) of Section 25. Any other construction would lead to strange results, and even a persistently defaulting tenant would be able to stave off eviction by paying only a part of the rent due every year so that the unpaid arrears remain, in the aggregate, less than the total rent of two years.
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Om Prakash Vs. Reliance General Insuarance | Forum, Hissar (for short `District Forum), under Section 12 of the Consumer Protection Act, 1986, inter alia, seeking a direction to the respondent-company for payment of claim amount with an interest @ 18% per annum, along with compensation of Rs. 1,00,000/- to the appellant. Written statement was filed by the respondents herein opposing the claim of the appellant. The District Forum, by order dated 13.06.2013, dismissed the complaint of the appellant thereby holding that there is no deficiency of service on the part of respondents. 5. The appellant herein filed an appeal challenging the said order of District Forum, before the State Consumer Dispute Redressal Commission, Haryana (for short `State Commission) at Panchkula. The State Commission by an order dated 23.10.2013 dismissed the said appeal. This order was challenged by the appellant by way of Revision Petition before the National Consumer Disputes Redressal Commission (for short `National Commission). This Revision Petition has been dismissed by the National Commission by an order dated 12.02.2014. The appellant has questioned the legality and correctness of the said order in this appeal. 6. Learned counsel for the appellant contended that the appellant, immediately after getting the information about the theft of the vehicle, went to the place of theft and met the police officials along with the truck driver. Consequently, he got busy with the police while visiting many cities in Rajasthan for the search of the said vehicle and returned to his village on 30.03.2010 and lodged the insurance claim on 31.03.2010 before the Respondent-company. The appellant has assigned cogent reasons for the delay of 8 days in lodging the complaint. The National Commission has dismissed the petition filed by the appellant without taking into consideration the reasons assigned for the delay. It is argued that the Investigator appointed by the Respondent has verified the factum of theft and that the Corporate Claims Manager approved the report of Investigator, thereby recommending the payment of Rs. 7,85,000/- towards claim. 7. On the other hand, the learned counsel appearing for the respondents submits that as per the Condition No. 1 of the Insurance Policy, the information of theft ought to have been given to the respondent-company immediately upon the occurrence of theft. The claim was filed after a delay 8 days from the occurrence of theft. In the said circumstance, the National Commission was justified in rejecting the revision petition. 8. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 9. The appellant, owner of the truck in question, is the resident of Muzadnagar village, Tehsil Hansi, District Hissar, State of Haryana. The theft of the vehicle had taken place on 23.03.2010 at Chopanki, Bhiwari, Rajasthan. The FIR was lodged in P.S. Tapukra, District Alwar on 24.03.2010 and the claim petition was filed on 31.03.2010. Dinesh, the truck-driver, had filed an affidavit before the District Forum stating that the owner of the truck had reached the place of occurrence of theft and met him and also the concerned police official. The Police had asked him and the owner to stay with them in order to help them for tracing out the truck. The police had also asked them to collect necessary documents in relation to the said truck. They were, consequently, busy with the Rajasthan Police in searching the vehicle. They visited many places in Rajasthan. The police had compelled the appellant to accompany them while searching the truck. It is only on 29.03.2010, the appellant went back and reached his village on 30.03.2010. The appellant had also filed a similar affidavit before the State Commission explaining the reasons for the delay in informing theft of the vehicle. 10. Condition No.1 of the Insurance Policy states that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require. 11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act. 12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/- towards compensation. | 1[ds]11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence ofs in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/ | 1 | 1,434 | 361 | ### 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:
Forum, Hissar (for short `District Forum), under Section 12 of the Consumer Protection Act, 1986, inter alia, seeking a direction to the respondent-company for payment of claim amount with an interest @ 18% per annum, along with compensation of Rs. 1,00,000/- to the appellant. Written statement was filed by the respondents herein opposing the claim of the appellant. The District Forum, by order dated 13.06.2013, dismissed the complaint of the appellant thereby holding that there is no deficiency of service on the part of respondents. 5. The appellant herein filed an appeal challenging the said order of District Forum, before the State Consumer Dispute Redressal Commission, Haryana (for short `State Commission) at Panchkula. The State Commission by an order dated 23.10.2013 dismissed the said appeal. This order was challenged by the appellant by way of Revision Petition before the National Consumer Disputes Redressal Commission (for short `National Commission). This Revision Petition has been dismissed by the National Commission by an order dated 12.02.2014. The appellant has questioned the legality and correctness of the said order in this appeal. 6. Learned counsel for the appellant contended that the appellant, immediately after getting the information about the theft of the vehicle, went to the place of theft and met the police officials along with the truck driver. Consequently, he got busy with the police while visiting many cities in Rajasthan for the search of the said vehicle and returned to his village on 30.03.2010 and lodged the insurance claim on 31.03.2010 before the Respondent-company. The appellant has assigned cogent reasons for the delay of 8 days in lodging the complaint. The National Commission has dismissed the petition filed by the appellant without taking into consideration the reasons assigned for the delay. It is argued that the Investigator appointed by the Respondent has verified the factum of theft and that the Corporate Claims Manager approved the report of Investigator, thereby recommending the payment of Rs. 7,85,000/- towards claim. 7. On the other hand, the learned counsel appearing for the respondents submits that as per the Condition No. 1 of the Insurance Policy, the information of theft ought to have been given to the respondent-company immediately upon the occurrence of theft. The claim was filed after a delay 8 days from the occurrence of theft. In the said circumstance, the National Commission was justified in rejecting the revision petition. 8. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 9. The appellant, owner of the truck in question, is the resident of Muzadnagar village, Tehsil Hansi, District Hissar, State of Haryana. The theft of the vehicle had taken place on 23.03.2010 at Chopanki, Bhiwari, Rajasthan. The FIR was lodged in P.S. Tapukra, District Alwar on 24.03.2010 and the claim petition was filed on 31.03.2010. Dinesh, the truck-driver, had filed an affidavit before the District Forum stating that the owner of the truck had reached the place of occurrence of theft and met him and also the concerned police official. The Police had asked him and the owner to stay with them in order to help them for tracing out the truck. The police had also asked them to collect necessary documents in relation to the said truck. They were, consequently, busy with the Rajasthan Police in searching the vehicle. They visited many places in Rajasthan. The police had compelled the appellant to accompany them while searching the truck. It is only on 29.03.2010, the appellant went back and reached his village on 30.03.2010. The appellant had also filed a similar affidavit before the State Commission explaining the reasons for the delay in informing theft of the vehicle. 10. Condition No.1 of the Insurance Policy states that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require. 11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act. 12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/- towards compensation.
### Response:
1
### Explanation:
11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence ofs in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/
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Cyanamid India Limited Vs. K. N. Anantharama Ayyar | the regular assessment but the disputed amount is that which was found as the tax liability by the order of regular assessment. The mere payment of advance tax does not mean that the assessee accepts that the entire amount of advance tax is liable to be credited as the amount payable as tax. Shri Jetley also referred to third proviso to sub-section (1) of section 244 of the Act, but we are unable to appreciate how the contents of the same proviso has any bearing on the construction of sub-section (1-A ). In our judgment, the plain reading of sub-section (1-A) leaves no manner of doubt that the liability to pay interest under sub-section (1a) covers also the part of advance tax paid prior to March 31, 1975 but credited towards tax liability in pursuance of order of assessment passed after March 31, 1975.( 10 ) SHRI Jetley placed strong reliance upon the decision of the Full Bench of the Gujarat High Court reported in 151 I. T. R. 389 (Bardolia Textile Mills v. Income-tax Officer, Circle II, Ward-E, Surat) The Full Bench of the Gujarat High Court held that section 244 (1-A) of the Act does not apply to amounts paid as advance tax because advance tax paid is not an amount paid in pursuance of the order of assessment or any penalty and such amount will have to be taken care of independent of section 244 (1-A ). The Full Bench of Gujarat High Court arrived at the conclusion after dis-agreeing with the decision of the Full Bench of this Court reported in 146 I. T. R. 452, Commissioner of Income-tax, Bombay City-IV v. Carona Sahu Co. Ltd. , and holding that interest payable under section 214 (1) is not up to the date of first assessment but up to the date of revised assessment. The Full Bench held that the expression "regular assessment" under section 214 (1) must be construed as the date of final assessment or the revised assessment made in pursuance of the orders of the appellate authorities, and the Department is liable to pay interest on the excess amount found in the final or revised assessment. In view of that conclusion, the Full Bench of Gujarat High Court held that section 214 (1) and sections 244 (1-A) operate in different fields. As we are bound by the Full Bench decision of our High Court and the assessee is not entitled to interest under section 214 (1) of the Act beyond the date of first assessment, the assessee cannot be deprived of seeking interest in respect of the amount paid as advance tax by denying benefit of the provisions of section 244 (1-A) of the Act. The decision of the Full Bench proceeds to conclude that section 244 (1-A) of the Act has no application to amounts paid as advance tax only because the Full Bench holds that interest is payable under section 214 (1) of the Act not up to the first assessment but up to the date of revised assessment. In our judgment, the Gujarat High Court decision does not help the claim of Shri Jetly. Reference was also made to the decision of Kerala High Court reported in 186 I. T. R. 97 (K. A. Karim and Sons v. Commissioner of Income-tax and another) but this decision of the Single Judge is of no assistance because the question which arose was in a different context and the observations made by the Single Judge has no application to the controversy in the present case. On the other hand, the decision relied upon by Shri Dastur reported in 178 I. T. R. 529 (Commissioner of Income-tax v. Leader Engineering Works) is appropriate. The Punjab High Court held that advance tax paid lost its identity the moment it was adjusted towards the tax liability created under the regular assessment and took the shape of payment of tax in pursuance of the order of assessment. We are in respectful agreement with the view taken by the Division Bench of Punjab High Court. In the decision reported in 31 I. T. R. 698 (Sarangpur Cotton Manufacturing Co. Ltd v. Commissioner of Income-tax, Bombay North) Chief Justice Chagla speaking for the Bench observed that the liability to pay arises once the order of assessment is made and that liability would cover not only the advance tax already paid but any additional amount that might have to be paid by the assessee. In other words, the learned Chief Justice held that the advance tax loses its character and is credited towards the liability arising out of the order of assessment. The Full Bench of the Kerala High Court in the decision reported in 155 I. T. R. 548 (Commissioner of Income-tax v. G. B. Transports, Guruvayur) observed that once an order under section 143 of the Act is passed, then the amount paid as advance tax changes the character as advance tax and partakes the character of tax paid as per demand. It was observed that what is credited is treated as tax paid and in subsequent assessment order as a result of modification in appeal, the Income-tax Officer determines the sum payable by the assessee or refundable to him only with reference to the amount of tax collected or treated as paid and not with reference to the amount of advance tax which has already adjusted or refunded. In our judgment, the contention of Shri Dastur as regards applicability of sub-section (1-A) of section 244 of the Act to the amount of advance tax paid is well supported by the decision of the Punjab and Kerala High Courts and with which we respectfully agree. The respondent No. 1, therefore, was clearly in error in denying relief to the Company under section 244 (1-A) in respect of assessment year 1974-75 and in respect of tax paid in pursuance of rectification order for assessment year 1973-74 and the Company is entitled to the interest in respect of these two claims. | 1[ds]It is not possible to accede to the submission of Shri Jetly that) of section 244 does not take in it sweep the amount of advance tax paid and which was credited under section 219 but which credit was found to be in excess of the liability of the assessee by the appellate authority. We are unable to make any distinction between the amounts paid after March 31, 1975 in pursuance of the order of assessment and amount credited under section 219 after March 31, 1975 in pursuance of the order of assessment. Shri Jetly in support of his submission referred to the provisions of(5) of section 139 of the Act and urged that the interpretation suggested by the Company in regard to the application of) of section 244 of the Act may lead to anamolous results. We are unable to find any merit in the submission. In our judgment, there is no ambiguity whatsoever in regard to the construction of) of section 244 of the Act. Reference was made by Shri Jetly to Clause 57 in the Notes to Taxation Laws (Amendment) Bills, 1973 and by which amendment) was instead. Clause 57 of the Note sets out thats inserted so as to provide that interest on refund of tax due as a result of the appeals is to be allowed from the date the disputed demand was orginally paid to the date of grant ofare unable to find any merit in the submission. The disputed amount is not necessarily that which the assessee is required to pay after the regular assessment but the disputed amount is that which was found as the tax liability by the order of regular assessment. The mere payment of advance tax does not mean that the assessee accepts that the entire amount of advance tax is liable to be credited as the amount payable asour judgment, the plain reading of) leaves no manner of doubt that the liability to pay interest under(1a) covers also the part of advance tax paid prior to March 31, 1975 but credited towards tax liability in pursuance of order of assessment passed after March 31, 1975.( 10 ) SHRI Jetley placed strong reliance upon the decision of the Full Bench of the Gujarat High Court reported in 151 I. T. R. 389 (Bardolia Textile Mills v.Officer, Circle II,Surat) The Full Bench of the Gujarat High Court held that section 244of the Act does not apply to amounts paid as advance tax because advance tax paid is not an amount paid in pursuance of the order of assessment or any penalty and such amount will have to be taken care of independent of section 244). The Full Bench of Gujarat High Court arrived at the conclusion afterwith the decision of the Full Bench of this Court reported in 146 I. T. R. 452, Commissioner ofIV v. Carona Sahu Co. Ltd. , and holding that interest payable under section 214 (1) is not up to the date of first assessment but up to the date of revised assessment. The Full Bench held that the expression "regular assessment" under section 214 (1) must be construed as the date of final assessment or the revised assessment made in pursuance of the orders of the appellate authorities, and the Department is liable to pay interest on the excess amount found in the final or revised assessment. In view of that conclusion, the Full Bench of Gujarat High Court held that section 214 (1) and sections 244operate in different fields. As we are bound by the Full Bench decision of our High Court and the assessee is not entitled to interest under section 214 (1) of the Act beyond the date of first assessment, the assessee cannot be deprived of seeking interest in respect of the amount paid as advance tax by denying benefit of the provisions of section 244of the Act. The decision of the Full Bench proceeds to conclude that section 244of the Act has no application to amounts paid as advance tax only because the Full Bench holds that interest is payable under section 214 (1) of the Act not up to the first assessment but up to the date of revised assessment. In our judgment, the Gujarat High Court decision does not help the claim of Shri Jetly. Reference was also made to the decision of Kerala High Court reported in 186 I. T. R. 97 (K. A. Karim and Sons v. Commissioner ofand another) but this decision of the Single Judge is of no assistance because the question which arose was in a different context and the observations made by the Single Judge has no application to the controversy in the present case. On the other hand, the decision relied upon by Shri Dastur reported in 178 I. T. R. 529 (Commissioner ofv. Leader Engineering Works) is appropriate. The Punjab High Court held that advance tax paid lost its identity the moment it was adjusted towards the tax liability created under the regular assessment and took the shape of payment of tax in pursuance of the order of assessment. We are in respectful agreement with the view taken by the Division Bench of Punjab High Court. In the decision reported in 31 I. T. R. 698 (Sarangpur Cotton Manufacturing Co. Ltd v. Commissioner ofBombay North) Chief Justice Chagla speaking for the Bench observed that the liability to pay arises once the order of assessment is made and that liability would cover not only the advance tax already paid but any additional amount that might have to be paid by the assessee. In other words, the learned Chief Justice held that the advance tax loses its character and is credited towards the liability arising out of the order of assessment. The Full Bench of the Kerala High Court in the decision reported in 155 I. T. R. 548 (Commissioner ofv. G. B. Transports, Guruvayur) observed that once an order under section 143 of the Act is passed, then the amount paid as advance tax changes the character as advance tax and partakes the character of tax paid as per demand. It was observed that what is credited is treated as tax paid and in subsequent assessment order as a result of modification in appeal, theOfficer determines the sum payable by the assessee or refundable to him only with reference to the amount of tax collected or treated as paid and not with reference to the amount of advance tax which has already adjusted or refunded. In our judgment, the contention of Shri Dastur as regards applicability of) of section 244 of the Act to the amount of advance tax paid is well supported by the decision of the Punjab and Kerala High Courts and with which we respectfully agree. The respondent No. 1, therefore, was clearly in error in denying relief to the Company under section 244in respect of assessment yearand in respect of tax paid in pursuance of rectification order for assessment yearand the Company is entitled to the interest in respect of these two claims. | 1 | 5,000 | 1,272 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the regular assessment but the disputed amount is that which was found as the tax liability by the order of regular assessment. The mere payment of advance tax does not mean that the assessee accepts that the entire amount of advance tax is liable to be credited as the amount payable as tax. Shri Jetley also referred to third proviso to sub-section (1) of section 244 of the Act, but we are unable to appreciate how the contents of the same proviso has any bearing on the construction of sub-section (1-A ). In our judgment, the plain reading of sub-section (1-A) leaves no manner of doubt that the liability to pay interest under sub-section (1a) covers also the part of advance tax paid prior to March 31, 1975 but credited towards tax liability in pursuance of order of assessment passed after March 31, 1975.( 10 ) SHRI Jetley placed strong reliance upon the decision of the Full Bench of the Gujarat High Court reported in 151 I. T. R. 389 (Bardolia Textile Mills v. Income-tax Officer, Circle II, Ward-E, Surat) The Full Bench of the Gujarat High Court held that section 244 (1-A) of the Act does not apply to amounts paid as advance tax because advance tax paid is not an amount paid in pursuance of the order of assessment or any penalty and such amount will have to be taken care of independent of section 244 (1-A ). The Full Bench of Gujarat High Court arrived at the conclusion after dis-agreeing with the decision of the Full Bench of this Court reported in 146 I. T. R. 452, Commissioner of Income-tax, Bombay City-IV v. Carona Sahu Co. Ltd. , and holding that interest payable under section 214 (1) is not up to the date of first assessment but up to the date of revised assessment. The Full Bench held that the expression "regular assessment" under section 214 (1) must be construed as the date of final assessment or the revised assessment made in pursuance of the orders of the appellate authorities, and the Department is liable to pay interest on the excess amount found in the final or revised assessment. In view of that conclusion, the Full Bench of Gujarat High Court held that section 214 (1) and sections 244 (1-A) operate in different fields. As we are bound by the Full Bench decision of our High Court and the assessee is not entitled to interest under section 214 (1) of the Act beyond the date of first assessment, the assessee cannot be deprived of seeking interest in respect of the amount paid as advance tax by denying benefit of the provisions of section 244 (1-A) of the Act. The decision of the Full Bench proceeds to conclude that section 244 (1-A) of the Act has no application to amounts paid as advance tax only because the Full Bench holds that interest is payable under section 214 (1) of the Act not up to the first assessment but up to the date of revised assessment. In our judgment, the Gujarat High Court decision does not help the claim of Shri Jetly. Reference was also made to the decision of Kerala High Court reported in 186 I. T. R. 97 (K. A. Karim and Sons v. Commissioner of Income-tax and another) but this decision of the Single Judge is of no assistance because the question which arose was in a different context and the observations made by the Single Judge has no application to the controversy in the present case. On the other hand, the decision relied upon by Shri Dastur reported in 178 I. T. R. 529 (Commissioner of Income-tax v. Leader Engineering Works) is appropriate. The Punjab High Court held that advance tax paid lost its identity the moment it was adjusted towards the tax liability created under the regular assessment and took the shape of payment of tax in pursuance of the order of assessment. We are in respectful agreement with the view taken by the Division Bench of Punjab High Court. In the decision reported in 31 I. T. R. 698 (Sarangpur Cotton Manufacturing Co. Ltd v. Commissioner of Income-tax, Bombay North) Chief Justice Chagla speaking for the Bench observed that the liability to pay arises once the order of assessment is made and that liability would cover not only the advance tax already paid but any additional amount that might have to be paid by the assessee. In other words, the learned Chief Justice held that the advance tax loses its character and is credited towards the liability arising out of the order of assessment. The Full Bench of the Kerala High Court in the decision reported in 155 I. T. R. 548 (Commissioner of Income-tax v. G. B. Transports, Guruvayur) observed that once an order under section 143 of the Act is passed, then the amount paid as advance tax changes the character as advance tax and partakes the character of tax paid as per demand. It was observed that what is credited is treated as tax paid and in subsequent assessment order as a result of modification in appeal, the Income-tax Officer determines the sum payable by the assessee or refundable to him only with reference to the amount of tax collected or treated as paid and not with reference to the amount of advance tax which has already adjusted or refunded. In our judgment, the contention of Shri Dastur as regards applicability of sub-section (1-A) of section 244 of the Act to the amount of advance tax paid is well supported by the decision of the Punjab and Kerala High Courts and with which we respectfully agree. The respondent No. 1, therefore, was clearly in error in denying relief to the Company under section 244 (1-A) in respect of assessment year 1974-75 and in respect of tax paid in pursuance of rectification order for assessment year 1973-74 and the Company is entitled to the interest in respect of these two claims.
### Response:
1
### Explanation:
in the Notes to Taxation Laws (Amendment) Bills, 1973 and by which amendment) was instead. Clause 57 of the Note sets out thats inserted so as to provide that interest on refund of tax due as a result of the appeals is to be allowed from the date the disputed demand was orginally paid to the date of grant ofare unable to find any merit in the submission. The disputed amount is not necessarily that which the assessee is required to pay after the regular assessment but the disputed amount is that which was found as the tax liability by the order of regular assessment. The mere payment of advance tax does not mean that the assessee accepts that the entire amount of advance tax is liable to be credited as the amount payable asour judgment, the plain reading of) leaves no manner of doubt that the liability to pay interest under(1a) covers also the part of advance tax paid prior to March 31, 1975 but credited towards tax liability in pursuance of order of assessment passed after March 31, 1975.( 10 ) SHRI Jetley placed strong reliance upon the decision of the Full Bench of the Gujarat High Court reported in 151 I. T. R. 389 (Bardolia Textile Mills v.Officer, Circle II,Surat) The Full Bench of the Gujarat High Court held that section 244of the Act does not apply to amounts paid as advance tax because advance tax paid is not an amount paid in pursuance of the order of assessment or any penalty and such amount will have to be taken care of independent of section 244). The Full Bench of Gujarat High Court arrived at the conclusion afterwith the decision of the Full Bench of this Court reported in 146 I. T. R. 452, Commissioner ofIV v. Carona Sahu Co. Ltd. , and holding that interest payable under section 214 (1) is not up to the date of first assessment but up to the date of revised assessment. The Full Bench held that the expression "regular assessment" under section 214 (1) must be construed as the date of final assessment or the revised assessment made in pursuance of the orders of the appellate authorities, and the Department is liable to pay interest on the excess amount found in the final or revised assessment. In view of that conclusion, the Full Bench of Gujarat High Court held that section 214 (1) and sections 244operate in different fields. As we are bound by the Full Bench decision of our High Court and the assessee is not entitled to interest under section 214 (1) of the Act beyond the date of first assessment, the assessee cannot be deprived of seeking interest in respect of the amount paid as advance tax by denying benefit of the provisions of section 244of the Act. The decision of the Full Bench proceeds to conclude that section 244of the Act has no application to amounts paid as advance tax only because the Full Bench holds that interest is payable under section 214 (1) of the Act not up to the first assessment but up to the date of revised assessment. In our judgment, the Gujarat High Court decision does not help the claim of Shri Jetly. Reference was also made to the decision of Kerala High Court reported in 186 I. T. R. 97 (K. A. Karim and Sons v. Commissioner ofand another) but this decision of the Single Judge is of no assistance because the question which arose was in a different context and the observations made by the Single Judge has no application to the controversy in the present case. On the other hand, the decision relied upon by Shri Dastur reported in 178 I. T. R. 529 (Commissioner ofv. Leader Engineering Works) is appropriate. The Punjab High Court held that advance tax paid lost its identity the moment it was adjusted towards the tax liability created under the regular assessment and took the shape of payment of tax in pursuance of the order of assessment. We are in respectful agreement with the view taken by the Division Bench of Punjab High Court. In the decision reported in 31 I. T. R. 698 (Sarangpur Cotton Manufacturing Co. Ltd v. Commissioner ofBombay North) Chief Justice Chagla speaking for the Bench observed that the liability to pay arises once the order of assessment is made and that liability would cover not only the advance tax already paid but any additional amount that might have to be paid by the assessee. In other words, the learned Chief Justice held that the advance tax loses its character and is credited towards the liability arising out of the order of assessment. The Full Bench of the Kerala High Court in the decision reported in 155 I. T. R. 548 (Commissioner ofv. G. B. Transports, Guruvayur) observed that once an order under section 143 of the Act is passed, then the amount paid as advance tax changes the character as advance tax and partakes the character of tax paid as per demand. It was observed that what is credited is treated as tax paid and in subsequent assessment order as a result of modification in appeal, theOfficer determines the sum payable by the assessee or refundable to him only with reference to the amount of tax collected or treated as paid and not with reference to the amount of advance tax which has already adjusted or refunded. In our judgment, the contention of Shri Dastur as regards applicability of) of section 244 of the Act to the amount of advance tax paid is well supported by the decision of the Punjab and Kerala High Courts and with which we respectfully agree. The respondent No. 1, therefore, was clearly in error in denying relief to the Company under section 244in respect of assessment yearand in respect of tax paid in pursuance of rectification order for assessment yearand the Company is entitled to the interest in respect of these two claims.
|
Beena R Vs. The Kerala Public Service Commission | Kurian Joseph, J.1. Leave granted.2. The qualification for appointment of Lower Division Typist is prescribed in the Notification, which reads as follows :-“7. Qualifications :1. S.S.L.C. or its equivalent qualification.2. Lower Grade Certificate in KGTE Malayalam Typewriting.3. Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing or its equivalent (G.O.(P) No.17/2005/P&ARD dated 09.05.2005.Note 1 : Those who have passed KGTE Typewriting before January 2002 should produce separate certificate in Computer Word Processing or its equivalent.Certificates in Computer Word Processing issued by Central, State Government Departments/ Agencies/Societies, Universities after successfully completing course of study not less than three months duration are considered as equivalent.”3. Since the appellant herein possessed only a National Trade Certificate, the initial objection was that the same was not the equivalent to the prescribed qualification. That objection was recalled by the Public Service Commission and the appellant was included in the Rank List at Rank No.7. However, an objection was later taken that the Computer Word Processing possessed by the appellant is acquired only after the last date of Notification in 2009.4. In the case of the appellant, what she possessed is not KGTE Typewriting, but the equivalent qualification which has been approved by the Public Service Commission, in which case, what she is required is only to produce a separate certificate in Computer Word Processing. It may be seen that Note 1 says that those who have passed KGTE Typewriting before January, 2002, should produce separate certificate in Computer Word Processing. It is not in dispute that the appellant possesses an equivalent qualification of KGTE (English) Typewriting, but she did not have a separate certificate as far as the Computer Word Processing is concerned. No doubt, it is also a prescribed qualification. However, relaxation has been granted to those who acquired the qualification of KGTE prior to 2002, for producing a certificate regarding Computer Word Processing. Once the word produce is used, it can only be at the time of either verification of the records or at the time of written examination or at the time of appointment. In the case of the appellant, she had produced the certificate prior to the written examination and on the basis of her marks obtained, she has been assigned Rank No. 7 in the Rank List. Unfortunately, this crucial distinction has not been noted in the correct perspective by the High Court. There is also a background for this Note. Prior to 2002, Computer Word Processing was not otherwise part of the curriculum of KGTE, it was introduced subsequently. That was the reason, the Note was introduced. Those who possessed the qualification prior to 2002 should additionally have the Computer Word Processing and they should also produce a separate certificate in that regard.5. In that view of the matter, in the peculiar facts of this case, we find it difficult to appreciate the contention, though vehemently advanced by the learned counsel appearing for the Public Service Commission that the Notification required the applicant to possess the Computer Word Processing as well. That possessing read with the expression produce in the background of those candidates who qualified prior to 2002, makes the whole difference. | 1[ds]5. In that view of the matter, in the peculiar facts of this case, we find it difficult to appreciate the contention, though vehemently advanced by the learned counsel appearing for the Public Service Commission that the Notification required the applicant to possess the Computer Word Processing as well. That possessing read with the expression produce in the background of those candidates who qualified prior to 2002, makes the whole difference. | 1 | 593 | 82 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Kurian Joseph, J.1. Leave granted.2. The qualification for appointment of Lower Division Typist is prescribed in the Notification, which reads as follows :-“7. Qualifications :1. S.S.L.C. or its equivalent qualification.2. Lower Grade Certificate in KGTE Malayalam Typewriting.3. Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing or its equivalent (G.O.(P) No.17/2005/P&ARD dated 09.05.2005.Note 1 : Those who have passed KGTE Typewriting before January 2002 should produce separate certificate in Computer Word Processing or its equivalent.Certificates in Computer Word Processing issued by Central, State Government Departments/ Agencies/Societies, Universities after successfully completing course of study not less than three months duration are considered as equivalent.”3. Since the appellant herein possessed only a National Trade Certificate, the initial objection was that the same was not the equivalent to the prescribed qualification. That objection was recalled by the Public Service Commission and the appellant was included in the Rank List at Rank No.7. However, an objection was later taken that the Computer Word Processing possessed by the appellant is acquired only after the last date of Notification in 2009.4. In the case of the appellant, what she possessed is not KGTE Typewriting, but the equivalent qualification which has been approved by the Public Service Commission, in which case, what she is required is only to produce a separate certificate in Computer Word Processing. It may be seen that Note 1 says that those who have passed KGTE Typewriting before January, 2002, should produce separate certificate in Computer Word Processing. It is not in dispute that the appellant possesses an equivalent qualification of KGTE (English) Typewriting, but she did not have a separate certificate as far as the Computer Word Processing is concerned. No doubt, it is also a prescribed qualification. However, relaxation has been granted to those who acquired the qualification of KGTE prior to 2002, for producing a certificate regarding Computer Word Processing. Once the word produce is used, it can only be at the time of either verification of the records or at the time of written examination or at the time of appointment. In the case of the appellant, she had produced the certificate prior to the written examination and on the basis of her marks obtained, she has been assigned Rank No. 7 in the Rank List. Unfortunately, this crucial distinction has not been noted in the correct perspective by the High Court. There is also a background for this Note. Prior to 2002, Computer Word Processing was not otherwise part of the curriculum of KGTE, it was introduced subsequently. That was the reason, the Note was introduced. Those who possessed the qualification prior to 2002 should additionally have the Computer Word Processing and they should also produce a separate certificate in that regard.5. In that view of the matter, in the peculiar facts of this case, we find it difficult to appreciate the contention, though vehemently advanced by the learned counsel appearing for the Public Service Commission that the Notification required the applicant to possess the Computer Word Processing as well. That possessing read with the expression produce in the background of those candidates who qualified prior to 2002, makes the whole difference.
### Response:
1
### Explanation:
5. In that view of the matter, in the peculiar facts of this case, we find it difficult to appreciate the contention, though vehemently advanced by the learned counsel appearing for the Public Service Commission that the Notification required the applicant to possess the Computer Word Processing as well. That possessing read with the expression produce in the background of those candidates who qualified prior to 2002, makes the whole difference.
|
State Bank of India Vs. Madras Bolts and Nuts Private Limited and Others | 1. The appellant-State Bank of India had filed this suit against M/s Madras Bolts & Nuts (P) Ltd. and its three Directors, Defendants 2 to 4, of which the 2nd defendant is the Managing Director. The suit was for recovery of a sum of Rs 2, 47, 797.18 with future interest as set out therein under a cash credit (Mundy Type) Account and Rs 22, 133.40 under an overdraft against bills account. The three Directors of the first defendant Company had given personal guarantees and the 1st defendant Company had executed promissory notes as collateral security for repayment of the amounts due and payable by the first defendant Company under these accounts. Defendants 1 and 2 did not contest the suit. The only contestants were Defendants 3 and 42. Defendants 3 and 4 had resigned as Directors of the Company w.e.f. 12-8-1966. At the hearing of the suit, it was conceded on behalf of the Bank that Defendants 3 and 4 would be liable only in respect of the liabilities of the 1st defendant Company as of 12-8-1966. Learned advocate of the Bank also pressed the claim of the Bank against them only under the cash credit (Mundy Type) Account and on the amounts due and payable in this account as of 12-8-1966. On the basis of this concession, the learned Single Judge passed a decree against Defendants 1 and 2, as prayed. He passed a decree against Defendants 3 and 4 for a sum of Rs 1, 86, 889.97 with simple interest at 8.25% per annum from 12-8-1966 up to date without any rest and with future interest at 6% per annum from this date to the date of realisation. He also made an order for costs as set out therein. He also said that after the filing of the suit, a sum of Rs 95, 000 was realised by the plaintiff-Bank by selling the securities. Whatever amount had been realised, should go in partial satisfaction of the decree3. An appeal was filed against this judgment and decree by Defendants 3 and 4 before the Division Bench of the High Court. Defendants 3 and 4 contended that they would be entitled to the credit of certain payments received by the Bank from the Company after 12-8-1966. The other contention was that since they were required to discharge the liabilities of the Company as of 12-8-1966, they would be entitled to the benefit of the securities held by the Bank to cover the credit facilities granted by the Bank to the Company. Both the contentions were upheld by the Division Bench of the High Court. Hence the Bank has filed this appeal 4. In respect of the first contention, the learned Single Judge has examined the nature of the credit entries in the account after 12-8-1966 and has held that the subsequent credit entries after 12-8-1966 amounting to Rs 91, 877.80 were out of the bills deposited against drawings by cheques for purchasing raw materials, and these credit entries are appropriated towards the liabilities so incurred. Since the plaintiff-Bank has specifically appropriated these sums towards liabilities subsequently incurred, Defendants 3 and 4 cannot get the benefit of these amounts subsequently paid to the Bank. We agree with this reasoning of the learned Single Judge 5. The only other question which remains is in respect of the securities in the form of raw material, plant and machinery of the Company held by the plaintiff-Bank to secure the amounts advanced by the Bank to the Company. Obviously, these securities cover not merely the claim of the Bank against the Company up to 12-8-1966, but they also cover the claim of the Bank against the Company in respect of the liabilities arising after 12-8-1966 also, whether they be in the form of interest or in any other form. Since the securities cover the entire liability of the Company, these cannot be availed of by the original Defendants 3 and 4 only in respect of the liability of the Company up to 12-8-1966. It is also necessary to note that the securities have been subsequently sold and have realised only a sum of Rs 95, 000. Looking to the claim which has been decreed against the Company, it is clear that the liability of the Company which covers the entire period is much larger than the liability of Defendants 3 and 4, and the difference is in excess of Rs 95, 000. The finding of the Division Bench that the value of the goods available as security at the time when Defendants 3 and 4 resigned as Directors of the Company, should be taken into account while determining the liability of Defendants 3 and 4, is erroneous. Mr E. C. Agarwala, learned counsel for Defendants 3 and 4 has placed strong reliance on Section 141 of the Indian Contract Act, 1872. Section 141, however, envisages a case where the liability of the surety is coextensive with the liability of the principal debtor. It provides that such a surety would be entitled to the benefit of every security which the creditor had against the principal debtor at the time when the contract of suretyship was entered into. Such is not the case here. Moreover, the interpretation put on Section 141 by the Division Bench, in our view, is not correct | 1[ds]Obviously, these securities cover not merely the claim of the Bank against the Company up tobut they also cover the claim of the Bank against the Company in respect of the liabilities arising afteralso, whether they be in the form of interest or in any other form. Since the securities cover the entire liability of the Company, these cannot be availed of by the original Defendants 3 and 4 only in respect of the liability of the Company up toIt is also necessary to note that the securities have been subsequently sold and have realised only a sum of Rs 95, 000. Looking to the claim which has been decreed against the Company, it is clear that the liability of the Company which covers the entire period is much larger than the liability of Defendants 3 and 4, and the difference is in excess of Rs 95, 000. The finding of the Division Bench that the value of the goods available as security at the time when Defendants 3 and 4 resigned as Directors of the Company, should be taken into account while determining the liability of Defendants 3 and 4, is erroneous. Mr E. C. Agarwala, learned counsel for Defendants 3 and 4 has placed strong reliance on Section 141 of the Indian Contract Act, 1872. Section 141, however, envisages a case where the liability of the surety is coextensive with the liability of the principal debtor. It provides that such a surety would be entitled to the benefit of every security which the creditor had against the principal debtor at the time when the contract of suretyship was entered into. Such is not the case here. Moreover, the interpretation put on Section 141 by the Division Bench, in our view, is not correct | 1 | 964 | 324 | ### 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:
1. The appellant-State Bank of India had filed this suit against M/s Madras Bolts & Nuts (P) Ltd. and its three Directors, Defendants 2 to 4, of which the 2nd defendant is the Managing Director. The suit was for recovery of a sum of Rs 2, 47, 797.18 with future interest as set out therein under a cash credit (Mundy Type) Account and Rs 22, 133.40 under an overdraft against bills account. The three Directors of the first defendant Company had given personal guarantees and the 1st defendant Company had executed promissory notes as collateral security for repayment of the amounts due and payable by the first defendant Company under these accounts. Defendants 1 and 2 did not contest the suit. The only contestants were Defendants 3 and 42. Defendants 3 and 4 had resigned as Directors of the Company w.e.f. 12-8-1966. At the hearing of the suit, it was conceded on behalf of the Bank that Defendants 3 and 4 would be liable only in respect of the liabilities of the 1st defendant Company as of 12-8-1966. Learned advocate of the Bank also pressed the claim of the Bank against them only under the cash credit (Mundy Type) Account and on the amounts due and payable in this account as of 12-8-1966. On the basis of this concession, the learned Single Judge passed a decree against Defendants 1 and 2, as prayed. He passed a decree against Defendants 3 and 4 for a sum of Rs 1, 86, 889.97 with simple interest at 8.25% per annum from 12-8-1966 up to date without any rest and with future interest at 6% per annum from this date to the date of realisation. He also made an order for costs as set out therein. He also said that after the filing of the suit, a sum of Rs 95, 000 was realised by the plaintiff-Bank by selling the securities. Whatever amount had been realised, should go in partial satisfaction of the decree3. An appeal was filed against this judgment and decree by Defendants 3 and 4 before the Division Bench of the High Court. Defendants 3 and 4 contended that they would be entitled to the credit of certain payments received by the Bank from the Company after 12-8-1966. The other contention was that since they were required to discharge the liabilities of the Company as of 12-8-1966, they would be entitled to the benefit of the securities held by the Bank to cover the credit facilities granted by the Bank to the Company. Both the contentions were upheld by the Division Bench of the High Court. Hence the Bank has filed this appeal 4. In respect of the first contention, the learned Single Judge has examined the nature of the credit entries in the account after 12-8-1966 and has held that the subsequent credit entries after 12-8-1966 amounting to Rs 91, 877.80 were out of the bills deposited against drawings by cheques for purchasing raw materials, and these credit entries are appropriated towards the liabilities so incurred. Since the plaintiff-Bank has specifically appropriated these sums towards liabilities subsequently incurred, Defendants 3 and 4 cannot get the benefit of these amounts subsequently paid to the Bank. We agree with this reasoning of the learned Single Judge 5. The only other question which remains is in respect of the securities in the form of raw material, plant and machinery of the Company held by the plaintiff-Bank to secure the amounts advanced by the Bank to the Company. Obviously, these securities cover not merely the claim of the Bank against the Company up to 12-8-1966, but they also cover the claim of the Bank against the Company in respect of the liabilities arising after 12-8-1966 also, whether they be in the form of interest or in any other form. Since the securities cover the entire liability of the Company, these cannot be availed of by the original Defendants 3 and 4 only in respect of the liability of the Company up to 12-8-1966. It is also necessary to note that the securities have been subsequently sold and have realised only a sum of Rs 95, 000. Looking to the claim which has been decreed against the Company, it is clear that the liability of the Company which covers the entire period is much larger than the liability of Defendants 3 and 4, and the difference is in excess of Rs 95, 000. The finding of the Division Bench that the value of the goods available as security at the time when Defendants 3 and 4 resigned as Directors of the Company, should be taken into account while determining the liability of Defendants 3 and 4, is erroneous. Mr E. C. Agarwala, learned counsel for Defendants 3 and 4 has placed strong reliance on Section 141 of the Indian Contract Act, 1872. Section 141, however, envisages a case where the liability of the surety is coextensive with the liability of the principal debtor. It provides that such a surety would be entitled to the benefit of every security which the creditor had against the principal debtor at the time when the contract of suretyship was entered into. Such is not the case here. Moreover, the interpretation put on Section 141 by the Division Bench, in our view, is not correct
### Response:
1
### Explanation:
Obviously, these securities cover not merely the claim of the Bank against the Company up tobut they also cover the claim of the Bank against the Company in respect of the liabilities arising afteralso, whether they be in the form of interest or in any other form. Since the securities cover the entire liability of the Company, these cannot be availed of by the original Defendants 3 and 4 only in respect of the liability of the Company up toIt is also necessary to note that the securities have been subsequently sold and have realised only a sum of Rs 95, 000. Looking to the claim which has been decreed against the Company, it is clear that the liability of the Company which covers the entire period is much larger than the liability of Defendants 3 and 4, and the difference is in excess of Rs 95, 000. The finding of the Division Bench that the value of the goods available as security at the time when Defendants 3 and 4 resigned as Directors of the Company, should be taken into account while determining the liability of Defendants 3 and 4, is erroneous. Mr E. C. Agarwala, learned counsel for Defendants 3 and 4 has placed strong reliance on Section 141 of the Indian Contract Act, 1872. Section 141, however, envisages a case where the liability of the surety is coextensive with the liability of the principal debtor. It provides that such a surety would be entitled to the benefit of every security which the creditor had against the principal debtor at the time when the contract of suretyship was entered into. Such is not the case here. Moreover, the interpretation put on Section 141 by the Division Bench, in our view, is not correct
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M/S. U. P. Electric Supply Co., Ltd Vs. The Workmen Of M/S. S. N. Choudhary,Contractors And Anoth | holidays; (iii) non-fixation of minimum wages of these workmen at par with the workmen employed by the company; and (iv) non-abolition of the contract system. Efforts at conciliation failed and thereupon the Government of Uttar Pradesh made a reference to the Industrial Tribunal under the U. P. Industrial Disputes Act, No. XXVIII of 1947, (hereinafter called the Act). In this reference only three points were referred out of the four which were before the conciliation board, namely, those relating to bonus, festival holidays and payment of wages to these workmen at part with the workmen of the company. The fourth point which was raised before the conciliation board (namely, non-abolition of the contract system) was not referred. The parties to this reference were two, namely-(i) the contractors and (ii) their workmen. The appellant was not a party to this reference. On August 13, 1956, another notification was issued by the U. P. Government under Ss. 3, 5 and 8 of the Act by which the company was impleaded as a party to the dispute referred by the notification of July 31, 1956. It is remarkable, however, that the matters of dispute which were specified in the reference dated July 31, 1956, were not amended as they could have been under the proviso to S. 4 of the Act, by adding the fourth point of dispute before the conciliation board, namely, the non-abolition of the contract system. When the matter came up before the industrial court in framed a number of issues; and the first and most important issue ran thus:"Are the workmen concerned employees of the U. P. Electric Supply Co. Ltd., Lucknow or of Messrs. S. M. Chaudhary, contractors?"2. The main objection of the company was that the dispute, if any, was between the contractors and their employees and that there was no dispute between the company and its workmen. It was further objected that there was no valid or legal order of the Government referring any dispute between the company and its workmen to the tribunal and therefore the tribunal had no jurisdiction. On the merits it was urged that the workmen concerned were not the workmen of the company and there was no relationship of employer and employee between the company and these workmen and therefore the company could not be regarded as a party to the dispute between the contractors and their workmen.3. It is therefore clear that the main question which was considered by the tribunal was whether the workmen concerned were the workmen of the company or of the contractors. As the tribunal itself says,"the crux of the whole case was whether the workmen concerned were the employees of the company".The tribunal went into the evidence in this connection and came to the conclusion that these workmen were in fact and in reality the employees of the company.4. The main contention on behalf of the company before us is that even assuming that the Government had power under S. 5 read with Cl. 12 of G. O. No. U-464 (LL) XXXVI-B-257 (LL) 1954, dated July 14, 1954, to implead the company as a party, the main issue decided by the tribunal was not referred to in and the tribunal could only decide the three matters of dispute included in the order of reference of July 31, 1956. Therefore, in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it.5. We are of opinion that this contention must prevail. As we have already pointed out, there were four matters before the conciliation board including the question of non-abolition of the contract system. Further before the conciliation board not only the contractors but the company was also a party, for obviously the question of non-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. When however the Government referred the dispute to the tribunal on July 31, it did not include the fourth item which was before the conciliation board relating to the non-abolition of the contract system among the matters in dispute. It also did not include the company as one of the parties to the dispute, for the reference-order refers only two parties to the dispute, namely, the contractors and their workmen. On such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors, for such a question was not referred to the tribunal. It is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31; but the matters in dispute remained unamended, and the question of non-abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to S. 4 of the Act. In these circumstances, it is immaterial to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not.Assuming that it was legal and valid, the fact remains that issue No. 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31, 1956. In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction.The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits. | 1[ds]Therefore, in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it.5. We are of opinion that this contention must prevail. As we have already pointed out, there were four matters before the conciliation board including the question of non-abolition of the contract system. Further before the conciliation board not only the contractors but the company was also a party, for obviously the question of non-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. When however the Government referred the dispute to the tribunal on July 31, it did not include the fourth item which was before the conciliation board relating to the non-abolition of the contract system among the matters in dispute. It also did not include the company as one of the parties to the dispute, for the reference-order refers only two parties to the dispute, namely, the contractors and their workmen. On such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors, for such a question was not referred to the tribunal. It is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31; but the matters in dispute remained unamended, and the question of non-abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to S. 4 of the Act. In these circumstances, it is immaterial to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not.Assuming that it was legal and valid, the fact remains that issue No. 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31,In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction.The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits. | 1 | 1,277 | 477 | ### 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:
holidays; (iii) non-fixation of minimum wages of these workmen at par with the workmen employed by the company; and (iv) non-abolition of the contract system. Efforts at conciliation failed and thereupon the Government of Uttar Pradesh made a reference to the Industrial Tribunal under the U. P. Industrial Disputes Act, No. XXVIII of 1947, (hereinafter called the Act). In this reference only three points were referred out of the four which were before the conciliation board, namely, those relating to bonus, festival holidays and payment of wages to these workmen at part with the workmen of the company. The fourth point which was raised before the conciliation board (namely, non-abolition of the contract system) was not referred. The parties to this reference were two, namely-(i) the contractors and (ii) their workmen. The appellant was not a party to this reference. On August 13, 1956, another notification was issued by the U. P. Government under Ss. 3, 5 and 8 of the Act by which the company was impleaded as a party to the dispute referred by the notification of July 31, 1956. It is remarkable, however, that the matters of dispute which were specified in the reference dated July 31, 1956, were not amended as they could have been under the proviso to S. 4 of the Act, by adding the fourth point of dispute before the conciliation board, namely, the non-abolition of the contract system. When the matter came up before the industrial court in framed a number of issues; and the first and most important issue ran thus:"Are the workmen concerned employees of the U. P. Electric Supply Co. Ltd., Lucknow or of Messrs. S. M. Chaudhary, contractors?"2. The main objection of the company was that the dispute, if any, was between the contractors and their employees and that there was no dispute between the company and its workmen. It was further objected that there was no valid or legal order of the Government referring any dispute between the company and its workmen to the tribunal and therefore the tribunal had no jurisdiction. On the merits it was urged that the workmen concerned were not the workmen of the company and there was no relationship of employer and employee between the company and these workmen and therefore the company could not be regarded as a party to the dispute between the contractors and their workmen.3. It is therefore clear that the main question which was considered by the tribunal was whether the workmen concerned were the workmen of the company or of the contractors. As the tribunal itself says,"the crux of the whole case was whether the workmen concerned were the employees of the company".The tribunal went into the evidence in this connection and came to the conclusion that these workmen were in fact and in reality the employees of the company.4. The main contention on behalf of the company before us is that even assuming that the Government had power under S. 5 read with Cl. 12 of G. O. No. U-464 (LL) XXXVI-B-257 (LL) 1954, dated July 14, 1954, to implead the company as a party, the main issue decided by the tribunal was not referred to in and the tribunal could only decide the three matters of dispute included in the order of reference of July 31, 1956. Therefore, in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it.5. We are of opinion that this contention must prevail. As we have already pointed out, there were four matters before the conciliation board including the question of non-abolition of the contract system. Further before the conciliation board not only the contractors but the company was also a party, for obviously the question of non-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. When however the Government referred the dispute to the tribunal on July 31, it did not include the fourth item which was before the conciliation board relating to the non-abolition of the contract system among the matters in dispute. It also did not include the company as one of the parties to the dispute, for the reference-order refers only two parties to the dispute, namely, the contractors and their workmen. On such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors, for such a question was not referred to the tribunal. It is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31; but the matters in dispute remained unamended, and the question of non-abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to S. 4 of the Act. In these circumstances, it is immaterial to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not.Assuming that it was legal and valid, the fact remains that issue No. 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31, 1956. In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction.The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits.
### Response:
1
### Explanation:
Therefore, in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it.5. We are of opinion that this contention must prevail. As we have already pointed out, there were four matters before the conciliation board including the question of non-abolition of the contract system. Further before the conciliation board not only the contractors but the company was also a party, for obviously the question of non-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. When however the Government referred the dispute to the tribunal on July 31, it did not include the fourth item which was before the conciliation board relating to the non-abolition of the contract system among the matters in dispute. It also did not include the company as one of the parties to the dispute, for the reference-order refers only two parties to the dispute, namely, the contractors and their workmen. On such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors, for such a question was not referred to the tribunal. It is true that on August 13, 1956, the company was impleaded as a party to the dispute referred by the notification of July 31; but the matters in dispute remained unamended, and the question of non-abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to S. 4 of the Act. In these circumstances, it is immaterial to consider whether the impleading of the company as a party on August 13, 1956, was legal and valid or not.Assuming that it was legal and valid, the fact remains that issue No. 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31,In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction.The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits.
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Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta & Another | the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity. These provisions have to be read with S. 44, for that section provides that in the case of discontinuance of business of firm or of an association or dissolution of an association, liability to assessment is under Ch. IV and all the provisions of Ch. IV, so far as may be, apply to such assessment.8. Discontinuance of business has the same connotation in S. 44 as it has in S. 25 of the Act : it does not cover mere change in ownership or in the constitution of the unit of assessment. Section 44 is therefore attracted only when the business of a firm is discontinued, i.e., when there is complete cessation of the business and not when there is change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results. Under the ordinary law governing partnerships, modification in the constitution of the firm in the absence of a special agreement to the contrary amounts to dissolution of the firm and reconstitution thereof, a firm at common law being a group of individuals who have agreed to share the profits of a business carried on by all or any of them acting for all, and supersession of the agreement brings about an end of the relation. But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it: it invests the firm with a personality which survives reconstitution. A firm discontinuing its business may be assessed in the manner provided by S. 25(1) in the year of account in which it discontinues its business: it may also be assessed in the year of assessment. In either case it is the assessment of the income of the firm. Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under S. 26(1) and if there be succession to the business, assessment has to be made under S. 26(2). The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory. Therefore even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm. When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share. This scheme of assessment furnishes the reason for omitting reference to dissolution of a firm from S. 44 when such dissolution is not accompanied by discontinuance of the business.9. A firm after it has discontinued its business whether it is dissolved or not, will therefore be assessed either under S. 25(1) prematurely, or in the year of assessment, in both cases the procedure of assessment is as under S. 23(3) and (4) supplemented by sub-sec. (5). Section 44 provides an added incident that all persons who were partners at the time of discontinuance are jointly and severally liable to pay the tax payable by the firm. Under S. 23(5) by the second proviso to cl. (a) in the case of a registered firm the firm is liable to pay tax on the share of the income of a partner only in the case of a partner who is non-resident. On the discontinuance of the business of a firm however by S. 44 a joint and several liability of all partners arises to pay tax due by the firm. Except the general provisions relating to premature assessment under S. 25(1) and assessment on succession under S. 26(2) there is, in the Act, no provision which imposes joint and several liability on members of an association of persons, on dissolution or discontinuance of business and that is presumably the reason why S.44 was enacted as it stood prior to its amendment in 1958. Absence of reference to dissolution of a firm (not resulting in discontinuance) in S. 44 was therefore a logical sequal to the provisions relating to assessment of firms contained in Ch. IV, especially Ss. 23(5), 25(1), 26(1) and (2).10. Balmukund Radheshyam was an unregistered firm and by the discontinuance of the business it neither ceased to be liable to pay tax on the income earned by it, nor could a procedure different from the one prescribed under Ch. IV apply for the assessment of the income of that firm.11. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on dissolution of the firm. It is however necessary once more to observe, as we did in C. A. Abrahams case, (1961) 2 SCR 765 : (AIR 1961 SC 609) that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the Revenue Authorities. It is for the Revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extra-ordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment levy and collection of Income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by pass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities. | 0[ds]The object of the enactment is clear : it is to authorise assessment of tax on income, profits or gains earned in a business, profession or vocation carried on by a firm or association before discontinuance of the business, profession or vocation, or before dissolution of the association, and to impose joint and several liability upon every person who was at the time of discontinuance a partner of the firm or a member of the association or at the time of dissolution a member of the association.Balmukund Radheshyam was an unregistered firm and by the discontinuance of the business it neither ceased to be liable to pay tax on the income earned by it, nor could a procedure different from the one prescribed under Ch. IV apply for the assessment of the income of that firm.11. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on dissolution of the firm. It is however necessary once more to observe, as we did in C. A. Abrahams case, (1961) 2 SCR 765 : (AIR 1961 SC 609) that theAct provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the Revenue Authorities. It is for the Revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of itsjurisdiction conferred or recognised by the Constitution in matters relating to assessment levy and collection ofmay be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by pass the provisions of theAct by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities. | 0 | 2,904 | 373 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity. These provisions have to be read with S. 44, for that section provides that in the case of discontinuance of business of firm or of an association or dissolution of an association, liability to assessment is under Ch. IV and all the provisions of Ch. IV, so far as may be, apply to such assessment.8. Discontinuance of business has the same connotation in S. 44 as it has in S. 25 of the Act : it does not cover mere change in ownership or in the constitution of the unit of assessment. Section 44 is therefore attracted only when the business of a firm is discontinued, i.e., when there is complete cessation of the business and not when there is change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results. Under the ordinary law governing partnerships, modification in the constitution of the firm in the absence of a special agreement to the contrary amounts to dissolution of the firm and reconstitution thereof, a firm at common law being a group of individuals who have agreed to share the profits of a business carried on by all or any of them acting for all, and supersession of the agreement brings about an end of the relation. But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it: it invests the firm with a personality which survives reconstitution. A firm discontinuing its business may be assessed in the manner provided by S. 25(1) in the year of account in which it discontinues its business: it may also be assessed in the year of assessment. In either case it is the assessment of the income of the firm. Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under S. 26(1) and if there be succession to the business, assessment has to be made under S. 26(2). The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory. Therefore even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm. When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share. This scheme of assessment furnishes the reason for omitting reference to dissolution of a firm from S. 44 when such dissolution is not accompanied by discontinuance of the business.9. A firm after it has discontinued its business whether it is dissolved or not, will therefore be assessed either under S. 25(1) prematurely, or in the year of assessment, in both cases the procedure of assessment is as under S. 23(3) and (4) supplemented by sub-sec. (5). Section 44 provides an added incident that all persons who were partners at the time of discontinuance are jointly and severally liable to pay the tax payable by the firm. Under S. 23(5) by the second proviso to cl. (a) in the case of a registered firm the firm is liable to pay tax on the share of the income of a partner only in the case of a partner who is non-resident. On the discontinuance of the business of a firm however by S. 44 a joint and several liability of all partners arises to pay tax due by the firm. Except the general provisions relating to premature assessment under S. 25(1) and assessment on succession under S. 26(2) there is, in the Act, no provision which imposes joint and several liability on members of an association of persons, on dissolution or discontinuance of business and that is presumably the reason why S.44 was enacted as it stood prior to its amendment in 1958. Absence of reference to dissolution of a firm (not resulting in discontinuance) in S. 44 was therefore a logical sequal to the provisions relating to assessment of firms contained in Ch. IV, especially Ss. 23(5), 25(1), 26(1) and (2).10. Balmukund Radheshyam was an unregistered firm and by the discontinuance of the business it neither ceased to be liable to pay tax on the income earned by it, nor could a procedure different from the one prescribed under Ch. IV apply for the assessment of the income of that firm.11. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on dissolution of the firm. It is however necessary once more to observe, as we did in C. A. Abrahams case, (1961) 2 SCR 765 : (AIR 1961 SC 609) that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the Revenue Authorities. It is for the Revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extra-ordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment levy and collection of Income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by pass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities.
### Response:
0
### Explanation:
The object of the enactment is clear : it is to authorise assessment of tax on income, profits or gains earned in a business, profession or vocation carried on by a firm or association before discontinuance of the business, profession or vocation, or before dissolution of the association, and to impose joint and several liability upon every person who was at the time of discontinuance a partner of the firm or a member of the association or at the time of dissolution a member of the association.Balmukund Radheshyam was an unregistered firm and by the discontinuance of the business it neither ceased to be liable to pay tax on the income earned by it, nor could a procedure different from the one prescribed under Ch. IV apply for the assessment of the income of that firm.11. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on dissolution of the firm. It is however necessary once more to observe, as we did in C. A. Abrahams case, (1961) 2 SCR 765 : (AIR 1961 SC 609) that theAct provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the Revenue Authorities. It is for the Revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of itsjurisdiction conferred or recognised by the Constitution in matters relating to assessment levy and collection ofmay be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by pass the provisions of theAct by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities.
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Central Board Of Direct Taxes & Ors. New Delhi Vs. Oberoi Hotels (India) Pvt. Ltd | elements comprised in the contract. 26. There is no gainsaying that running a w ell equipped modern hotel is no ordinary affair. One needs a great deal of expertise skill and technical knowledge for the purpose. If we examine the agreement, it provides for rendering of technical services and also professional services fo r obtaining of Hotel Soaltee, a foreign enterprise. CBDT fell into an error in considering particularly the clause in the agreement which provided for operation of the Hotel Soaltee by the respondent. The agreement has to be seen as a whole and so examined it is quite apparent that it provided for rendering of not only technical services for operating the hotel of the foreign enterprise but also providing for professional and other services in connection with operating of the hotel. Section 80-0 was enacted with the twin objects of encouraging the export of Indian technical know-how and augmentation of foreign exchange resources of the country. We have seen above that after the amendment of section 80-0 by Finance (No. 2 Act of 1991) the words "technical or professional services" have been inserted in place of the words "technical services". But this Court in Continental Construction Ltd. case took the view that the amendment was only of clarificatory nature and the term "technical services" always included within it professional services as well. This Court has gone even to the extent that when a person consults the lawyer and seeks his opinion on certain issue the advice rendered by the lawyer would be a piece of technical service. Considering the scope of the agreement and the width of Section 80-0 we are of the opinion that the agreement provides for "information concerning industrial, commercial or scientific knowledge, experience or skill made available " by the respondent to the foreign enterprise for running of the Hotel Soaltee. Mr. Dave is right when he submits that in view of the judgment of this court in Continental Construction Ltd. case Circular No. 187 dated December 23, 1975 of the CBDT may perhaps require certain changes so as it is in conformity with Section 80-0 of the Act. In J.K. (Bombay) Ltd. case Delhi High court was of the view that remuneration obtained by running or managing a foreign company would be in the nature of profits while Sections 80-0 deliberately restricted itself to income by way of royalty, commission or fees and included other types of remuneration. We do not think that this is a correct statement as the royalty, commission or fees can be in terms of percentage of profits earned by the foreign enterprise on account of services rendered by the Indian Company. It is substance of the case which matters and not the name. The view taken by the Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. case commends to us. As it is more in consonance with the provision of Sections 80-0 and the object which it seeks to achieve. Karnataka High Court in the case of HMT Ltd. has rather taken a narrow view of the provision of Sections 80-0. Applying the principles of law as laid down by Court in Continental Construction Ltd. case and the term "technical services" which included "professional services" and the nature of services agreed to be rendered by the respondent to the foreign enterprise we are of the view that CBDT was not right in not granting approval of the agreement to the respondent under Sections 80-0 of the Act. We have also seen the scope of circulars issued b y the CBDT and had these are to be acted upon in various decisions of this Court. In the matter of the nature as in the present case and the legislative intention to give relief we have to draw interpretation to the term "technical services" which includes "professional services" as well. basic purpose of Sections 80-0 is the spread by an Indian assessee of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill of the assessee for use outside India and it that process to receive income to augment the foreign exchange resources of the country. The assessee can also made available to foreign enterprise technical and professional services expertise of which it possesses for earning foreign exchange for the country.When exercising power of judicial review, courts have to see that the authority acts within the scope o f its powers and, if discretion is conferred on the authority, it exercises the same in reasonable manner keeping in view the object which the statute seeks to achieve. We have no doubt that the decision of CBDT in not granting approval to the agreement was in good faith and it is the latest development of law both on the scope of judicial review and interpretation of Sections 80-0 that the decision has to be reversed. As law stands today with reference to Section 80- 0, it can be said that CBDT took into account the considerations which were not relevant or germane to the real issue. In this view of the matter there is no ground for interference in the impugned judgment of the High Court. It was submitted by Mr. Shukla that in view of the decision in Godrej and Boyce Mfg. Co. Ltd. (supra) of the Bombay High Court, this Court, if it decides to hold that the decision of the CBDT was not correct, the matter should be again remanded back to CBDT to grant approval or otherwise of the agreement keeping in view the latest development in law and the parameters laid down by us in this case. Normally, we would have adopted this very course, but in the present case, the matter relates to the year 1970 we do not find it will be proper for us to interfere in the impugned judgment of the High Court and sent the matter back to the CBDT for fresh appraisal. 27. | 0[ds]There is no gainsaying that running a w ell equipped modern hotel is no ordinary affair. One needs a great deal of expertise skill and technical knowledge for the purpose. If we examine the agreement, it provides for rendering of technical services and also professional services fo r obtaining of Hotel Soaltee, a foreign enterprise. CBDT fell into an error in considering particularly the clause in the agreement which provided for operation of the Hotel Soaltee by the respondent. The agreement has to be seen as a whole and so examined it is quite apparent that it provided for rendering of not only technical services for operating the hotel of the foreign enterprise but also providing for professional and other services in connection with operating of the hotel. Section 80-0 was enacted with the twin objects of encouraging the export of Indian technical know-how and augmentation of foreign exchange resources of the country. We have seen above that after the amendment of section 80-0 by Finance (No. 2 Act of 1991) the words "technical or professional services" have been inserted in place of the words "technical services". But this Court in Continental Construction Ltd. case took the view that the amendment was only of clarificatory nature and the term "technical services" always included within it professional services as well. This Court has gone even to the extent that when a person consults the lawyer and seeks his opinion on certain issue the advice rendered by the lawyer would be a piece of technical service. Considering the scope of the agreement and the width of Section 80-0 we are of the opinion that the agreement provides for "information concerning industrial, commercial or scientific knowledge, experience or skill made available " by the respondent to the foreign enterprise for running of the Hotel Soaltee. Mr. Dave is right when he submits that in view of the judgment of this court in Continental Construction Ltd. case Circular No. 187 dated December 23, 1975 of the CBDT may perhaps require certain changes so as it is in conformity with Section 80-0 of the Act. In J.K. (Bombay) Ltd. case Delhi High court was of the view that remuneration obtained by running or managing a foreign company would be in the nature of profits while Sections 80-0 deliberately restricted itself to income by way of royalty, commission or fees and included other types of remuneration. We do not think that this is a correct statement as the royalty, commission or fees can be in terms of percentage of profits earned by the foreign enterprise on account of services rendered by the Indian Company. It is substance of the case which matters and not the name. The view taken by the Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. case commends to us. As it is more in consonance with the provision of Sections 80-0 and the object which it seeks to achieve. Karnataka High Court in the case of HMT Ltd. has rather taken a narrow view of the provision of Sections 80-0. Applying the principles of law as laid down by Court in Continental Construction Ltd. case and the term "technical services" which included "professional services" and the nature of services agreed to be rendered by the respondent to the foreign enterprise we are of the view that CBDT was not right in not granting approval of the agreement to the respondent under Sections 80-0 of the Act. We have also seen the scope of circulars issued b y the CBDT and had these are to be acted upon in various decisions of this Court. In the matter of the nature as in the present case and the legislative intention to give relief we have to draw interpretation to the term "technical services" which includes "professional services" as well. basic purpose of Sections 80-0 is the spread by an Indian assessee of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill of the assessee for use outside India and it that process to receive income to augment the foreign exchange resources of the country. The assessee can also made available to foreign enterprise technical and professional services expertise of which it possesses for earning foreign exchange for the country.When exercising power of judicial review, courts have to see that the authority acts within the scope o f its powers and, if discretion is conferred on the authority, it exercises the same in reasonable manner keeping in view the object which the statute seeks to achieve. We have no doubt that the decision of CBDT in not granting approval to the agreement was in good faith and it is the latest development of law both on the scope of judicial review and interpretation of Sections 80-0 that the decision has to be reversed. As law stands today with reference to Section 80- 0, it can be said that CBDT took into account the considerations which were not relevant or germane to the real issue. In this view of the matter there is no ground for interference in the impugned judgment of the High Court. It was submitted by Mr. Shukla that in view of the decision in Godrej and Boyce Mfg. Co. Ltd. (supra) of the Bombay High Court, this Court, if it decides to hold that the decision of the CBDT was not correct, the matter should be again remanded back to CBDT to grant approval or otherwise of the agreement keeping in view the latest development in law and the parameters laid down by us in this case. Normally, we would have adopted this very course, but in the present case, the matter relates to the year 1970 we do not find it will be proper for us to interfere in the impugned judgment of the High Court and sent the matter back to the CBDT for fresh appraisal. | 0 | 10,978 | 1,074 | ### 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:
elements comprised in the contract. 26. There is no gainsaying that running a w ell equipped modern hotel is no ordinary affair. One needs a great deal of expertise skill and technical knowledge for the purpose. If we examine the agreement, it provides for rendering of technical services and also professional services fo r obtaining of Hotel Soaltee, a foreign enterprise. CBDT fell into an error in considering particularly the clause in the agreement which provided for operation of the Hotel Soaltee by the respondent. The agreement has to be seen as a whole and so examined it is quite apparent that it provided for rendering of not only technical services for operating the hotel of the foreign enterprise but also providing for professional and other services in connection with operating of the hotel. Section 80-0 was enacted with the twin objects of encouraging the export of Indian technical know-how and augmentation of foreign exchange resources of the country. We have seen above that after the amendment of section 80-0 by Finance (No. 2 Act of 1991) the words "technical or professional services" have been inserted in place of the words "technical services". But this Court in Continental Construction Ltd. case took the view that the amendment was only of clarificatory nature and the term "technical services" always included within it professional services as well. This Court has gone even to the extent that when a person consults the lawyer and seeks his opinion on certain issue the advice rendered by the lawyer would be a piece of technical service. Considering the scope of the agreement and the width of Section 80-0 we are of the opinion that the agreement provides for "information concerning industrial, commercial or scientific knowledge, experience or skill made available " by the respondent to the foreign enterprise for running of the Hotel Soaltee. Mr. Dave is right when he submits that in view of the judgment of this court in Continental Construction Ltd. case Circular No. 187 dated December 23, 1975 of the CBDT may perhaps require certain changes so as it is in conformity with Section 80-0 of the Act. In J.K. (Bombay) Ltd. case Delhi High court was of the view that remuneration obtained by running or managing a foreign company would be in the nature of profits while Sections 80-0 deliberately restricted itself to income by way of royalty, commission or fees and included other types of remuneration. We do not think that this is a correct statement as the royalty, commission or fees can be in terms of percentage of profits earned by the foreign enterprise on account of services rendered by the Indian Company. It is substance of the case which matters and not the name. The view taken by the Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. case commends to us. As it is more in consonance with the provision of Sections 80-0 and the object which it seeks to achieve. Karnataka High Court in the case of HMT Ltd. has rather taken a narrow view of the provision of Sections 80-0. Applying the principles of law as laid down by Court in Continental Construction Ltd. case and the term "technical services" which included "professional services" and the nature of services agreed to be rendered by the respondent to the foreign enterprise we are of the view that CBDT was not right in not granting approval of the agreement to the respondent under Sections 80-0 of the Act. We have also seen the scope of circulars issued b y the CBDT and had these are to be acted upon in various decisions of this Court. In the matter of the nature as in the present case and the legislative intention to give relief we have to draw interpretation to the term "technical services" which includes "professional services" as well. basic purpose of Sections 80-0 is the spread by an Indian assessee of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill of the assessee for use outside India and it that process to receive income to augment the foreign exchange resources of the country. The assessee can also made available to foreign enterprise technical and professional services expertise of which it possesses for earning foreign exchange for the country.When exercising power of judicial review, courts have to see that the authority acts within the scope o f its powers and, if discretion is conferred on the authority, it exercises the same in reasonable manner keeping in view the object which the statute seeks to achieve. We have no doubt that the decision of CBDT in not granting approval to the agreement was in good faith and it is the latest development of law both on the scope of judicial review and interpretation of Sections 80-0 that the decision has to be reversed. As law stands today with reference to Section 80- 0, it can be said that CBDT took into account the considerations which were not relevant or germane to the real issue. In this view of the matter there is no ground for interference in the impugned judgment of the High Court. It was submitted by Mr. Shukla that in view of the decision in Godrej and Boyce Mfg. Co. Ltd. (supra) of the Bombay High Court, this Court, if it decides to hold that the decision of the CBDT was not correct, the matter should be again remanded back to CBDT to grant approval or otherwise of the agreement keeping in view the latest development in law and the parameters laid down by us in this case. Normally, we would have adopted this very course, but in the present case, the matter relates to the year 1970 we do not find it will be proper for us to interfere in the impugned judgment of the High Court and sent the matter back to the CBDT for fresh appraisal. 27.
### Response:
0
### Explanation:
There is no gainsaying that running a w ell equipped modern hotel is no ordinary affair. One needs a great deal of expertise skill and technical knowledge for the purpose. If we examine the agreement, it provides for rendering of technical services and also professional services fo r obtaining of Hotel Soaltee, a foreign enterprise. CBDT fell into an error in considering particularly the clause in the agreement which provided for operation of the Hotel Soaltee by the respondent. The agreement has to be seen as a whole and so examined it is quite apparent that it provided for rendering of not only technical services for operating the hotel of the foreign enterprise but also providing for professional and other services in connection with operating of the hotel. Section 80-0 was enacted with the twin objects of encouraging the export of Indian technical know-how and augmentation of foreign exchange resources of the country. We have seen above that after the amendment of section 80-0 by Finance (No. 2 Act of 1991) the words "technical or professional services" have been inserted in place of the words "technical services". But this Court in Continental Construction Ltd. case took the view that the amendment was only of clarificatory nature and the term "technical services" always included within it professional services as well. This Court has gone even to the extent that when a person consults the lawyer and seeks his opinion on certain issue the advice rendered by the lawyer would be a piece of technical service. Considering the scope of the agreement and the width of Section 80-0 we are of the opinion that the agreement provides for "information concerning industrial, commercial or scientific knowledge, experience or skill made available " by the respondent to the foreign enterprise for running of the Hotel Soaltee. Mr. Dave is right when he submits that in view of the judgment of this court in Continental Construction Ltd. case Circular No. 187 dated December 23, 1975 of the CBDT may perhaps require certain changes so as it is in conformity with Section 80-0 of the Act. In J.K. (Bombay) Ltd. case Delhi High court was of the view that remuneration obtained by running or managing a foreign company would be in the nature of profits while Sections 80-0 deliberately restricted itself to income by way of royalty, commission or fees and included other types of remuneration. We do not think that this is a correct statement as the royalty, commission or fees can be in terms of percentage of profits earned by the foreign enterprise on account of services rendered by the Indian Company. It is substance of the case which matters and not the name. The view taken by the Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. case commends to us. As it is more in consonance with the provision of Sections 80-0 and the object which it seeks to achieve. Karnataka High Court in the case of HMT Ltd. has rather taken a narrow view of the provision of Sections 80-0. Applying the principles of law as laid down by Court in Continental Construction Ltd. case and the term "technical services" which included "professional services" and the nature of services agreed to be rendered by the respondent to the foreign enterprise we are of the view that CBDT was not right in not granting approval of the agreement to the respondent under Sections 80-0 of the Act. We have also seen the scope of circulars issued b y the CBDT and had these are to be acted upon in various decisions of this Court. In the matter of the nature as in the present case and the legislative intention to give relief we have to draw interpretation to the term "technical services" which includes "professional services" as well. basic purpose of Sections 80-0 is the spread by an Indian assessee of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill of the assessee for use outside India and it that process to receive income to augment the foreign exchange resources of the country. The assessee can also made available to foreign enterprise technical and professional services expertise of which it possesses for earning foreign exchange for the country.When exercising power of judicial review, courts have to see that the authority acts within the scope o f its powers and, if discretion is conferred on the authority, it exercises the same in reasonable manner keeping in view the object which the statute seeks to achieve. We have no doubt that the decision of CBDT in not granting approval to the agreement was in good faith and it is the latest development of law both on the scope of judicial review and interpretation of Sections 80-0 that the decision has to be reversed. As law stands today with reference to Section 80- 0, it can be said that CBDT took into account the considerations which were not relevant or germane to the real issue. In this view of the matter there is no ground for interference in the impugned judgment of the High Court. It was submitted by Mr. Shukla that in view of the decision in Godrej and Boyce Mfg. Co. Ltd. (supra) of the Bombay High Court, this Court, if it decides to hold that the decision of the CBDT was not correct, the matter should be again remanded back to CBDT to grant approval or otherwise of the agreement keeping in view the latest development in law and the parameters laid down by us in this case. Normally, we would have adopted this very course, but in the present case, the matter relates to the year 1970 we do not find it will be proper for us to interfere in the impugned judgment of the High Court and sent the matter back to the CBDT for fresh appraisal.
|
State of Jammu & Kashmir Vs. M/s. Trikuta Roller Flour Mills Pvt. Ltd. & Others | respective submissions have received our thoughtful consideration. The grant of refund on CST paid, to boost entrepreneur investment was primarily an executive economic policy decision. The scope for judicial scrutiny and interference with the same, has to be restricted to arbitrariness and unreasonableness as observed in Ugar Sugar Works Ltd. v. Delhi Admn., 2001(3) R.C.R (Civil) 219 : (2001) 3 SCC 635 , as follows:-"18.....It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."10. The respondents had no legal or indefeasible right to claim refund of CST paid by them. The policy rested on an executive decision to encourage entrepreneur investment. It naturally includes the power of the State to review the policy from time to time, including on considerations for the manner in which the policy was proving beneficial or detrimental to the larger public interest, and the State exchequer. The policy could therefore well be withdrawn or modified at any time for just, valid and cogent reasons. Judicial review of a policy decision, especially an economic policy decision, shall have to be restricted to the presence of just and valid reasons eschewing arbitrariness, so as not to fall foul of Article 14 of the Constitution. But, in the garb of judicial review, the Court will not examine the sufficiency or adequacy of the reasons or materials, in the manner of an appellate authority, to substitute its own wisdom for that of the government. That would tantamount to taking over of the executive decision making process.11. The appellant had specifically contended before the High Court that based on verification of complaints regarding refunds having been obtained without any payment of CST, causing revenue loss to the State, the decision had been taken in larger public interest. The High Court unfortunately dealt with it very cursorily, as a simple issue of administrative apathy without further discussion. The reasonableness in action on part of the State, in not having withdrawn the benefit completely, balancing competing interests, was considered negatively holding that it could have been completely withdrawn but not curtailed. Misuse of exemption, fraudulent claims for refund, affecting the financial health and coffers of the State can certainly be valid and germane reasons in the larger public interest, to restrict or revoke the benefit as observed in Commissioner of Commercial Taxes (Asstt.) v. Dharmendra Trading Co., (1988) 3 SCC 570 , as follows:-"4......It is well settled that if the government wants to resile from a promise or an assurance given by it on the ground that undue advantage was being taken or misuse was being made of the concessions granted the court may permit the government to do so but before allowing the government to resile from the promise or go back on the assurance the court would have to be satisfied that allegations by the government about misuse being made or undue advantage being taken of the concessions given by it were reasonably well established......"12. It is the contention of the appellants that in or about 1992, genuine doubts were entertained about the veracity of the refund claims of CST made by SSI units. A specific reference has been made by illustration to the case of the respondent in Civil Appeal No. 9844 of 2011. Enquiries were also made from the Excise and Taxation Officer II, Amritsar, as dealers at Amritsar were suspected of being in connivance with the dealers in the appellants State. It was observed on the basis of information furnished by the authorities at Amritsar that the original payee receipts produced by the SSI units in the appellant State, did not tally with that given by the sales tax authorities of Punjab, and who had also confirmed that the suppliers did not deposit any CST. Enquiries from the authorities at Punjab further revealed that M/s. Sewak Traders, one of the dealers of Punjab, from whom purchase was said to have been made, was found to be a non-existent trader in Amritsar district, never registered with the authorities at Punjab, and had never filed any return or deposited any taxes. Consequently, FIRs had been lodged, as also vigilance inquiries setup, as it was causing great amount of revenue loss to the State Exchequer. It was the further case of the appellants, that even otherwise, serious reservations were expressed time and again regarding the incentives, observing that they were regular eroding the non-plan resources of the State and that curtailment was becoming unavoidable. These were all relevant considerations, the State being the guardian of State finances.13. There has been much passage of time since the issue originated and the litigation that followed. The mere fact that ample documentary evidence may not be available with the State today, for valid reasons as mentioned in the additional affidavit, it cannot be held that what was valid when done, must be pronounced as illegal today, merely because the evidence may have been lost with passage of time for unavoidable reasons. Undoubtedly, fraudulent refund claims obtained, would be contrary to the financial interests of the State, thereby affecting the larger public interest. The policy wisdom of the State that the grant of refund was eroding non-plan resources is a matter exclusively in the executive domain. | 1[ds]The High Court unfortunately dealt with it very cursorily, as a simple issue of administrative apathy without further discussion. The reasonableness in action on part of the State, in not having withdrawn the benefit completely, balancing competing interests, was considered negatively holding that it could have been completely withdrawn but not curtailed.It is the contention of the appellants that in or about 1992, genuine doubts were entertained about the veracity of the refund claims of CST made by SSI units. A specific reference has been made by illustration to the case of the respondent in Civil Appeal No. 9844 of 2011. Enquiries were also made from the Excise and Taxation Officer II, Amritsar, as dealers at Amritsar were suspected of being in connivance with the dealers in the appellants State. It was observed on the basis of information furnished by the authorities at Amritsar that the original payee receipts produced by the SSI units in the appellant State, did not tally with that given by the sales tax authorities of Punjab, and who had also confirmed that the suppliers did not deposit any CST. Enquiries from the authorities at Punjab further revealed that M/s. Sewak Traders, one of the dealers of Punjab, from whom purchase was said to have been made, was found to be atrader in Amritsar district, never registered with the authorities at Punjab, and had never filed any return or deposited any taxes. Consequently, FIRs had been lodged, as also vigilance inquiries setup, as it was causing great amount of revenue loss to the State Exchequer. It was the further case of the appellants, that even otherwise, serious reservations were expressed time and again regarding the incentives, observing that they were regular eroding theresources of the State and that curtailment was becoming unavoidable. These were all relevant considerations, the State being the guardian of State finances.13. There has been much passage of time since the issue originated and the litigation that followed. The mere fact that ample documentary evidence may not be available with the State today, for valid reasons as mentioned in the additional affidavit, it cannot be held that what was valid when done, must be pronounced as illegal today, merely because the evidence may have been lost with passage of time for unavoidable reasons. Undoubtedly, fraudulent refund claims obtained, would be contrary to the financial interests of the State, thereby affecting the larger public interest. The policy wisdom of the State that the grant of refund was erodingresources is a matter exclusively in the executive domain. | 1 | 2,026 | 470 | ### 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:
respective submissions have received our thoughtful consideration. The grant of refund on CST paid, to boost entrepreneur investment was primarily an executive economic policy decision. The scope for judicial scrutiny and interference with the same, has to be restricted to arbitrariness and unreasonableness as observed in Ugar Sugar Works Ltd. v. Delhi Admn., 2001(3) R.C.R (Civil) 219 : (2001) 3 SCC 635 , as follows:-"18.....It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."10. The respondents had no legal or indefeasible right to claim refund of CST paid by them. The policy rested on an executive decision to encourage entrepreneur investment. It naturally includes the power of the State to review the policy from time to time, including on considerations for the manner in which the policy was proving beneficial or detrimental to the larger public interest, and the State exchequer. The policy could therefore well be withdrawn or modified at any time for just, valid and cogent reasons. Judicial review of a policy decision, especially an economic policy decision, shall have to be restricted to the presence of just and valid reasons eschewing arbitrariness, so as not to fall foul of Article 14 of the Constitution. But, in the garb of judicial review, the Court will not examine the sufficiency or adequacy of the reasons or materials, in the manner of an appellate authority, to substitute its own wisdom for that of the government. That would tantamount to taking over of the executive decision making process.11. The appellant had specifically contended before the High Court that based on verification of complaints regarding refunds having been obtained without any payment of CST, causing revenue loss to the State, the decision had been taken in larger public interest. The High Court unfortunately dealt with it very cursorily, as a simple issue of administrative apathy without further discussion. The reasonableness in action on part of the State, in not having withdrawn the benefit completely, balancing competing interests, was considered negatively holding that it could have been completely withdrawn but not curtailed. Misuse of exemption, fraudulent claims for refund, affecting the financial health and coffers of the State can certainly be valid and germane reasons in the larger public interest, to restrict or revoke the benefit as observed in Commissioner of Commercial Taxes (Asstt.) v. Dharmendra Trading Co., (1988) 3 SCC 570 , as follows:-"4......It is well settled that if the government wants to resile from a promise or an assurance given by it on the ground that undue advantage was being taken or misuse was being made of the concessions granted the court may permit the government to do so but before allowing the government to resile from the promise or go back on the assurance the court would have to be satisfied that allegations by the government about misuse being made or undue advantage being taken of the concessions given by it were reasonably well established......"12. It is the contention of the appellants that in or about 1992, genuine doubts were entertained about the veracity of the refund claims of CST made by SSI units. A specific reference has been made by illustration to the case of the respondent in Civil Appeal No. 9844 of 2011. Enquiries were also made from the Excise and Taxation Officer II, Amritsar, as dealers at Amritsar were suspected of being in connivance with the dealers in the appellants State. It was observed on the basis of information furnished by the authorities at Amritsar that the original payee receipts produced by the SSI units in the appellant State, did not tally with that given by the sales tax authorities of Punjab, and who had also confirmed that the suppliers did not deposit any CST. Enquiries from the authorities at Punjab further revealed that M/s. Sewak Traders, one of the dealers of Punjab, from whom purchase was said to have been made, was found to be a non-existent trader in Amritsar district, never registered with the authorities at Punjab, and had never filed any return or deposited any taxes. Consequently, FIRs had been lodged, as also vigilance inquiries setup, as it was causing great amount of revenue loss to the State Exchequer. It was the further case of the appellants, that even otherwise, serious reservations were expressed time and again regarding the incentives, observing that they were regular eroding the non-plan resources of the State and that curtailment was becoming unavoidable. These were all relevant considerations, the State being the guardian of State finances.13. There has been much passage of time since the issue originated and the litigation that followed. The mere fact that ample documentary evidence may not be available with the State today, for valid reasons as mentioned in the additional affidavit, it cannot be held that what was valid when done, must be pronounced as illegal today, merely because the evidence may have been lost with passage of time for unavoidable reasons. Undoubtedly, fraudulent refund claims obtained, would be contrary to the financial interests of the State, thereby affecting the larger public interest. The policy wisdom of the State that the grant of refund was eroding non-plan resources is a matter exclusively in the executive domain.
### Response:
1
### Explanation:
The High Court unfortunately dealt with it very cursorily, as a simple issue of administrative apathy without further discussion. The reasonableness in action on part of the State, in not having withdrawn the benefit completely, balancing competing interests, was considered negatively holding that it could have been completely withdrawn but not curtailed.It is the contention of the appellants that in or about 1992, genuine doubts were entertained about the veracity of the refund claims of CST made by SSI units. A specific reference has been made by illustration to the case of the respondent in Civil Appeal No. 9844 of 2011. Enquiries were also made from the Excise and Taxation Officer II, Amritsar, as dealers at Amritsar were suspected of being in connivance with the dealers in the appellants State. It was observed on the basis of information furnished by the authorities at Amritsar that the original payee receipts produced by the SSI units in the appellant State, did not tally with that given by the sales tax authorities of Punjab, and who had also confirmed that the suppliers did not deposit any CST. Enquiries from the authorities at Punjab further revealed that M/s. Sewak Traders, one of the dealers of Punjab, from whom purchase was said to have been made, was found to be atrader in Amritsar district, never registered with the authorities at Punjab, and had never filed any return or deposited any taxes. Consequently, FIRs had been lodged, as also vigilance inquiries setup, as it was causing great amount of revenue loss to the State Exchequer. It was the further case of the appellants, that even otherwise, serious reservations were expressed time and again regarding the incentives, observing that they were regular eroding theresources of the State and that curtailment was becoming unavoidable. These were all relevant considerations, the State being the guardian of State finances.13. There has been much passage of time since the issue originated and the litigation that followed. The mere fact that ample documentary evidence may not be available with the State today, for valid reasons as mentioned in the additional affidavit, it cannot be held that what was valid when done, must be pronounced as illegal today, merely because the evidence may have been lost with passage of time for unavoidable reasons. Undoubtedly, fraudulent refund claims obtained, would be contrary to the financial interests of the State, thereby affecting the larger public interest. The policy wisdom of the State that the grant of refund was erodingresources is a matter exclusively in the executive domain.
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State Of Bombay Vs. Supreme General Films Exchange Ltd.(With Connected Appeal) | or not. As to the decision in ILR (1941) All 558: (AIR 1941 All 298 ), on which so much reliance has been placed by the appellant, it is necessary to point out that the question there was if the right of appeal created by S. 6A of the Court Fees Act, which was added by U. P. Act XIX of 1938, was available as against an order passed after the coming into force of the latter Act, although that Act was not in existence and consequently there was no right of appeal at the date of filing that plaint. It was held that the enactment by the amending Act of 1938, of S. 6A which allowed an appeal against an order demanding the payment of a deficiency in court fees did not take away any right which was vested in the plaintiff on the date on which he filed the plaint, it only conferred on him a new right; nor did it take away any right which was vested in the defendant, for though the defendant could object if the plaint was not properly stamped and might also have a right to have the matter determined by the court he had no vested right in the procedure by which it was to be determined, and this procedure could be changed pending the suit and a change in procedure could not be said to deprive him of any vested right. It would appear from what has been stated above that the decision proceeded on the footing that the amending Act conferred a new right of appeal, and not that it took away a vested right of appeal; and the reason of the decision was based on the principle that there is no vested right in the procedure by which the sufficiency of court fees is determined by a court. That is a principle of a different character from the one we are concerned with in the present case, viz., the retrospective effect of a subsequent enactment which either takes away a right of appeal or impairs it by imposing a more stringent or onerous condition thereon. We do not, therefore, think that the Allahabad decision helps the appellant.11. The question was considered in reverse in Delhi Cloth and General Mills Company Limited v. Income-tax Commissioner. Delhi, 54 Ind App 421 : (AIR 1927 PC 242 ), and the principle of colonial Sugar Refining Co. v. Irving, 1905 AC 369, was applied. Another decision in point is that of Nagandra Nath Bose v. Mon Mohan Singh, 34 Cal WN 1009: (AIR 1931 Cal 100 ). In that case the plaintiff instituted a suit for rent valued at Rs. 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on November 20, 1926, for Rs. 1,600. On December 19, 1928, an application was made under O. 21, R. 90 of the Code of Civil Procedure by the petitioner who was one of the judgment-debtors for setting aside the sale. That application having been dismissed for default of his appearance, the petitioner preferred an appeal to the District Judge, Hoogly, who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to S. 174 (c)of the Bengal Tenancy Act as amended by an amending Act of 1928. The contention of the petitioner was that the amending provision, which came into force on February 21, 1929, could not affect his right of appeal from the decision on an application made on December 19, 1928, for setting aside the sale. Mitter, J. said:"We think the contention of the petitioner is well-founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of Order 43, Rule 1 of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by S. 174 (5), proviso. The Court was bound to admit the appeal whether the appellant deposited the amount recoverable in execution of the decree or not. By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial - for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal."This decision was approved by this Court both in Hossein Kasam Dada, 1953 SCR 987 : (AIR 1953 Sc 221 ) and Garikapatti Veeraya, 1957 SCR 488 : ((S) AIR 1957 SC 540 ) (supra).12. It is thus clear that in a long lime of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. We are, therefore, of the view that the High Court was right in the view it took, and the orders of refund of excess court fees which it passed were correct in law. | 0[ds]7. It is necessary to state here what the High Court has clearly pointed out with regard to the amendments made by the Court-fees (Bombay Amendment) Act. 1954 (Bombay Act No. XII of 1954). On the relevant date the whole system of charging court fees in the Bombay High Court on the Original Side was altered and instead of a fixed fee payable on the plaint etc. ad valorem fees became leviable as in the districts. The change was effected inter alia by deleting S. 4 and amending S. 6 of the Court fees Act, 1870 and Art 1 of Schedule I to the Act. There was no provision, express or by necessary intendment, for giving retrospective effect to the amendments made in the sense of affecting a rights of appeal arising out of a suit instituted prior to the relevant date. As this position has not been contested, it is not necessary to read here the provisions of the amending Act.It is thus clear that in a long lime of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. We are, therefore, of the view that the High Court was right in the view it took, and the orders of refund of excess court fees which it passed were correct in law. | 0 | 3,891 | 301 | ### 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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or not. As to the decision in ILR (1941) All 558: (AIR 1941 All 298 ), on which so much reliance has been placed by the appellant, it is necessary to point out that the question there was if the right of appeal created by S. 6A of the Court Fees Act, which was added by U. P. Act XIX of 1938, was available as against an order passed after the coming into force of the latter Act, although that Act was not in existence and consequently there was no right of appeal at the date of filing that plaint. It was held that the enactment by the amending Act of 1938, of S. 6A which allowed an appeal against an order demanding the payment of a deficiency in court fees did not take away any right which was vested in the plaintiff on the date on which he filed the plaint, it only conferred on him a new right; nor did it take away any right which was vested in the defendant, for though the defendant could object if the plaint was not properly stamped and might also have a right to have the matter determined by the court he had no vested right in the procedure by which it was to be determined, and this procedure could be changed pending the suit and a change in procedure could not be said to deprive him of any vested right. It would appear from what has been stated above that the decision proceeded on the footing that the amending Act conferred a new right of appeal, and not that it took away a vested right of appeal; and the reason of the decision was based on the principle that there is no vested right in the procedure by which the sufficiency of court fees is determined by a court. That is a principle of a different character from the one we are concerned with in the present case, viz., the retrospective effect of a subsequent enactment which either takes away a right of appeal or impairs it by imposing a more stringent or onerous condition thereon. We do not, therefore, think that the Allahabad decision helps the appellant.11. The question was considered in reverse in Delhi Cloth and General Mills Company Limited v. Income-tax Commissioner. Delhi, 54 Ind App 421 : (AIR 1927 PC 242 ), and the principle of colonial Sugar Refining Co. v. Irving, 1905 AC 369, was applied. Another decision in point is that of Nagandra Nath Bose v. Mon Mohan Singh, 34 Cal WN 1009: (AIR 1931 Cal 100 ). In that case the plaintiff instituted a suit for rent valued at Rs. 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on November 20, 1926, for Rs. 1,600. On December 19, 1928, an application was made under O. 21, R. 90 of the Code of Civil Procedure by the petitioner who was one of the judgment-debtors for setting aside the sale. That application having been dismissed for default of his appearance, the petitioner preferred an appeal to the District Judge, Hoogly, who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to S. 174 (c)of the Bengal Tenancy Act as amended by an amending Act of 1928. The contention of the petitioner was that the amending provision, which came into force on February 21, 1929, could not affect his right of appeal from the decision on an application made on December 19, 1928, for setting aside the sale. Mitter, J. said:"We think the contention of the petitioner is well-founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of Order 43, Rule 1 of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by S. 174 (5), proviso. The Court was bound to admit the appeal whether the appellant deposited the amount recoverable in execution of the decree or not. By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial - for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal."This decision was approved by this Court both in Hossein Kasam Dada, 1953 SCR 987 : (AIR 1953 Sc 221 ) and Garikapatti Veeraya, 1957 SCR 488 : ((S) AIR 1957 SC 540 ) (supra).12. It is thus clear that in a long lime of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. We are, therefore, of the view that the High Court was right in the view it took, and the orders of refund of excess court fees which it passed were correct in law.
### Response:
0
### Explanation:
7. It is necessary to state here what the High Court has clearly pointed out with regard to the amendments made by the Court-fees (Bombay Amendment) Act. 1954 (Bombay Act No. XII of 1954). On the relevant date the whole system of charging court fees in the Bombay High Court on the Original Side was altered and instead of a fixed fee payable on the plaint etc. ad valorem fees became leviable as in the districts. The change was effected inter alia by deleting S. 4 and amending S. 6 of the Court fees Act, 1870 and Art 1 of Schedule I to the Act. There was no provision, express or by necessary intendment, for giving retrospective effect to the amendments made in the sense of affecting a rights of appeal arising out of a suit instituted prior to the relevant date. As this position has not been contested, it is not necessary to read here the provisions of the amending Act.It is thus clear that in a long lime of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.13. We are, therefore, of the view that the High Court was right in the view it took, and the orders of refund of excess court fees which it passed were correct in law.
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NATIONAL ALUMINIUM COMPANY LTD Vs. SUBHASH INFRA ENGINEERS PVT. LTD AND ANR | Thousand Four Hundred and Forty Only). The respondent/SIE was directed to deposit the said amount otherwise the appellant will be forced to invoke Arbitration Clause as per Clause 22 of NIT and Clause 87 of the General Conditions of Contract. Then, the first respondent/SIE has disputed the claim made by the appellant, on the ground that there is no binding contract, that came into existence between the parties, as such, the demand is illegal and unjustified. A letter dated 28.02.2015 was communicated to that effect, to the appellant. 5. Further, when the appellant-company asked the respondent/SIE to select an arbitrator from a panel of three names sent by it, the respondent/SIE, vide letter dated 23.07.2015, informed the appellant that, as much as, there is no binding contract that came into existence between the parties, the disputes cannot be resolved by the arbitrator. 6. The appellant herein, having regard to terms and conditions of contract, invoked the arbitration clause, by proceeding dated 02.09.2015 and appointed the second respondent Shri C.R. Pradhan, who was the Former Chairman(CMD) of the Company, as an arbitrator. The learned arbitrator initiated the proceeding by issuing notice dated 07.09.2015, asking the appellant, as well as the first respondent to attend the preliminary meeting on 09.10.2015 at Bhubaneswar. 7. On receipt of such notice issued by the arbitrator, the first respondent herein approached the Civil Court and filed Civil Suit No.2610 of 2015 on the file of Senior Civil Judge, Gurgaon, seeking relief of declaration that the appointment of second respondent, as a sole arbitrator, is null and void. Further, relief of permanent injunction was also sought restraining the arbitrator, from proceeding with arbitration proceedings. Pending suit, interim injunction sought for is rejected by the Learned Trial Judge i.e Senior Civil Judge, Gurgaon. 8. Against the order of the Trial Court, refusing to grant injunction orders, the first respondent approached the District Court. The Appellate Court i.e the Additional District Judge, Gurgaon, vide order dated 25.01.2016, allowed the appeal and granted the injunction, restraining the second respondent-arbitrator from proceeding further, pursuant to notice dated 07.09.2015. When the appellant herein has questioned such order by way of Civil Revision No. 2471 of 2016, before the High Court of Punjab and Haryana at Chandigarh, the same is dismissed vide order dated 22.10.2016. Hence this appeal by way of Special Leave. 9. We have heard the Sri Ashok K. Gupta, learned senior counsel appearing for the appellant and Sri Manoj Swarup, learned counsel for the first respondent, though the second respondent is served, there is no appearance on his behalf. We have perused the impugned order and other material placed on record. 10. It is the case of the appellant, that as much as the appellant has accepted offer/tender submitted by respondent, it is a concluded contract and is an arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 (for short, the Act). On the other hand, it is the case of the respondent, as acceptance was not unconditional, it does not amount to a binding contract between the appellant and the first respondent, as such, the arbitrator has no jurisdiction to decide the lis between the parties. Mainly, it was a case of the appellant that as much as the acceptance of the bid will conclude the contract and having regard to terms and conditions of NIT and General Conditions of Contract, it is a binding contract between the parties, as such, dispute is to be resolved only by way of arbitration. 11. The learned counsel for the appellant has placed reliance on judgment in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 2012(5) SCC, 214. 12. It is a case of the appellant-Company that even if the first respondent disputes the jurisdiction of the arbitrator, it is open for the first respondent to move an application before the arbitrator under Section 16 of the Act, but at the same time, the suit filed by the first respondent, for declaration and injunction is not maintainable. 13. In the Judgment of this Court, in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 1 , this Court has examined the similar issue and held that any objection with respect to existence or validity of the arbitration agreement, can be raised only by way of an application under Section 16 of the Act and Civil Court cannot have jurisdiction to go into such question. 14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order. 15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders. 16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties. | 1[ds]14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties. | 1 | 1,529 | 282 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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Thousand Four Hundred and Forty Only). The respondent/SIE was directed to deposit the said amount otherwise the appellant will be forced to invoke Arbitration Clause as per Clause 22 of NIT and Clause 87 of the General Conditions of Contract. Then, the first respondent/SIE has disputed the claim made by the appellant, on the ground that there is no binding contract, that came into existence between the parties, as such, the demand is illegal and unjustified. A letter dated 28.02.2015 was communicated to that effect, to the appellant. 5. Further, when the appellant-company asked the respondent/SIE to select an arbitrator from a panel of three names sent by it, the respondent/SIE, vide letter dated 23.07.2015, informed the appellant that, as much as, there is no binding contract that came into existence between the parties, the disputes cannot be resolved by the arbitrator. 6. The appellant herein, having regard to terms and conditions of contract, invoked the arbitration clause, by proceeding dated 02.09.2015 and appointed the second respondent Shri C.R. Pradhan, who was the Former Chairman(CMD) of the Company, as an arbitrator. The learned arbitrator initiated the proceeding by issuing notice dated 07.09.2015, asking the appellant, as well as the first respondent to attend the preliminary meeting on 09.10.2015 at Bhubaneswar. 7. On receipt of such notice issued by the arbitrator, the first respondent herein approached the Civil Court and filed Civil Suit No.2610 of 2015 on the file of Senior Civil Judge, Gurgaon, seeking relief of declaration that the appointment of second respondent, as a sole arbitrator, is null and void. Further, relief of permanent injunction was also sought restraining the arbitrator, from proceeding with arbitration proceedings. Pending suit, interim injunction sought for is rejected by the Learned Trial Judge i.e Senior Civil Judge, Gurgaon. 8. Against the order of the Trial Court, refusing to grant injunction orders, the first respondent approached the District Court. The Appellate Court i.e the Additional District Judge, Gurgaon, vide order dated 25.01.2016, allowed the appeal and granted the injunction, restraining the second respondent-arbitrator from proceeding further, pursuant to notice dated 07.09.2015. When the appellant herein has questioned such order by way of Civil Revision No. 2471 of 2016, before the High Court of Punjab and Haryana at Chandigarh, the same is dismissed vide order dated 22.10.2016. Hence this appeal by way of Special Leave. 9. We have heard the Sri Ashok K. Gupta, learned senior counsel appearing for the appellant and Sri Manoj Swarup, learned counsel for the first respondent, though the second respondent is served, there is no appearance on his behalf. We have perused the impugned order and other material placed on record. 10. It is the case of the appellant, that as much as the appellant has accepted offer/tender submitted by respondent, it is a concluded contract and is an arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 (for short, the Act). On the other hand, it is the case of the respondent, as acceptance was not unconditional, it does not amount to a binding contract between the appellant and the first respondent, as such, the arbitrator has no jurisdiction to decide the lis between the parties. Mainly, it was a case of the appellant that as much as the acceptance of the bid will conclude the contract and having regard to terms and conditions of NIT and General Conditions of Contract, it is a binding contract between the parties, as such, dispute is to be resolved only by way of arbitration. 11. The learned counsel for the appellant has placed reliance on judgment in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 2012(5) SCC, 214. 12. It is a case of the appellant-Company that even if the first respondent disputes the jurisdiction of the arbitrator, it is open for the first respondent to move an application before the arbitrator under Section 16 of the Act, but at the same time, the suit filed by the first respondent, for declaration and injunction is not maintainable. 13. In the Judgment of this Court, in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 1 , this Court has examined the similar issue and held that any objection with respect to existence or validity of the arbitration agreement, can be raised only by way of an application under Section 16 of the Act and Civil Court cannot have jurisdiction to go into such question. 14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order. 15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders. 16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties.
### Response:
1
### Explanation:
14. Having regard to aforesaid judgment of this Court and various communications between the parties, we are in agreement with the submission made by the learned senior counsel for the appellant that, if the first respondent wants to raise an objection with regard to existence or validity of the arbitration agreement, it is open for the first respondent to move an application before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order15. As we are of the view that the order passed by the Additional District Judge and the High Court are not in conformity with the law on the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties.
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Malati Sardar Vs. National Insurance Company Ltd | mean the place of business. He sought to distinguish the view taken by this Court in Mantoo Sarkar (supra). 9. The question for consideration thus is whether the Tribunal at Kolkata had the jurisdiction to decide the claim application under Section 166 of the Act when the accident took place outside Kolkata jurisdiction and the claimant also resided outside Kolkata jurisdiction, but the respondent being a juristic person carried on business at Kolkata. Further question is whether in absence of failure of justice, the High Court could set aside the award of the Tribunal on the ground of lack of territorial jurisdiction. 10. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be worthwhile to quote the statutory provision of Section 166(2) of the Act : 166. Application for compensation.— * * * (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. 11. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the later. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan (AIR 1954 SC 340 )to the following effect : With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act. 12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata. 13. Reliance placed on decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat is misplaced. In G.S. Grewal, the subject matter of dispute was not covered by the definition of service matters under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. Thus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a consumer under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction. 14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC. | 1[ds]12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at KolkataThus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a consumer under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC. | 1 | 1,978 | 312 | ### 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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mean the place of business. He sought to distinguish the view taken by this Court in Mantoo Sarkar (supra). 9. The question for consideration thus is whether the Tribunal at Kolkata had the jurisdiction to decide the claim application under Section 166 of the Act when the accident took place outside Kolkata jurisdiction and the claimant also resided outside Kolkata jurisdiction, but the respondent being a juristic person carried on business at Kolkata. Further question is whether in absence of failure of justice, the High Court could set aside the award of the Tribunal on the ground of lack of territorial jurisdiction. 10. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be worthwhile to quote the statutory provision of Section 166(2) of the Act : 166. Application for compensation.— * * * (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. 11. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the later. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan (AIR 1954 SC 340 )to the following effect : With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act. 12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata. 13. Reliance placed on decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat is misplaced. In G.S. Grewal, the subject matter of dispute was not covered by the definition of service matters under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. Thus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a consumer under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction. 14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC.
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1
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12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at KolkataThus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a consumer under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC.
|
Madhuri Ghosh Vs. Debobroto Dutta | of paragraph 2 of the said Will that the testator has chosen his language very carefully. He makes it clear that after his death house No.77 shall "vest" on my wife Smt. Madhuri Ghosh and my elder daughter Sunanda Ghosh jointly. With this declaration he goes on to further state that after the death of his wife, the said daughter shall become the "exclusive" owner of the said house No.77 and that if his daughter was to predecease his wife, then his wife shall become the "exclusive" owner. A reading of this paragraph therefore, leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property namely, house No.77. There are no words of limitation used in this paragraph and we, therefore, find it very difficult to agree with the High Court in its conclusion that what is bequeathed by paragraph 2 is only a limited interest in favour of the widow and the elder daughter.12. However, it remains to consider the argument on behalf of the respondent that the Will should be read as a whole and that the testators intention should be given effect so that the grand children are "not on the road" as is argued by counsel for the respondents. In law the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same Will to other persons will be of no effect. This is clearly laid down in Ramkishorelal and Another v. Kamal Narayan 1963 Supp (2) SCR 417 as follows:"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens ? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."13. This judgment was referred to with approval and followed in Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors., 2002(2) R.C.R.(Civil) 77 : (2002) 2 SCC 468 as follows:"The next question that arises for consideration is, the validity of the second part of the will whereby and whereunder the testator gave the very same property to nine sons of his daughters.In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.From the decisions referred to above, the legal principle that emerges, inter alia, are;1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will." | 1[ds]11. It will be noticed on a reading of paragraph 2 of the said Will that the testator has chosen his language very carefully. He makes it clear that after his death house No.77 shall "vest" on my wife Smt. Madhuri Ghosh and my elder daughter Sunanda Ghosh jointly. With this declaration he goes on to further state that after the death of his wife, the said daughter shall become the "exclusive" owner of the said house No.77 and that if his daughter was to predecease his wife, then his wife shall become the "exclusive" owner. A reading of this paragraph therefore, leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property namely, house No.77. There are no words of limitation used in this paragraph and we, therefore, find it very difficult to agree with the High Court in its conclusion that what is bequeathed by paragraph 2 is only a limited interest in favour of the widow and the elder daughter.12. However, it remains to consider the argument on behalf of the respondent that the Will should be read as a whole and that the testators intention should be given effect so that the grand children are "not on the road" as is argued by counsel for the respondents. In law the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same Will to other persons will be of no effect. This is clearly laid down in Ramkishorelal and Another v. Kamal Narayan 1963 Supp (2) SCR 417 as follows:"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens ? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."13. This judgment was referred to with approval and followed in Mauleshwar ManiOrs. v. Jagdish PrasadOrs., 2002(2) R.C.R.(Civil) 77 : (2002) 2 SCC 468 as follows:"The next question that arises for consideration is, the validity of the second part of the will whereby and whereunder the testator gave the very same property to nine sons of his daughters.In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.From the decisions referred to above, the legal principle that emerges, inter alia, are;1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will." | 1 | 2,699 | 1,109 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of paragraph 2 of the said Will that the testator has chosen his language very carefully. He makes it clear that after his death house No.77 shall "vest" on my wife Smt. Madhuri Ghosh and my elder daughter Sunanda Ghosh jointly. With this declaration he goes on to further state that after the death of his wife, the said daughter shall become the "exclusive" owner of the said house No.77 and that if his daughter was to predecease his wife, then his wife shall become the "exclusive" owner. A reading of this paragraph therefore, leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property namely, house No.77. There are no words of limitation used in this paragraph and we, therefore, find it very difficult to agree with the High Court in its conclusion that what is bequeathed by paragraph 2 is only a limited interest in favour of the widow and the elder daughter.12. However, it remains to consider the argument on behalf of the respondent that the Will should be read as a whole and that the testators intention should be given effect so that the grand children are "not on the road" as is argued by counsel for the respondents. In law the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same Will to other persons will be of no effect. This is clearly laid down in Ramkishorelal and Another v. Kamal Narayan 1963 Supp (2) SCR 417 as follows:"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens ? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."13. This judgment was referred to with approval and followed in Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors., 2002(2) R.C.R.(Civil) 77 : (2002) 2 SCC 468 as follows:"The next question that arises for consideration is, the validity of the second part of the will whereby and whereunder the testator gave the very same property to nine sons of his daughters.In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.From the decisions referred to above, the legal principle that emerges, inter alia, are;1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will."
### Response:
1
### Explanation:
of paragraph 2 of the said Will that the testator has chosen his language very carefully. He makes it clear that after his death house No.77 shall "vest" on my wife Smt. Madhuri Ghosh and my elder daughter Sunanda Ghosh jointly. With this declaration he goes on to further state that after the death of his wife, the said daughter shall become the "exclusive" owner of the said house No.77 and that if his daughter was to predecease his wife, then his wife shall become the "exclusive" owner. A reading of this paragraph therefore, leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property namely, house No.77. There are no words of limitation used in this paragraph and we, therefore, find it very difficult to agree with the High Court in its conclusion that what is bequeathed by paragraph 2 is only a limited interest in favour of the widow and the elder daughter.12. However, it remains to consider the argument on behalf of the respondent that the Will should be read as a whole and that the testators intention should be given effect so that the grand children are "not on the road" as is argued by counsel for the respondents. In law the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same Will to other persons will be of no effect. This is clearly laid down in Ramkishorelal and Another v. Kamal Narayan 1963 Supp (2) SCR 417 as follows:"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens ? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."13. This judgment was referred to with approval and followed in Mauleshwar ManiOrs. v. Jagdish PrasadOrs., 2002(2) R.C.R.(Civil) 77 : (2002) 2 SCC 468 as follows:"The next question that arises for consideration is, the validity of the second part of the will whereby and whereunder the testator gave the very same property to nine sons of his daughters.In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.From the decisions referred to above, the legal principle that emerges, inter alia, are;1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will."
|
Commissioner of Central Excise, Mumbai Vs. M/s. National Organic Chemical Industries Limited | counsel appearing for the respondent submitted that he is not questioning the well-settled proposition of law, but the respondent assessee in this case is entitled to the benefits of the notification on a plain reading of the notification. 24. Mr. Shroff further placed reliance on the following decisions: In Union of India & Others v. Tata Iron & Steel Company Limited, 1977 (1) ELT 61 , a four-Judge bench of this Court held as under: "23. .. The High Court rightly said that the Notification does not say that exemption is granted only when duty paid pig iron is used and that the exemption would not be available if duty-paid pig iron is mixed with other non-duty paid materials. If the intention of the Government were to exclude the exemption to duty-paid pig iron when mixed with other materials then the notification would have used the expression "only" or "exclusively" or "entirely" in regard to duty-paid pig iron. The object of the notification was to grant relief by exempting the duty-paid pig iron." 25. In Indian Farmers Fertiliser Cooperative Limited v. Commissioner of Central Excise, Ahmedabad, 1996 (86) ELT 177 , this Court observed as under: "7. ..The Exemption Notification does not require that the ammonia should be used directly in the manufacture of fertilisers. It requires only that the ammonia should be used in the manufacture of fertilisers. The Exemption Notification must be so construed as to give due weight to the liberal language it uses. The ammonia used in the water treatment, steam generation and inert gas generation plants, which are a necessary part of the process of manufacturing urea, must, therefore, be held to be used in the manufacture of ammonia and the raw naphtha used for the manufacture thereof is entitled to the duty exemption." 26. Mr. Shroff also placed reliance on Indian Petrochemicals Corporation Ltd. V. Collector of Central Excise, Vadodara 1997 (92) ELT 294. In this case, this Court observed as under: "19. Under this notification pyrolysis gasolene which falls under chapter 27 is produced in the appellants factory and it is utilised for the manufacture of goods. As such it would be exempt from the whole of the duty of excise leviable thereon assuming that any duty of excise is leviable on it. Therefore, we fail to see how any duty of excise can be levied on any part of pyrolysis gasolene manufactured in the factory of the appellant.20. Pyrolysis Gasolene being an intermediate product which is produced in the factory of the appellant, and it being utilised for the manufacture of other goods, it would be totally exempt from payment of excise duty under the second exemption notification." 27. In National Organic Chemical Industries Ltd. V. Collector of Central Excise, Bombay 1997 (89) ELT 643 , this Court observed as under: "11. Crude petroleum is refined to produce raw naphtha. Raw naphtha is further refined, or cracked, to produce the said products. This is not controverted. It seems to us to make no difference that the appellants buy the raw naphtha from others. The question is to be judged regardless of this, and the question is whether the intervention of the raw naphtha would justify the finding that the said products are not "derived from refining of crude petroleum". The refining of crude petroleum produces various products at different stages. Raw naphtha is one such state. The further refining, or cracking, of raw naphtha results in the said products. The source of the said products is crude petroleum. The said products must, therefore, be held to have been derived from crude petroleum." 28. In Doypack Systems (Pvt.) Ltd. v. Union of India 1988 (36) ELT 201 , this Court had an occasion to examine the expressions "pertaining to", "in relation to" and "arising out of" and observed as under: "46. .... The expressions "pertaining to", "in relation to" and "arising out of", used in the deeming provision, are used in the expansive sense, as per decisions of courts, meanings found in standard dictionaries, and the principles of broad and liberal interpretation in consonance with Article 39(b) and (c) of the Constitution." 29. Mr. Shroff further placed reliance on Commissioner of Central Excise, Coimbatore v. Jawahar Mills Ltd. 2001 (132) ELT 3 wherein this Court whilst interpreting the words "used in the factory of manufacture" used in clause (c) of the Explanation to Rule 57 Q (1) held that the goods need not be used for producing the final product or used in the process of any goods for the manufacture of final product or used for bringing about any change in any substance for the manufacture of final product and the only requirement is that the same should be used in the factory of the manufacturer. Thus, it can be seen that the language used in the explanation is very liberal. 30. We have heard the learned counsel for the parties at length and perused the judgments cited at the Bar. The Tribunals finding that the ethylene and propylene used as refrigerant has been used in or in relation to the manufacture of the same goods. The inevitable and automatic emergence of ethane and methane, therefore, by itself is no ground for denying the exemption contained in the notification. The Tribunal came to the categoric finding that the respondent could not have manufactured ethylene and propylene without manufacturing its by-products ethane and methane. The Tribunal held that in any technology the emergence of ethane and methane was inevitable and hence while it is no doubt correct to say that the ethylene and propylene have been used in or in relation to the manufacture of ethane and methane, the identical quantity of the same goods has simultaneously been used in the manufacture of ethylene and propylene. The emergence of ethane and methane, therefore, cannot be a ground to deny the benefit of exemption to the respondent. 31. In our considered view, no interference is called for in the well-reasoned judgment/order of the Tribunal. | 0[ds]We have heard the learned counsel for the parties at length and perused the judgments cited at the Bar. The Tribunals finding that the ethylene and propylene used as refrigerant has been used in or in relation to the manufacture of the same goods. The inevitable and automatic emergence of ethane and methane, therefore, by itself is no ground for denying the exemption contained in the notification. The Tribunal came to the categoric finding that the respondent could not have manufactured ethylene and propylene without manufacturing its by-products ethane and methane. The Tribunal held that in any technology the emergence of ethane and methane was inevitable and hence while it is no doubt correct to say that the ethylene and propylene have been used in or in relation to the manufacture of ethane and methane, the identical quantity of the same goods has simultaneously been used in the manufacture of ethylene and propylene. The emergence of ethane and methane, therefore, cannot be a ground to deny the benefit of exemption to theour considered view, no interference is called for in the well-reasoned judgment/order of the Tribunal. | 0 | 2,757 | 203 | ### 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:
counsel appearing for the respondent submitted that he is not questioning the well-settled proposition of law, but the respondent assessee in this case is entitled to the benefits of the notification on a plain reading of the notification. 24. Mr. Shroff further placed reliance on the following decisions: In Union of India & Others v. Tata Iron & Steel Company Limited, 1977 (1) ELT 61 , a four-Judge bench of this Court held as under: "23. .. The High Court rightly said that the Notification does not say that exemption is granted only when duty paid pig iron is used and that the exemption would not be available if duty-paid pig iron is mixed with other non-duty paid materials. If the intention of the Government were to exclude the exemption to duty-paid pig iron when mixed with other materials then the notification would have used the expression "only" or "exclusively" or "entirely" in regard to duty-paid pig iron. The object of the notification was to grant relief by exempting the duty-paid pig iron." 25. In Indian Farmers Fertiliser Cooperative Limited v. Commissioner of Central Excise, Ahmedabad, 1996 (86) ELT 177 , this Court observed as under: "7. ..The Exemption Notification does not require that the ammonia should be used directly in the manufacture of fertilisers. It requires only that the ammonia should be used in the manufacture of fertilisers. The Exemption Notification must be so construed as to give due weight to the liberal language it uses. The ammonia used in the water treatment, steam generation and inert gas generation plants, which are a necessary part of the process of manufacturing urea, must, therefore, be held to be used in the manufacture of ammonia and the raw naphtha used for the manufacture thereof is entitled to the duty exemption." 26. Mr. Shroff also placed reliance on Indian Petrochemicals Corporation Ltd. V. Collector of Central Excise, Vadodara 1997 (92) ELT 294. In this case, this Court observed as under: "19. Under this notification pyrolysis gasolene which falls under chapter 27 is produced in the appellants factory and it is utilised for the manufacture of goods. As such it would be exempt from the whole of the duty of excise leviable thereon assuming that any duty of excise is leviable on it. Therefore, we fail to see how any duty of excise can be levied on any part of pyrolysis gasolene manufactured in the factory of the appellant.20. Pyrolysis Gasolene being an intermediate product which is produced in the factory of the appellant, and it being utilised for the manufacture of other goods, it would be totally exempt from payment of excise duty under the second exemption notification." 27. In National Organic Chemical Industries Ltd. V. Collector of Central Excise, Bombay 1997 (89) ELT 643 , this Court observed as under: "11. Crude petroleum is refined to produce raw naphtha. Raw naphtha is further refined, or cracked, to produce the said products. This is not controverted. It seems to us to make no difference that the appellants buy the raw naphtha from others. The question is to be judged regardless of this, and the question is whether the intervention of the raw naphtha would justify the finding that the said products are not "derived from refining of crude petroleum". The refining of crude petroleum produces various products at different stages. Raw naphtha is one such state. The further refining, or cracking, of raw naphtha results in the said products. The source of the said products is crude petroleum. The said products must, therefore, be held to have been derived from crude petroleum." 28. In Doypack Systems (Pvt.) Ltd. v. Union of India 1988 (36) ELT 201 , this Court had an occasion to examine the expressions "pertaining to", "in relation to" and "arising out of" and observed as under: "46. .... The expressions "pertaining to", "in relation to" and "arising out of", used in the deeming provision, are used in the expansive sense, as per decisions of courts, meanings found in standard dictionaries, and the principles of broad and liberal interpretation in consonance with Article 39(b) and (c) of the Constitution." 29. Mr. Shroff further placed reliance on Commissioner of Central Excise, Coimbatore v. Jawahar Mills Ltd. 2001 (132) ELT 3 wherein this Court whilst interpreting the words "used in the factory of manufacture" used in clause (c) of the Explanation to Rule 57 Q (1) held that the goods need not be used for producing the final product or used in the process of any goods for the manufacture of final product or used for bringing about any change in any substance for the manufacture of final product and the only requirement is that the same should be used in the factory of the manufacturer. Thus, it can be seen that the language used in the explanation is very liberal. 30. We have heard the learned counsel for the parties at length and perused the judgments cited at the Bar. The Tribunals finding that the ethylene and propylene used as refrigerant has been used in or in relation to the manufacture of the same goods. The inevitable and automatic emergence of ethane and methane, therefore, by itself is no ground for denying the exemption contained in the notification. The Tribunal came to the categoric finding that the respondent could not have manufactured ethylene and propylene without manufacturing its by-products ethane and methane. The Tribunal held that in any technology the emergence of ethane and methane was inevitable and hence while it is no doubt correct to say that the ethylene and propylene have been used in or in relation to the manufacture of ethane and methane, the identical quantity of the same goods has simultaneously been used in the manufacture of ethylene and propylene. The emergence of ethane and methane, therefore, cannot be a ground to deny the benefit of exemption to the respondent. 31. In our considered view, no interference is called for in the well-reasoned judgment/order of the Tribunal.
### Response:
0
### Explanation:
We have heard the learned counsel for the parties at length and perused the judgments cited at the Bar. The Tribunals finding that the ethylene and propylene used as refrigerant has been used in or in relation to the manufacture of the same goods. The inevitable and automatic emergence of ethane and methane, therefore, by itself is no ground for denying the exemption contained in the notification. The Tribunal came to the categoric finding that the respondent could not have manufactured ethylene and propylene without manufacturing its by-products ethane and methane. The Tribunal held that in any technology the emergence of ethane and methane was inevitable and hence while it is no doubt correct to say that the ethylene and propylene have been used in or in relation to the manufacture of ethane and methane, the identical quantity of the same goods has simultaneously been used in the manufacture of ethylene and propylene. The emergence of ethane and methane, therefore, cannot be a ground to deny the benefit of exemption to theour considered view, no interference is called for in the well-reasoned judgment/order of the Tribunal.
|
The Commissioner Of Income-Tax, Madras Vs. A.Gajapathy Naidu | any contractual obligation but purely by a voluntary act of the purchaser. Though the additional amounts accrued to the assessee in a later year, it was regarded as analogous to a trade debt due in respect of the trading operation of the earlier year. On that principle the accounts were reopened in order to bring the increase into profits of the assessee in the year of transaction. This decision was accepted and extended in Severne v. Dadswell, (1954) 35 Tax Cas 649. As this decision is the basis for the High Courts view, we shall give its facts in some detail. The respondent therein was granted a licence to mill flour in October, 1941, and carried on the trade of flour milling until September, 1945. As he had not been a miller at the outbreak of war, he was not entitled to the benefit of a remuneration agreement whereby millers were compensated by the Ministry of Food for losses incurred under wartime arrangements for the purchase of wheat and sale of flour. Having, however, been informed by the Ministry in 1943 and twice later that the remuneration of millers who had begun milling during the period of control was under consideration, he made a claim in 1949 on the same basis as that laid down in the remuneration agreement and received payments in settlement. The respondent contended that the sums received in 1949 were not trading receipts but ex gratia payments, and alternatively, that they were received after the cessation of his trade and that if there was a debt arising to the trade at the date of cessation its value at that date was nil. The Court held that the said payments were ex gratia; and it further held that, if on the discontinuance of a trade payment for work already done in a year had not been finally settled, accounts for that year could be reopened so as to bring in a gratuitous payment for such work made in a subsequent year. This judgment certainly supports the respondent. Though it could be distinguished on the ground that in that case it was found that the payment for the work already done had not been finally settled whereas in the present case there is nothing on the record to disclose that it was not finally settled. We would prefer to base our conclusion on the ground that we cannot extend the meaning of the word "accrue" or "arise" in S. 4 (1) (b) (i) of the Act so as to take in amounts received by the assessee in a later year, though the receipt was not on the basis of the right accrued in the earlier year. Such amounts are in law received by the assessee only in the year when they are paid. We cannot apply the English decisions in the matter of construction of the provisions of the Indian Act, particularly when they have received an authoritative interpretation from this Court. In this view, it is not necessary to consider further English decisions cited by learned counsel for the respondent in support of his contention. Before a Division Bench of the Allahabad High Court in Commissioner of Income-tax, U. P. and V. P. v. Kalicharan Jagannath 1961-41 ITR 40 (All) when a similar question arose, learned counsel appearing for the Revenue relied upon the said English decisions, but the High Court, rightly, refused to act on them on the ground that they were not relevant in interpreting S. 4 of the Indian Income-tax Act. It further made an attempt to distinguish those decisions on grounds based upon the alleged difference in the scope of the provisions of the respective countries. It was said that under the relevant English Act the excess profits duty was payable on computation of profits arising from a trade or business in different chargeable accounting periods and, therefore, the emphasis there was more upon the carrying on of the trade within the chargeable period than on the income accruing during that period. But we do not propose to express our view on this aspect of the question, as the relevant sections of the English Acts have not been placed before us. The learned Judges, after having rightly refused to rely upon the English decisions, construed the provisions of the Indian statute. There, during the accounting period April 1, 1945 to March 31, 1946, the assessee entered into a contract with and supplied fruits and bullock carts to, the military authorities at two different places at rates fixed by the agreement. The assessee incurred a loss and he submitted a petition for review under the terms of the agreement. On November 6, 1947, the military authorised sanctioned the payment of an additional sum which was paid to the assessee on February 17 ad 24, 1948. The Income-tax Department sought to include this additional sum in the assessment for the accounting year 1945-46. The High Court held that until the order of review the only right that the assessee had was to claim the money payable at the rates laid down in the agreement itself and that the additional amount became payable to the assessee not by virtue of any right conferred by the agreement, but because of the order passed in review directing the payment of the amount and thus creating a right to this amount in favour of the assessee. As the right to receive the payment of the additional sum arose after the closing of the accounting year 1945-46, the High Court proceeded to hold that the income did not accrue or arise to the assessee in the accounting year. It may be pointed out that in that case the original agreement gave a right to apply for review and notwithstanding that fact the court held that the additional payment could not be held to have accrued during the accounting year. For the reasons already stated by us, we are entirely in agreement with the view expressed by the Allahabad High Court.10 | 1[ds]9. We shall now proceed to notice some of the decisions cited at the Bar.J. P. Hall and Co. v. Commissioner of Inland revenue, 1921-12 Tax Cas382 is a decision of the Court of Appeal under S. 38 of the Finance (No. 2) Act, 1915 (5 and 6 Geo V, c. 89) dealing with excess profits duty. There it was held that for the purpose of Excess Profits Duty, the profits from the contracts for the purchase and sale of the control gear arose to the appellant-company in the accounting years in which the gear was actually delivered and not in the pre-war period ending the 30th June, 1914, in which the contracts were made. The price of the control gear in that case was increased later without there being any contractual obligation but purely by a voluntary act of the purchaser. Though the additional amounts accrued to the assessee in a later year, it was regarded as analogous to a trade debt due in respect of the trading operation of the earlier year. On that principle the accounts were reopened in order to bring the increase into profits of the assessee in the year of transaction. This decision was accepted and extended in Severnev. Dadswell, (1954) 35 Tax CasAs this decision is the basis for the High Courts view, we shall give its facts in some detail. The respondent therein was granted a licence to mill flour in October, 1941, and carried on the trade of flour milling until September, 1945. As he had not been a miller at the outbreak of war, he was not entitled to the benefit of a remuneration agreement whereby millers were compensated by the Ministry of Food for losses incurred under wartime arrangements for the purchase of wheat and sale of flour. Having, however, been informed by the Ministry in 1943 and twice later that the remuneration of millers who had begun milling during the period of control was under consideration, he made a claim in 1949 on the same basis as that laid down in the remuneration agreement and received payments in settlement. The respondent contended that the sums received in 1949 were not trading receipts but ex gratia payments, and alternatively, that they were received after the cessation of his trade and that if there was a debt arising to the trade at the date of cessation its value at that date was nil. The Court held that the said payments were ex gratia; and it further held that, if on the discontinuance of a trade payment for work already done in a year had not been finally settled, accounts for that year could be reopened so as to bring in a gratuitous payment for such work made in a subsequent year. This judgment certainly supports the respondent. Though it could be distinguished on the ground that in that case it was found that the payment for the work already done had not been finally settled whereas in the present case there is nothing on the record to disclose that it was not finally settled. We would prefer to base our conclusion on the ground that we cannot extend the meaning of the word "accrue" or "arise" in S. 4 (1) (b) (i) of the Act so as to take in amounts received by the assessee in a later year, though the receipt was not on the basis of the right accrued in the earlier year. Such amounts are in law received by the assessee only in the year when they are paid. We cannot apply the English decisions in the matter of construction of the provisions of the Indian Act, particularly when they have received an authoritative interpretation from this Court. In this view, it is not necessary to consider further English decisions cited by learned counsel for the respondent in support of his contention. Before a Division Bench of the Allahabad High Court in Commissioner of Income-tax, U. P. and V. P. v. Kalicharan Jagannath 1961-41 ITR 40 (All) when a similar question arose, learned counsel appearing for the Revenue relied upon the said English decisions, but the High Court, rightly, refused to act on them on the ground that they were not relevant in interpreting S. 4 of the Indian Income-tax Act. It further made an attempt to distinguish those decisions on grounds based upon the alleged difference in the scope of the provisions of the respective countries. It was said that under the relevant English Act the excess profits duty was payable on computation of profits arising from a trade or business in different chargeable accounting periods and, therefore, the emphasis there was more upon the carrying on of the trade within the chargeable period than on the income accruing during that period. But we do not propose to express our view on this aspect of the question, as the relevant sections of the English Acts have not been placed before us. The learned Judges, after having rightly refused to rely upon the English decisions, construed the provisions of the Indian statute. There, during the accounting period April 1, 1945 to March 31, 1946, the assessee entered into a contract with and supplied fruits and bullock carts to, the military authorities at two different places at rates fixed by the agreement. The assessee incurred a loss and he submitted a petition for review under the terms of the agreement. On November 6, 1947, the military authorised sanctioned the payment of an additional sum which was paid to the assessee on February 17 ad 24, 1948. The Income-tax Department sought to include this additional sum in the assessment for the accounting year 1945-46. The High Court held that until the order of review the only right that the assessee had was to claim the money payable at the rates laid down in the agreement itself and that the additional amount became payable to the assessee not by virtue of any right conferred by the agreement, but because of the order passed in review directing the payment of the amount and thus creating a right to this amount in favour of the assessee. As the right to receive the payment of the additional sum arose after the closing of the accounting year 1945-46, the High Court proceeded to hold that the income did not accrue or arise to the assessee in the accounting year. It may be pointed out that in that case the original agreement gave a right to apply for review and notwithstanding that fact the court held that the additional payment could not be held to have accrued during the accounting year. For the reasons already stated by us, we are entirely in agreement with the view expressed by the Allahabad High Court.With great respect to the learned Judges of the High Court we must point out that the decision of the High Court is deflected by its reliance on English decisions delivered under circumstances peculiar to that country and on the construction of provisions which are not in pari materia with the provisions obtaining incaution administered by this Court shall always be borne in mind in construing the provisions of the Indian statue.The provisions of the IndianAct shall be construed on their own terms without drawing any analogy from English statutes whose terms may superficially appear to be similar but on a deeper scrutiny may reveal differences not only in the wording but also in the meaning a particular expression has acquired in the context of the development of law in that country.7. The problem raised before us can only be answered on the true meaning of the express words used in S. 4(1) (b) (i) of theare not concerned in this case with the expression "deemed to accrue or arise to him," as that expression refers to cases set out in the statute itself introducing a fiction in respect of certain incomes. In regard to the question, when the whether an income accrues or arises within the meaning of the first part of the said clause, we have a decision of this Court which has clearly enuncited the principle underlying the said expression: that is the decision in E. D. Sassoon and Company Ltd. v. Commissioner ofSCR 313 at p. 342 :ITR 27 at p. 50 : (AIR 1954 SC 470 at pp.In that decision this Court accepted the definition given to the words "accrue" and "arise" by Mukerji, J., in Rogers Pratt Shellack and Co. v. Secretary of State for India, 1 ITC 363 at p. 371 : (AIR 1925 Cal 34 at pp.which is as followsboth the words are used in contradistinction to the word "receive" and indicate a right to receive. They represent a stage anterior to the point of time when the income becomes receivable and connote a character of the income which is more or less inchoate." | 1 | 3,583 | 1,610 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
any contractual obligation but purely by a voluntary act of the purchaser. Though the additional amounts accrued to the assessee in a later year, it was regarded as analogous to a trade debt due in respect of the trading operation of the earlier year. On that principle the accounts were reopened in order to bring the increase into profits of the assessee in the year of transaction. This decision was accepted and extended in Severne v. Dadswell, (1954) 35 Tax Cas 649. As this decision is the basis for the High Courts view, we shall give its facts in some detail. The respondent therein was granted a licence to mill flour in October, 1941, and carried on the trade of flour milling until September, 1945. As he had not been a miller at the outbreak of war, he was not entitled to the benefit of a remuneration agreement whereby millers were compensated by the Ministry of Food for losses incurred under wartime arrangements for the purchase of wheat and sale of flour. Having, however, been informed by the Ministry in 1943 and twice later that the remuneration of millers who had begun milling during the period of control was under consideration, he made a claim in 1949 on the same basis as that laid down in the remuneration agreement and received payments in settlement. The respondent contended that the sums received in 1949 were not trading receipts but ex gratia payments, and alternatively, that they were received after the cessation of his trade and that if there was a debt arising to the trade at the date of cessation its value at that date was nil. The Court held that the said payments were ex gratia; and it further held that, if on the discontinuance of a trade payment for work already done in a year had not been finally settled, accounts for that year could be reopened so as to bring in a gratuitous payment for such work made in a subsequent year. This judgment certainly supports the respondent. Though it could be distinguished on the ground that in that case it was found that the payment for the work already done had not been finally settled whereas in the present case there is nothing on the record to disclose that it was not finally settled. We would prefer to base our conclusion on the ground that we cannot extend the meaning of the word "accrue" or "arise" in S. 4 (1) (b) (i) of the Act so as to take in amounts received by the assessee in a later year, though the receipt was not on the basis of the right accrued in the earlier year. Such amounts are in law received by the assessee only in the year when they are paid. We cannot apply the English decisions in the matter of construction of the provisions of the Indian Act, particularly when they have received an authoritative interpretation from this Court. In this view, it is not necessary to consider further English decisions cited by learned counsel for the respondent in support of his contention. Before a Division Bench of the Allahabad High Court in Commissioner of Income-tax, U. P. and V. P. v. Kalicharan Jagannath 1961-41 ITR 40 (All) when a similar question arose, learned counsel appearing for the Revenue relied upon the said English decisions, but the High Court, rightly, refused to act on them on the ground that they were not relevant in interpreting S. 4 of the Indian Income-tax Act. It further made an attempt to distinguish those decisions on grounds based upon the alleged difference in the scope of the provisions of the respective countries. It was said that under the relevant English Act the excess profits duty was payable on computation of profits arising from a trade or business in different chargeable accounting periods and, therefore, the emphasis there was more upon the carrying on of the trade within the chargeable period than on the income accruing during that period. But we do not propose to express our view on this aspect of the question, as the relevant sections of the English Acts have not been placed before us. The learned Judges, after having rightly refused to rely upon the English decisions, construed the provisions of the Indian statute. There, during the accounting period April 1, 1945 to March 31, 1946, the assessee entered into a contract with and supplied fruits and bullock carts to, the military authorities at two different places at rates fixed by the agreement. The assessee incurred a loss and he submitted a petition for review under the terms of the agreement. On November 6, 1947, the military authorised sanctioned the payment of an additional sum which was paid to the assessee on February 17 ad 24, 1948. The Income-tax Department sought to include this additional sum in the assessment for the accounting year 1945-46. The High Court held that until the order of review the only right that the assessee had was to claim the money payable at the rates laid down in the agreement itself and that the additional amount became payable to the assessee not by virtue of any right conferred by the agreement, but because of the order passed in review directing the payment of the amount and thus creating a right to this amount in favour of the assessee. As the right to receive the payment of the additional sum arose after the closing of the accounting year 1945-46, the High Court proceeded to hold that the income did not accrue or arise to the assessee in the accounting year. It may be pointed out that in that case the original agreement gave a right to apply for review and notwithstanding that fact the court held that the additional payment could not be held to have accrued during the accounting year. For the reasons already stated by us, we are entirely in agreement with the view expressed by the Allahabad High Court.10
### Response:
1
### Explanation:
payment for the work already done had not been finally settled whereas in the present case there is nothing on the record to disclose that it was not finally settled. We would prefer to base our conclusion on the ground that we cannot extend the meaning of the word "accrue" or "arise" in S. 4 (1) (b) (i) of the Act so as to take in amounts received by the assessee in a later year, though the receipt was not on the basis of the right accrued in the earlier year. Such amounts are in law received by the assessee only in the year when they are paid. We cannot apply the English decisions in the matter of construction of the provisions of the Indian Act, particularly when they have received an authoritative interpretation from this Court. In this view, it is not necessary to consider further English decisions cited by learned counsel for the respondent in support of his contention. Before a Division Bench of the Allahabad High Court in Commissioner of Income-tax, U. P. and V. P. v. Kalicharan Jagannath 1961-41 ITR 40 (All) when a similar question arose, learned counsel appearing for the Revenue relied upon the said English decisions, but the High Court, rightly, refused to act on them on the ground that they were not relevant in interpreting S. 4 of the Indian Income-tax Act. It further made an attempt to distinguish those decisions on grounds based upon the alleged difference in the scope of the provisions of the respective countries. It was said that under the relevant English Act the excess profits duty was payable on computation of profits arising from a trade or business in different chargeable accounting periods and, therefore, the emphasis there was more upon the carrying on of the trade within the chargeable period than on the income accruing during that period. But we do not propose to express our view on this aspect of the question, as the relevant sections of the English Acts have not been placed before us. The learned Judges, after having rightly refused to rely upon the English decisions, construed the provisions of the Indian statute. There, during the accounting period April 1, 1945 to March 31, 1946, the assessee entered into a contract with and supplied fruits and bullock carts to, the military authorities at two different places at rates fixed by the agreement. The assessee incurred a loss and he submitted a petition for review under the terms of the agreement. On November 6, 1947, the military authorised sanctioned the payment of an additional sum which was paid to the assessee on February 17 ad 24, 1948. The Income-tax Department sought to include this additional sum in the assessment for the accounting year 1945-46. The High Court held that until the order of review the only right that the assessee had was to claim the money payable at the rates laid down in the agreement itself and that the additional amount became payable to the assessee not by virtue of any right conferred by the agreement, but because of the order passed in review directing the payment of the amount and thus creating a right to this amount in favour of the assessee. As the right to receive the payment of the additional sum arose after the closing of the accounting year 1945-46, the High Court proceeded to hold that the income did not accrue or arise to the assessee in the accounting year. It may be pointed out that in that case the original agreement gave a right to apply for review and notwithstanding that fact the court held that the additional payment could not be held to have accrued during the accounting year. For the reasons already stated by us, we are entirely in agreement with the view expressed by the Allahabad High Court.With great respect to the learned Judges of the High Court we must point out that the decision of the High Court is deflected by its reliance on English decisions delivered under circumstances peculiar to that country and on the construction of provisions which are not in pari materia with the provisions obtaining incaution administered by this Court shall always be borne in mind in construing the provisions of the Indian statue.The provisions of the IndianAct shall be construed on their own terms without drawing any analogy from English statutes whose terms may superficially appear to be similar but on a deeper scrutiny may reveal differences not only in the wording but also in the meaning a particular expression has acquired in the context of the development of law in that country.7. The problem raised before us can only be answered on the true meaning of the express words used in S. 4(1) (b) (i) of theare not concerned in this case with the expression "deemed to accrue or arise to him," as that expression refers to cases set out in the statute itself introducing a fiction in respect of certain incomes. In regard to the question, when the whether an income accrues or arises within the meaning of the first part of the said clause, we have a decision of this Court which has clearly enuncited the principle underlying the said expression: that is the decision in E. D. Sassoon and Company Ltd. v. Commissioner ofSCR 313 at p. 342 :ITR 27 at p. 50 : (AIR 1954 SC 470 at pp.In that decision this Court accepted the definition given to the words "accrue" and "arise" by Mukerji, J., in Rogers Pratt Shellack and Co. v. Secretary of State for India, 1 ITC 363 at p. 371 : (AIR 1925 Cal 34 at pp.which is as followsboth the words are used in contradistinction to the word "receive" and indicate a right to receive. They represent a stage anterior to the point of time when the income becomes receivable and connote a character of the income which is more or less inchoate."
|
Sunil Poddar Vs. Union Bank Of India | against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation.-Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. (emphasis supplied) 19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff’s claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside.20. In our opinion, the Tribunals were also right in commenting on the conduct of the appellants/defendants that they were appearing before Civil Court through an advocate, had filed written statement as also applications requesting the Court to treat and try certain issues as preliminary issues. All those facts were material facts. It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of the Act when they requested the DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the Civil Court they were present and were also represented by an advocate. An impression was sought to be created by the defendants/appellants as if for the first time they came to know in December, 2000 that an ex parte order had been passed against them and immediately thereafter they had approached the DRT. The Debt Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application. In an appeal against the said order, the DRAT observed that the appellants had “willfully suppressed the fact that they were not in the know of the proceedings when the same was proceeding in the Civil Court”. The DRAT correctly stated that even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT. The Appellate Tribunal rightly concluded; “In the present case, the appellants very artistically have suppressed the fact of their filing of written statement in the case while it was proceeding in the Civil Court and were being represented by their lawyer till the date of its transfer to the Tribunal at Jabalpur”. 21. The High Court, in our judgment, was equally right in dismissing the petition confirming the finding of the DRAT that the appellant had “artistically” suppressed material fact and no interference was called for.22. Finally, we are exercising discretionary and equitable jurisdiction under Article 136 of the Constitution. From the facts and circumstances of the case in their entirety, we do not feel that there is miscarriage of justice. On the contrary, we are convinced that the appellants had not come forward with clean hands. They wanted to delay the proceedings. Though they were aware of the proceedings pending against them, had appeared before the Civil Court, but then did not care to inquire into the matter. Even after ex-parte order was passed, in an application for setting aside the order, they had not candidly disclosed all the facts that they were aware of such proceedings and were represented by a counsel. In the light of all these facts and keeping in view the provisions of Section 22 (2)(g) of the Act read with Rule 13 of Order IX of the Code, if the Debt Recovery Tribunal dismissed the application and the said order was confirmed by the Debt Recovery Appellate Tribunal and by the High Court, it cannot be held that those orders were wrong and ex parte order should be quashed. | 1[ds]11. Having heard the learned counsel for the parties, in our opinion, the appellants have not made out any ground on the basis of which the order passed by the DRT, confirmed by the DRAT and by the High Court can be set aside. From the record, it is clearly established that the suit was instituted by the plaintiff-Bank as early as in August, 1993. The appellants who were defendant Nos. 7 to 9 were aware of the proceedings before the Civil Court. They appeared before the Court, engaged an advocate and filed a written statement. They raised preliminary objections as also objections on merits. They filed applications requesting the Court to raise certain issues and try them as preliminary issues. It was, therefore, obligatory on their part to appear before the DRT, Jabalpur when the matter was transferred under the Act. The appellants, however, failed to do so. We are not impressed by the argument of the learned counsel for the appellants that they were not aware of the proceedings before the DRT and summonses could not be said to have been duly served. As is clear, summonses were issued earlier and on the same address, summonses were sought to be served again after the case was transferred to DRT. There is substance in the submission of the learned counsel for the respondent-Bank that the appellants had avoided service of summons as they wanted to delay the proceedings. We are also inclined to uphold the argument of learned counsel for the Bank that in view of the fact that the appellants were appearing before the Civil Court, it was not necessary for the Bank to get summonses published in a newspaper after the matter was transferred in accordance with law to the DRT, Jabalpur. But even that step was taken by the respondent-Bank. In, a Hindi newspaper having wide circulation in Bombay and Raipur, summonses were published. It cannot be argued successfully that the appellants were not the subscribers of the said newspaper and were not readingdi Edition. But even otherwise, such contention is wholly irrelevant. As to bills said to have been produced from the newspaper agent, to us, both the Tribunals were right in observing that such a bill can be obtained at any time and no implicit reliance can be placed on that evidence. It is immaterial whether appellants were subscribers of the said newspaper and whether they were reading it. Once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper. That ground also, therefore, does not impress us and was rightly rejected by the Tribunals.But the fundamental objection which had been raised by the respondent-Bank and upheld by the Tribunals is legally well-founded. In the application filed by the appellants before the DRT, Jabalpur under Section 22(2)(g) of the Act, there is no murmur that the applicants were defendants in the suit instituted in Civil Court; they were served and they appeared through an advocate and also filed a written statement and other applications requesting the Court to try certain issues as preliminary issues. It was expected of the appellants to disclose all those facts. Apart from suppression of fact as to service of summons and appearance of defendants before the Court, even on legal ground, it was not obligatory that the appellants should have been served once again.It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered theclaim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside.20. In our opinion, the Tribunals were also right in commenting on the conduct of the appellants/defendants that they were appearing before Civil Court through an advocate, had filed written statement as also applications requesting the Court to treat and try certain issues as preliminary issues. All those facts were material facts. It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of the Act when they requested the DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the Civil Court they were present and were also represented by an advocate. An impression was sought to be created by the defendants/appellants as if for the first time they came to know in December, 2000 that an ex parte order had been passed against them and immediately thereafter they had approached the DRT. The Debt Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application. In an appeal against the said order, the DRAT observed that the appellants hadsuppressed the fact that they were not in the know of the proceedings when the same was proceeding in the CivilThe DRAT correctly stated that even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT.The High Court, in our judgment, was equally right in dismissing the petition confirming the finding of the DRAT that the appellant hadsuppressed material fact and no interference was called for.22. Finally, we are exercising discretionary and equitable jurisdiction under Article 136 of the Constitution. From the facts and circumstances of the case in their entirety, we do not feel that there is miscarriage of justice. On the contrary, we are convinced that the appellants had not come forward with clean hands. They wanted to delay the proceedings. Though they were aware of the proceedings pending against them, had appeared before the Civil Court, but then did not care to inquire into the matter. Even after ex-parte order was passed, in an application for setting aside the order, they had not candidly disclosed all the facts that they were aware of such proceedings and were represented by a counsel. In the light of all these facts and keeping in view the provisions of Section 22 (2)(g) of the Act read with Rule 13 of Order IX of the Code, if the Debt Recovery Tribunal dismissed the application and the said order was confirmed by the Debt Recovery Appellate Tribunal and by the High Court, it cannot be held that those orders were wrong and ex parte order should be quashed. | 1 | 5,486 | 1,429 | ### Instruction:
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against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation.-Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. (emphasis supplied) 19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff’s claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside.20. In our opinion, the Tribunals were also right in commenting on the conduct of the appellants/defendants that they were appearing before Civil Court through an advocate, had filed written statement as also applications requesting the Court to treat and try certain issues as preliminary issues. All those facts were material facts. It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of the Act when they requested the DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the Civil Court they were present and were also represented by an advocate. An impression was sought to be created by the defendants/appellants as if for the first time they came to know in December, 2000 that an ex parte order had been passed against them and immediately thereafter they had approached the DRT. The Debt Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application. In an appeal against the said order, the DRAT observed that the appellants had “willfully suppressed the fact that they were not in the know of the proceedings when the same was proceeding in the Civil Court”. The DRAT correctly stated that even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT. The Appellate Tribunal rightly concluded; “In the present case, the appellants very artistically have suppressed the fact of their filing of written statement in the case while it was proceeding in the Civil Court and were being represented by their lawyer till the date of its transfer to the Tribunal at Jabalpur”. 21. The High Court, in our judgment, was equally right in dismissing the petition confirming the finding of the DRAT that the appellant had “artistically” suppressed material fact and no interference was called for.22. Finally, we are exercising discretionary and equitable jurisdiction under Article 136 of the Constitution. From the facts and circumstances of the case in their entirety, we do not feel that there is miscarriage of justice. On the contrary, we are convinced that the appellants had not come forward with clean hands. They wanted to delay the proceedings. Though they were aware of the proceedings pending against them, had appeared before the Civil Court, but then did not care to inquire into the matter. Even after ex-parte order was passed, in an application for setting aside the order, they had not candidly disclosed all the facts that they were aware of such proceedings and were represented by a counsel. In the light of all these facts and keeping in view the provisions of Section 22 (2)(g) of the Act read with Rule 13 of Order IX of the Code, if the Debt Recovery Tribunal dismissed the application and the said order was confirmed by the Debt Recovery Appellate Tribunal and by the High Court, it cannot be held that those orders were wrong and ex parte order should be quashed.
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the DRT, Jabalpur. But even that step was taken by the respondent-Bank. In, a Hindi newspaper having wide circulation in Bombay and Raipur, summonses were published. It cannot be argued successfully that the appellants were not the subscribers of the said newspaper and were not readingdi Edition. But even otherwise, such contention is wholly irrelevant. As to bills said to have been produced from the newspaper agent, to us, both the Tribunals were right in observing that such a bill can be obtained at any time and no implicit reliance can be placed on that evidence. It is immaterial whether appellants were subscribers of the said newspaper and whether they were reading it. Once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper. That ground also, therefore, does not impress us and was rightly rejected by the Tribunals.But the fundamental objection which had been raised by the respondent-Bank and upheld by the Tribunals is legally well-founded. In the application filed by the appellants before the DRT, Jabalpur under Section 22(2)(g) of the Act, there is no murmur that the applicants were defendants in the suit instituted in Civil Court; they were served and they appeared through an advocate and also filed a written statement and other applications requesting the Court to try certain issues as preliminary issues. It was expected of the appellants to disclose all those facts. Apart from suppression of fact as to service of summons and appearance of defendants before the Court, even on legal ground, it was not obligatory that the appellants should have been served once again.It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered theclaim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside.20. In our opinion, the Tribunals were also right in commenting on the conduct of the appellants/defendants that they were appearing before Civil Court through an advocate, had filed written statement as also applications requesting the Court to treat and try certain issues as preliminary issues. All those facts were material facts. It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of the Act when they requested the DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the Civil Court they were present and were also represented by an advocate. An impression was sought to be created by the defendants/appellants as if for the first time they came to know in December, 2000 that an ex parte order had been passed against them and immediately thereafter they had approached the DRT. The Debt Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application. In an appeal against the said order, the DRAT observed that the appellants hadsuppressed the fact that they were not in the know of the proceedings when the same was proceeding in the CivilThe DRAT correctly stated that even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT.The High Court, in our judgment, was equally right in dismissing the petition confirming the finding of the DRAT that the appellant hadsuppressed material fact and no interference was called for.22. Finally, we are exercising discretionary and equitable jurisdiction under Article 136 of the Constitution. From the facts and circumstances of the case in their entirety, we do not feel that there is miscarriage of justice. On the contrary, we are convinced that the appellants had not come forward with clean hands. They wanted to delay the proceedings. Though they were aware of the proceedings pending against them, had appeared before the Civil Court, but then did not care to inquire into the matter. Even after ex-parte order was passed, in an application for setting aside the order, they had not candidly disclosed all the facts that they were aware of such proceedings and were represented by a counsel. In the light of all these facts and keeping in view the provisions of Section 22 (2)(g) of the Act read with Rule 13 of Order IX of the Code, if the Debt Recovery Tribunal dismissed the application and the said order was confirmed by the Debt Recovery Appellate Tribunal and by the High Court, it cannot be held that those orders were wrong and ex parte order should be quashed.
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63, Moons Technologies Limited (Formerly Financial Technologies (India) Limited & Others Vs. The Union of India & Others | was appointed to inspect and audit the position, reported that stock worth only Rs.358 crores was available, even though, NSEL, had solemnly stated that it has stocked valued at Rs.2389.36 crores. This means that there was hardly any stock in the warehouses with which deliveries could be effected. All this, left the Trading Clients in a lurch. The impugned order details the nexus between NSEL and FTIL, in the context of the crisis, which led to the collapse of the spot exchange.385. In MCX Stock Exchange India Limited (supra), the Division Bench of this Court (Dr. D.Y. Chandrachud, J. as His Lordship then was and A.V. Mohta, J.) has held that stock exchanges provide what is described as the first layer of oversight. In many areas, stock exchanges are self regulators. As self regulatory organizations, stock exchanges have a frontline responsibility for regulation of their markets and for controlling compliance by members of rules to which they are subject. They ensure in that capacity, compliance of the requirements established the statutory regulator. Apart from the regulation of members, market surveillance carried on by stock exchanges in certain jurisdictions regulates issuers. They do so by ensuring that the stocks of issuers are reliably traded and that issuers meet standards of corporate governance. In exercising these powers, stock exchanges may face issues involving a conflict of interest. Such conflicts of interest have to be handled and addressed effectively within the regulatory framework. Stock exchanges as institutional mechanisms have an important role to play in ensuring the stability of the financial and economic system.386. The Division Bench notes that the orderly functioning of the market for securities is no longer a matter of a private concern, for those who transact on the market. The market for securities can be volatile. Transactions in the securities market and the transparency of institutional mechanisms have a significant bearing on the wealth of investors. Inflows and outflows of capital from the stock market have an immediate and, often serious, impact on financial stability in the country. The orderly functioning of stock exchanges as institutions through which transactions in securities take place is a matter of public interest. The regulatory powers which have been conferred upon SEBI to recognise stock exchanges must be understood in the context of ensuring the protection of investors on one hand and the public interest that is involved on the other. SEBI is an expert regulatory body which is vested with the power to direct and regulate the functioning of stock exchanges. SEBI, as a regulatory authority, is vested with wide powers to ensure the protection of the interest of investors and the orderly development of the securities market. Ensuring the proper management of stock exchanges is a matter which falls within the regulatory framework which SEBI directs. Where the affairs of a recognized stock exchange are conducted in a manner detrimental to the interest of the investors or the securities market, it has consequences not just for the stock holders in the market, but for the financial stability of the nation. Stock exchanges are the first frontiers of regulation, for it is their duty to ensure, in the first instance, that transactions are conducted in a transparent manner and in accordance with the rules and regulations and bye laws that have been approved. Their duty to report to SEBI is an adjunct of the power conferred upon SEBI to regulate.387. In Coimbatore Stock Exchange Limited (supra) , the Madras High Court has observed that as is known, the National Stock Exchange, the Bombay Stock Exchange and the Regional Stock Exchanges in India play the role of a Barometer in the development of Indian economy and in such view of the matter, any action which is detrimental to the interest of the investing public at large and contrary to the provisions of SCRA and SEBI Act, will certainly have a negative impact on the economic system of the country as a whole.388. The distinction made by the petitioners in the course of rejoinder that the decisions in MCX (supra) or Coimbatore Stock Exchange (supra) are concerned with Stock Exchanges and not Commodity Exchanges is really, a distinction without any difference. The observations in the two decisions regards the importance of exchanges to the economic health of the country, apply with full vigor to commodities exchange, particularly, a national level commodities exchange having turnover of thousands of crores.389. The conduct of the affairs of stock and commodity exchanges is of vital importance to the national economy. Stock and commodity exchanges provide vital hubs for investors and traders to trade in share and commodities. Commerce in modern economy is inconceivable without them. The perception of Indian economy, both locally and abroad, depends to a large extent on the functioning and the health of its stock and commodity exchanges. The failure of a national level commodity exchange under circumstances as stated in the impugned order, is clearly, a matter of serious concern. It is reported that almost 99.99% of the ostensible spot trading in commodities in the entire country was taking place on the NSEL spot exchange. The paired contracts offered by NSEL, which were in breach of the conditions of exemption notification, alone accounted for a turn over of Rs.1,34,000 crores between the years 2009 to 2013.390. If exchanges such as these are permitted to be subverted or fail without honouring their obligations and commitments, the confidence in national economic institutions is bound to suffer and the repercussion to the national economy will be severe. In such situations, a negative perception about the business environment of the country is created, which has grave repercussions on the national economy. The Central Government, quite conscious of all such factors, has taken a balanced decision in the facts and circumstances of the present case.391. Therefore, in the facts and circumstances of the present case, even upon exercise of intensive review and the application of the test of proportionality, we see no reason to interfere with the impugned order. | 0[ds]152. The impugned order, records and considers in substantial details, the objections and suggestions received from various parties. In paragraph 7.2 and 7.3 of the impugned order, the Central Government, considered and dealt with the various objections and suggestions raised by and on behalf of FTIL and NSEL. As noted earlier, both FTIL and NSEL were even afforded an opportunity of personal hearing. Paras 7.4, 7.5 and 7.6 of the impugned order, the Central Government has considered and dealt with the objections and suggestions on behalf of shareholders, creditors and investors group. In paragraph 7.7, the submissions made by industry chambers have been considered. In paragraph 8.1 and 8.2 suggestions or in piece provided by EOW and Enforcement Directorate have also been considered. Therefore, it is not possible to accept the contention that there has been failure of natural justice on account of anyof objections and suggestions made by FTIL, NSEL, its shareholders, creditors and other interested persons.153. From the record, we are also satisfied that this is not a case where the Central Government has placed reliance upon certain adverse material in the impugned order, without afford of opportunity to FTIL, NSEL and other interested party to refute or submit their explanation to the same. The material which the Central Government proposed to rely upon was substantially reflected in the draft order, which was furnished in compliance with the statutory scheme of Section 396. All the parties had more than ample opportunity to submit their objections and suggestions to the draft amalgamation order. NSEL, FTIL, several of its shareholders, creditors and even employees did in fact, submit their objections and suggestions to the draft order. No specific case has been made out in the context of the contention of any alleged failure of natural justice for taking into consideration adverse material, not made known to the parties. On basis of vague allegations and oral submissions, it is not possible to fault the impugned order on the ground of failure of natural justice.154. There was a complaint that principles of natural justice were not followed before FMC or other regulatory agencies recommended action under Section 396. This complaint, is quite misconceived. There is no requirement of compliance with principles of natural justice before FMC or any other regulatory authority proposes or recommends action under Section 396. In this case, the record bears out that such proposals/recommendations were made known to the parties likely to be affected and such parties made their detailed submissions why such proposals and recommendations be not acted upon. As noted earlier, the principles of natural justice cannot be placed in some straitjacket formula. Upon consideration of totality of circumstances, it is quite clear that the affected parties were treated fairly and consistent with the principles of natural justice.155. This is also not a case of there being any variation between the grounds set out in the proposed order and in the impugned order. Such a ground was therefore rightly not raised in the pleadings or argued in the first instance. The petitioners themselves contend that the impugned order is quasi judicial in nature. The impugned order does address objections and suggestions made by the petitioners themselves. Section 396(4) (b), itself contemplates that the Central Government, upon consideration of suggestions and objections as received, makes such modifications, if any, in the draft order as may seem to it desirable in the light of such suggestions and objections. The fact that exhaustive suggestions and objections were made by the petitioners upon virtually all facets of the draft order, itself suggests that full opportunity was afforded to the parties to put forth their suggestions and objections. There is no case of failure of natural justice or fair play, therefore made out by the petitioners in the facts and circumstances of the present case.156. Extensive submissions were made to urge that the impugned order in the present case was in the nature of delegated or subordinate legislation. On this basis, it was urged that the principles of natural justice were inapplicable, except perhaps to the extent indicated in the parent statute. In this case, proceeding on the basis that the impugned order is an administrative or at the highest a quasi judicial order as urged by the petitioners, we find that there was no breach in compliance with the principles of natural justice and fair play. Therefore, we do not deem it necessary to address the issue as to whether the impugned order is in the nature of delegated or subordinate legislation. Even independent of any decision upon such issue, in the facts and circumstances of the present case, we are satisfied that no case has been made out to interfere with the impugned order on the ground of any failure in compliance with the principles of natural justice and fair play.157. Accordingly, for all the aforesaid reasons, we are unable to fault the impugned order on the ground of non compliance with the principles of natural justice and fair play or on the ground of any breach of our directions in order dated 4th February 2015.In this case, since FTIL, NSEL and in particular their shareholders have failed to demonstrate that they have been deprived of their property, there is no question of any infringement of Article 300A of the Constitution. The shareholders cannot confuse between the property of the companies and the interest which they hold by virtue of their shareholding. Further, none of the petitioners have demonstrated any infringement of their rights under Articles 14 and 19 of the Constitution. Accordingly, there is no necessity to go into the issue of any derivative immunity, which might or might not attach to the impugned order made under Section 396. Only if the petitioners had made out a case that the impugned order infringes the rights guaranteed to them under Articles 14, 19 or 300A of the Constitution, could the issue of derivative immunity have assumed importance. Since, this is not the case, we do not deem it necessary to go into the issue of derivative immunity.201. Therefore, upon cumulative consideration of the aforesaid, we are unable to accept the contention that the Central Government wasin law or on facts to order the compulsory amalgamation of allegedly loss making wholly owned subsidiary (NSEL) with its profit making holding company (FTIL) in public interest by resort to Section 396.The contention based on thedraconian consequences of compulsory amalgamation cannot impact statutory interpretation particularly where the statute is clear, plain and unambiguous. Normally, in such a situation, the courts are bound to give effect to the meaning, irrespective of the consequences. This is not to say that the petitioners have established any draconian consequences. On one hand, the petitioners suggest that there is no possibility of NSEL being adjudged liable to the investors. The petitioners also suggest that there are sufficient assets already attached to satisfy decrees against defaulters. On the other hand, the petitioners, expressed apprehensions of draconian consequences on the premise that liability may be foisted on NSEL for making good the amount of over Rs.5600 crores to the investors. The statutory construction of a provision which is clear, plain and unambiguous cannot sway on the basis of such inconsistent apprehensions.The matter can be viewed from yet another perspective. In the context ofwe have already examined the scope of Section 396(3) and held that the interest of the shareholder referred to therein does not include the economic value of their shareholding or some right to earn profits through any capital appreciation of listed value of shares. Further, we have held that the question of assessment of compensation arises only where the shareholders interest in or rights against the resultant company are not, as nearly as may be, the same as the shareholders interest in or rights against the original company. We have also held that in so far as the shareholders of FTIL are concerned there is no diminution in their interest in or rights against the resultant company as compared to their interest in or rights against the original company.218. This means that even on merits, there is no infirmity in the assessment order dated 1st April 2015 to the extent, it denies compensation to the shareholders of FTIL. The same is the position of the creditors of FTIL. There is nothing in the provisions of Section 396(3) which suggest that prior hearing has to be afforded to members or creditors before assessment order is made. Nothing prevented the shareholders from raising their objections in response to the draft order. Several shareholders, including perhaps the petitioners, did in fact, raise objections. If the shareholders were aggrieved by the assessment order dated 1st April 2015 because it awarded them no compensation, nothing 132 of prevented them from instituting appeal under Section 396(3A) within period of 30 days from the date of publication of the assessment in the Official Gazette. At best, the contention now raised by the petitioners, which again, is not at all backed by any pleadings, is some hyper technical objection based upon the form of assessment order dated 1st April 2015. In the facts and circumstances of the present case, we are not inclined to exercise ourand equitable jurisdiction under Articles 226 and 227 of the Constitution and upset the impugned order on the ground urged.219. For all the aforesaid reasons, we are satisfied that this is not a case where the Central Government or the prescribed authority has failed to make any order as contemplated by Section 396(3) or that the shareholders or creditors of FTIL were deprived of opportunity of appeal under Section 396(3A) and therefore there is any breach of the procedure prescribed in Section 396(4) in making the impugned order. Accordingly, we see no merit in the contention that the impugned order is ultra vires Section 396.We see no merit in any of the aforesaid contentions. There is nothing in either the text or the context of Section 396 to suggest that the same can be invoked only in respect of government companies. Even assuming that the provisions of Section 396 have been invoked for the first time to amalgamate two non government companies, such a circumstance neither vitiates the exercise of such power nor can the same be struck down as involving any hostile or invidious discrimination.223. The argument of novelty, can perhaps be best answered, in the words of Lord Denning in Packer vs. Packer (1953 (2) ALL ER 127)What is the argument on the other side Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything, which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.Since, Section 396 contemplates no application to the Court or Tribunal under Section 391 or otherwise, there was no necessity of expressly excluding the application of Section 391 from the scheme of Section 396. In order to obviate any contention that the Central Government, in the exercise of its powers under Section 396, is nevertheless required to apply the same parameters as are prescribed to the courts or tribunals in Section 394, the legislature may have deemed it appropriate to provide for a non obstante clause to override the effect of Sections 394 and 395.239. Besides, if the provision in Section 396 is analyzed, it is apparent it represents a complete Code in so far as amalgamation of two or more companies by the Central Government in public interest, is concerned. Therefore, on the basis of circular dated 20th April 2011, it is not possible to read into Section 396 the provisions of Section 391.240. Since, the petitioners have failed to establish that the impugned order made by the Central Government is in violation of Article 14 of the Constitution, there is really no reason to go into the issue as to whether the impugned order enjoys any derivative immunity under Article 31A (1)(c) of the Constitution. The issue of immunity, whether derivative or otherwise would have arisen, had, the petitioners been able to establish that the impugned order was in violation of Articles 14 of 19 of the Constitution. Since, the petitioners have failed to establish any violation of Article 14 or 19 of the Constitution, there is no necessity to go into the issue of immunity, whether derivative or otherwise.241. Accordingly, we are unable to fault the impugned order on the ground of violation of Article 14 of the Constitution or on the basis of the petitioners reading of the Central Governments circular dated 20th April 2011.Significantly, neither Mr. Mookherjee nor Mr. Dwarkadas chose to elaborate upon the distinction, if any, between national interest and public interest in the context of Section 396. They merely suggested that some test more stringent than what might apply to public interest will have to be applied, in determining national interest. Since, the learned counsel mainly rely upon Notes on Clauses to the 1959 Bill which states that the amendment to substitute national interest with public interest in Section 396 is of a drafting nature , there is no reason to accept their contention that nevertheless there is some distinction between the two expressions in the context of Section 396. If at all, there is any distinction between the two expressions, then, the circumstance that the Parliament, in terms, has chosen to amend Section 396 so as to substitute the expression national interest with public interest, will have to be respected and not ignored.254. In fact, even the decision of the Gujarat High Court in Wood Polymer Limited (supra) relied on by Mr. Mookherjee expressly states that the expression "public interest" is sometimes used as an expressionfor the national interest. This is a term very often used in contradistinction to "private interest" or "personal interest". It is something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected (vide Blacks Dictionary, 4th edition, p. 1393). The word "public" has a very wide connotation, and though the word "public" has a very wide connotation, the perspective in which it is used will determine its ambit. The expression "interest of the general public" came in for construction in Emperor v. Jesingbhai (1948) 50 Bom LR 54), wherein it was held that it is an expression of wide connotation and has got several implications. As the expression will take its colour from the context in which it is used, the object behind the legislative intendment within which it is used and the mischief it seeks to suppress, all these factors will enter into the verdict in deciding what constitutes public interest in the context of the legislation in which it is used. In the very nature of the case, modern conditions and the increasingof the different human factors in the progressive complexity of a community make it necessary for the Government to touch upon and limit individual activities at more points than formerly. (Vide State of Bihar v. Maharajdhiraj Sir Kameshwar Singh of Darbhanga (AIR1952 SC 252).255. In any case, taking into consideration the importance of stock and commodity exchanges to the national economy and the unprecedented situation which the Central Government was required to deal with in the wake of collapse of the entire commodities exchange, we are unable to hold that the impugned order was not made in national interest.256. The decisions in MCX Stock Exchange (supra) and Coimbatore Stock exchange (supra), highlight on the importance of stock and commodity exchanges to the national economy. These decisions hold that the perception of the Indian economy, both locally and abroad, depends, to a large extent, on the functioning and health of its stock and commodity exchanges. The Central Government, in this case, having taken measures to deal with an unprecedented situation arising out of the failure of a national level commodity exchange leaving investors with claims of over Rs.5600 crores, in a lurch, is certainly a matter involving national interest.257. For all the aforesaid reasons, we are unable to fault the impugned order on the ground that it makes no specific reference to national interest but focuses merely on public interest.This is not a case of compulsory amalgamation of two unrelated companies. NSEL, is admittedly a wholly owned subsidiary of FTIL in which FTIL holds 99.9998% stake. Since FTIL is effectively the only shareholder of NSEL, the constitution of the Board of Directors of NSEL is naturally controlled by FTIL. There is material on record to suggest that minutes of board meetings of NSEL were regularly tabled at the board meetings of FTIL. Jignesh Shah, directly or indirectly has a stake of 46% in FTIL. At the relevant time, Jignesh Shah was described as Founder Chairman and Group CEO of FTIL, apart from being of Managing Director of FTIL. Jignesh Shah at the relevant time was described as a Vice Chairman of NSEL and also the Head of the Audit Committee of NSEL. As per the accounting standards, the balance sheets and other accounts of NSEL were required to be and were routinely placed before the Board of FTIL.277. There is material to indicate that both NSEL and FTIL had common key personnel. There is material to indicate that software for the operations at the NSEL Exchange had in fact been provided by FTIL. The FTIL, loaned an amount of Rs.179 crores or thereabouts to NSEL to enable NSEL to at least settle the investors with claims upto Rs.2 lakhs. The FTIL, in the course of these proceedings has filed an affidavit to state that it has, till date, infused an amount of Rs.109 Lakhs in NSEL towards working capital and to assist NSEL in recovery proceedings against defaulters. The affidavit states that FTIL has committed further amount of Rs.50 crores per year for the next 3 years. There is material on record that from July 2013, at NSEL there is hardly any commercial activity or returns. NSEL is confronted with several litigations and the strength of its employees which was 193 in July 2013 has come down to 33 by July 2014. On basis of all such objective facts, if the Central Government, forms the subjective satisfaction that it is essential in public interest to amalgamate NSEL with FTIL so as to give effect to business realities of the case by consolidating the two businesses and preventing FTIL, from distancing itself from NSEL, we can, in the exercise of judicial review see no reason to upset such a decision or hold that such a decision is not in public interest.278. There is sufficient material on record on basis of which the Central Government has subjectively satisfied itself that the amalgamation is essential in public interest to facilitate recoveries of dues from defaulters from pooling human and financial resources of FTIL and NSEL. Despite claims by NSEL that it has the means to and it has been rigorously pursuing recoveries, the fact remains that the position of recoveries is not very promising and may further deteriorate if only NSEL has to fend for itself. In such matters, it is not sufficient that some decrees or attachment orders are obtained. This is also not an issue of mere recoveries but this is an issue of investor confidence in the very functioning of stock and commodity exchanges. If the Central Government, were not to act in a situation of this nature, investor confidence would certainly be a casualty. Such a situation then, has a cascading effect, which is by no means conducive to the national economy.279. The Central Government, in making the impugned order has balanced the interests of the two companies, its shareholders, creditors and employees on one hand and the interests, not only of the investors who may have claims, but also, of the investing public, which is required to be given the confidence that the Central Government will act to see that a holding company does not take shelter behind its wholly owned subsidiary and thereby shirk responsibility in the wake of such an unprecedented payment crisis. The three grounds or reasons stated in the impugned order, in our opinion, were sufficient to arrive at the subjective satisfaction that it was essential in public interest to order the amalgamation of the two companies. This is not a case of exercise of powers for any extraneous considerations or alien purposes.The Supreme Court proceeds to observe that the exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests. At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations. In examining reasonableness, the Court has to keep in mind factors like the directive principles of State policy, prevailing social values and social needs which are intended to be satisfied by the restrictions, the excessiveness of the restrictions. However, no abstract or general pattern or fixed principles of universal application can be applied in such matters. The court will have to examine the matter from case to case basis as also with regard to changing conditions, values of human lives, social philosophy of the Constitution, prevailing conditions and surrounding circumstances. Ultimately, a just balance has to be struck between the restrictions imposed and the social control envisaged.374. Even applying the proportionality test, we are quite satisfied that the impugned order warrants no interference in the facts and circumstances of the present case. The impugned order amalgamates NSEL with FTIL for the three broad reasons set out in the impugned order. In the context of the three reasons, we have already held that neither of them could be regarded as extraneous or irrelevant to the purpose for enactment of Section 396. Thus, it is clear that the action taken was in furtherance of the legitimate aim or the proper purpose, namely, public interest. The measures taken by the impugned order are rationally connected with the fulfillment of the purpose. This means that the means adopted by the Central Government are quite suited to achieve public interest in the facts of the present case.In this case, we find that the Central Government has adopted quite a balanced approach in making the impugned order. The impugned order is certainly not comparable to using a sledge hammer to crack a nut, to borrow the phrase from Leyland and Anthony (Textbook on Administrative Law, 5th Edition). The Central Government in this case, advisedly refrained from making any determination of liability or going into the issue of any alleged fraud. This was in order not to prejudice NSEL or FTIL in the pending litigations. In fact, FTIL, in its petition, had expressed apprehensions that the Central Government might initiate action to supercede the Boards of the Companies thereby assuming full control over the management of the companies. At least, at the stage of making the impugned order, no such option was exercised by the Central Government.Besides, in this case, it is necessary to note that both FMC as well as the Central Government have referred to Grant Thornton report and the objective facts which emanate from the audit report. Merely because some of the inferences flowing from the common objective facts are similar, that by itself, does not suggest surrender, abdication or dictation. FMC, in making its order dated 17th December 2013 was concerned with the issue of declaring FTIL, Jignesh Shah and others as not fit and proper persons in the context of operations at the exchanges considering inter alia the objective facts as borne out by the Grant Thornton report and other relevant material before it. The Central Government, in making the impugned order was concerned with the issue of amalgamation of NSEL with FTIL in public interest, again, on the basis of objective facts, inter alia in the Grant Thornton report and the other material before it. The overlap of some material, is by no means sufficient to vitiate the exercise of subjective satisfaction.362. Once we are satisfied that the Central Government has not made the impugned order solely relying upon FMCs order or by surrendering, abdicating or acting to the dictates of FMC, the circumstance that challenge to the FMCs order is sub judice is not of much significance. The extreme submission in the course of rejoinder that since this court has issued Rule in the petition challenging FMCs order dated 17th December 2013, the Central Government was precluded from even referring to the FMCs order cannot be accepted. As noted earlier, this court, whilst issuing Rule in Writ Petition Nos. 337, 363 and 370 of 2014 challenging FMCs order, proceeded to reject interim relief by order dated 28th February 2014. The special leave petitions against the order dated 28th February 2014, were dismissed as withdrawn. In the order refusing interim relief, this court has noted that FMC has recorded elaborate and detailed findings of fact after considering the evidence on record. The order further notes that such findings have been recorded after compliance with principles of natural justice and the same disclose serious non compliances. No doubt, such observations are only prima facie. The petitioners have themselves contended that in a matter of this nature, it is not sufficient for the Central Government to merely allude to the circumstances but further, there should be at least prima facie proof with regard to such circumstances.363. The material on record, however, indicates that NSEL, offered and promoted contracts which were in breach of the conditions in exemption notification dated 5th June 2007. Further, NSEL offered and promoted paired contracts, which were found to be nothing but financing transactions distinct from genuine sale and purchase transactions in commodities. There is material on record which indicates that NSEL went to the extent of assuring fixed returns to the investors and by the year 2013, almost 99% of the turnover of the exchange comprised such paired contracts. Ultimately, on 31st July 2013, NSEL, suspended the operations at the exchange. At this stage, the commodities sellers defaulted on their outstanding payments obligations to the Trading Clients to the extent of almost Rs.5600 crores. The NSEL also sought to wriggle itself out of its obligations by contending that the counter guarantee was to apply only in relation to specified commodities and since none had been specified, the counter guarantee was in effective. The settlement guarantee fund to be maintained by NSEL and which was stated to be Rs.738.55 crores as on 1st August 2013, was, on 4th August 2013 found to be only Rs.62 crores. Even though the transactions at the spot exchange were to be backed by commodities supposedly checked and stored in warehouses owned and controlled by NSEL, SGS India Limited, which was appointed to inspect and audit the position, reported that stock worth only Rs.358 crores was available, even though, NSEL, had solemnly stated that it has stocked valued at Rs.2389.36 crores. This means that there was hardly any stock in the warehouses with which deliveries could be effected. All this, left the Trading Clients in a lurch. The impugned order details the nexus between NSEL and FTIL, in the context of the crisis, which led to the collapse of the spot exchange.364. For all these reasons, we are unable to fault the impugned order applying the test of Wednesbury unreasonableness.Therefore, even applying the triple test formulated by Lord Diplock for judicial review, we are satisfied that there is no illegality involved in the making of the impugned order. So also, we are satisfied that there is no procedural impropriety since the impugned order was made after due compliance with principles of natural justice and fair play. The procedural element in Section 396 was also followed by the Central Government in making the impugned order. There is no irrationality involved because in the facts of the present case there is no basis to even suggest that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. There is material in this case to hold that the subjective satisfaction recorded by the Central Government is based on objective facts its stand more than prima facie established. This is also not a case where relevant considerations have been ignored or irrelevant considerations taken into account by the Central Government in making the impugned order.355. This is also not a case where the Central Government has in fact lifted corporate veil despite the allegedof the circumstances justifying the lifting of such corporate veil. The provisions of Section 396 are based upon the premise that each of the companies proposed to be amalgamated are companies having their independent corporate existence and corporate personality. This is not a case where the Central Government, has lifted the corporate veil and sought to apportion any liability upon either NSEL or FTIL. This is also not a case where the Central Government has sought to apportion any liability of NSEL upon FTIL. Rather, the Central Government, in public interest, has chosen to amalgamate the two companies, thereby acknowledging their corporate veil. Besides, Mr. Khambata may not be entirely incorrect in his submission that the facts and circumstances of the present case may have justified the lifting of corporate veil. Accordingly, we are unable to fault the impugned order on the ground that the same involves lifting of corporate veil without existence of any circumstances warranting such lifting.In the present case, we are unable to accept Mr. Chinoys contention that the impugned order could never have been made by any reasonable man or authority on the ground that the amalgamation would facilitate NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL and that such a reason is extraneous.299. In Ion Exchange (India) Limited (2002 (1) Mh.L.J. 411), the learned Single Judge of this Court Dr. D.Y. Chandrachud, J. (as His Lordship then was), has held that the pooling of human, material and financial resources between a holding company and its loss making wholly owned subsidiary cannot be regarded as an extraneous or an irrelevant factor in their amalgamation. Viewed in the context of business realities, this is a permissible object and nothing militates against public interest or commercial morality. No doubt, that was a case involving consensual amalgamation between a holding company and its loss making wholly owned subsidiary. However, the observations therein answer the contention that pooling of human material and financial resources between a holding company and its loss making wholly owned subsidiary, viewed from the context of business realities, is neither any extraneous, irrelevant consideration nor is such a consideration contrary to public interest or commercial morality.300. In Ion Exchange (India) Ltd. (supra), this Court has held that though, as a matter of law, the transferee companies are independent corporate entities, equally, as a matter of business reality, the Court cannot ignore the plea of the Transferee Company that the that the health and the well being of its wholly owned subsidiaries was a matter which was legitimately entitled to be taken into account by the Transferee Company in coming out with the decision to amalgamate its wholly owned subsidiaries with itself. In the circumstances, the plea that the scheme of Amalgamation is an attempt to reduce the business and operational losses, inclusive of manpower and machinery costs ought to be accepted. Similarly the foundation of the scheme for Amalgamation is that the amalgamation will enable the three Companies to pool together human, material and financial resources. This consideration particularly in a case where the two Transferor Companies are wholly owned subsidiaries cannot be regarded as extraneous or irrelevant. This Court, taking into consideration the business reality noted that the holding company seeks to emerge from the economic difficulty which face its subsidiaries which have become loss making entities. The effort is to pool together human, financial and material resources and to deploy them, upon amalgamation in a manner that would enhance profitability. This is a permissible object and nothing in the proposed scheme in the present case militates against commercial morality, the public interest or a view which a reasonable body or shareholders or creditors would adopt. The impugned order cannot, in such circumstances, be held to be irrational or based on any extraneous or irrelevant considerations.301. For all the aforesaid reasons, we are unable to accept Mr.Chinoys contention that the impugned order is based on only one ground or reason. We are also unable to accept Mr. Chinoys contention that there was no material on record in support of such ground or reason and further, such ground or reason was not sufficient to prompt any reasonable man or authority to order the compulsory amalgamation of NSEL with FTIL.Again, we are satisfied that there is ample material on record, on basis of which, the Central Government could have and has arrived at the satisfaction that the NSEL lacked necessary financial and infrastructural wherewithal to make recoveries from the defaulters, who may have traded on the spot exchange platform of NSEL. Therefore, it is not possible to accept Mr.Chinoys contention that there exist no objective facts on which the Central Government could have been subjectively satisfied.288. There is material on record, which is in fact undisputed that NSEL was loaned an amount of Rs.179.26 crores by FTIL for distribution to the small investors, who, suffered losses by trading the platform and spot exchange of NSEL. There is material on record that NSEL, after it closed the operations at the spot exchange on 31st July 2013 had assured the investors/traders that revised settlement calender would be announced after 15 days period. On 14th August 2013, NSEL, informed FMC that it would calculate the net obligation of the members and proposed a settlement plan extending over 30 weeks. Again, this assurance was made subject to realisation of funds from the concerned members. NSEL, however, defaulted on its own settlement plan from the 1st week itself. As of 22nd September 2014, NSEL, could disburse only an amount of Rs.541.69 crores as against net obligations of over Rs.5600 crores.The aforesaid contention, coming as it does from NSEL, is in direct conflict with the averment in NSELs affidavit dated 15th April 2016 sworn by Santosh Dhuri, which reads thus:10. It is submitted that the bedrock of the impugned draft order is a proposal dated 18 August 2014 sent by Forward Markets Commission (FMC), to the Central Government thereby asking Central Government to invoke section 396 for amalgamation of NSEL with FTIL. It is submitted that said FMCs proposal itself based on erroneous andof facts which were not laid out before the Central Government in its right and correct perspective and which in our opinion misled the Central Government in passing the impugned draft order. It is submitted that the Central Government has blindly relied upon the said FMC proposal in the impugned final order without applying its mind independently and objectively to the material placed on record by the Respondent No.3 vide its objections, oral hearing and written submissions filed before the Ld Committee.285. The contention raised by counsel for NSEL is directly contrary to even NSELs understanding of the impugned order. None of the petitioners or the intervenors read the impugned order in the manner suggested by the counsel for NSEL. In any case, bare perusal of the impugned order indicates that the same is based upon three distinct and discernible grounds or reasons, each of which represents a facet of public interest which is sine qua non for exercise of powers under Section 396. | 0 | 66,829 | 6,613 | ### Instruction:
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was appointed to inspect and audit the position, reported that stock worth only Rs.358 crores was available, even though, NSEL, had solemnly stated that it has stocked valued at Rs.2389.36 crores. This means that there was hardly any stock in the warehouses with which deliveries could be effected. All this, left the Trading Clients in a lurch. The impugned order details the nexus between NSEL and FTIL, in the context of the crisis, which led to the collapse of the spot exchange.385. In MCX Stock Exchange India Limited (supra), the Division Bench of this Court (Dr. D.Y. Chandrachud, J. as His Lordship then was and A.V. Mohta, J.) has held that stock exchanges provide what is described as the first layer of oversight. In many areas, stock exchanges are self regulators. As self regulatory organizations, stock exchanges have a frontline responsibility for regulation of their markets and for controlling compliance by members of rules to which they are subject. They ensure in that capacity, compliance of the requirements established the statutory regulator. Apart from the regulation of members, market surveillance carried on by stock exchanges in certain jurisdictions regulates issuers. They do so by ensuring that the stocks of issuers are reliably traded and that issuers meet standards of corporate governance. In exercising these powers, stock exchanges may face issues involving a conflict of interest. Such conflicts of interest have to be handled and addressed effectively within the regulatory framework. Stock exchanges as institutional mechanisms have an important role to play in ensuring the stability of the financial and economic system.386. The Division Bench notes that the orderly functioning of the market for securities is no longer a matter of a private concern, for those who transact on the market. The market for securities can be volatile. Transactions in the securities market and the transparency of institutional mechanisms have a significant bearing on the wealth of investors. Inflows and outflows of capital from the stock market have an immediate and, often serious, impact on financial stability in the country. The orderly functioning of stock exchanges as institutions through which transactions in securities take place is a matter of public interest. The regulatory powers which have been conferred upon SEBI to recognise stock exchanges must be understood in the context of ensuring the protection of investors on one hand and the public interest that is involved on the other. SEBI is an expert regulatory body which is vested with the power to direct and regulate the functioning of stock exchanges. SEBI, as a regulatory authority, is vested with wide powers to ensure the protection of the interest of investors and the orderly development of the securities market. Ensuring the proper management of stock exchanges is a matter which falls within the regulatory framework which SEBI directs. Where the affairs of a recognized stock exchange are conducted in a manner detrimental to the interest of the investors or the securities market, it has consequences not just for the stock holders in the market, but for the financial stability of the nation. Stock exchanges are the first frontiers of regulation, for it is their duty to ensure, in the first instance, that transactions are conducted in a transparent manner and in accordance with the rules and regulations and bye laws that have been approved. Their duty to report to SEBI is an adjunct of the power conferred upon SEBI to regulate.387. In Coimbatore Stock Exchange Limited (supra) , the Madras High Court has observed that as is known, the National Stock Exchange, the Bombay Stock Exchange and the Regional Stock Exchanges in India play the role of a Barometer in the development of Indian economy and in such view of the matter, any action which is detrimental to the interest of the investing public at large and contrary to the provisions of SCRA and SEBI Act, will certainly have a negative impact on the economic system of the country as a whole.388. The distinction made by the petitioners in the course of rejoinder that the decisions in MCX (supra) or Coimbatore Stock Exchange (supra) are concerned with Stock Exchanges and not Commodity Exchanges is really, a distinction without any difference. The observations in the two decisions regards the importance of exchanges to the economic health of the country, apply with full vigor to commodities exchange, particularly, a national level commodities exchange having turnover of thousands of crores.389. The conduct of the affairs of stock and commodity exchanges is of vital importance to the national economy. Stock and commodity exchanges provide vital hubs for investors and traders to trade in share and commodities. Commerce in modern economy is inconceivable without them. The perception of Indian economy, both locally and abroad, depends to a large extent on the functioning and the health of its stock and commodity exchanges. The failure of a national level commodity exchange under circumstances as stated in the impugned order, is clearly, a matter of serious concern. It is reported that almost 99.99% of the ostensible spot trading in commodities in the entire country was taking place on the NSEL spot exchange. The paired contracts offered by NSEL, which were in breach of the conditions of exemption notification, alone accounted for a turn over of Rs.1,34,000 crores between the years 2009 to 2013.390. If exchanges such as these are permitted to be subverted or fail without honouring their obligations and commitments, the confidence in national economic institutions is bound to suffer and the repercussion to the national economy will be severe. In such situations, a negative perception about the business environment of the country is created, which has grave repercussions on the national economy. The Central Government, quite conscious of all such factors, has taken a balanced decision in the facts and circumstances of the present case.391. Therefore, in the facts and circumstances of the present case, even upon exercise of intensive review and the application of the test of proportionality, we see no reason to interfere with the impugned order.
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man or authority on the ground that the amalgamation would facilitate NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL and that such a reason is extraneous.299. In Ion Exchange (India) Limited (2002 (1) Mh.L.J. 411), the learned Single Judge of this Court Dr. D.Y. Chandrachud, J. (as His Lordship then was), has held that the pooling of human, material and financial resources between a holding company and its loss making wholly owned subsidiary cannot be regarded as an extraneous or an irrelevant factor in their amalgamation. Viewed in the context of business realities, this is a permissible object and nothing militates against public interest or commercial morality. No doubt, that was a case involving consensual amalgamation between a holding company and its loss making wholly owned subsidiary. However, the observations therein answer the contention that pooling of human material and financial resources between a holding company and its loss making wholly owned subsidiary, viewed from the context of business realities, is neither any extraneous, irrelevant consideration nor is such a consideration contrary to public interest or commercial morality.300. In Ion Exchange (India) Ltd. (supra), this Court has held that though, as a matter of law, the transferee companies are independent corporate entities, equally, as a matter of business reality, the Court cannot ignore the plea of the Transferee Company that the that the health and the well being of its wholly owned subsidiaries was a matter which was legitimately entitled to be taken into account by the Transferee Company in coming out with the decision to amalgamate its wholly owned subsidiaries with itself. In the circumstances, the plea that the scheme of Amalgamation is an attempt to reduce the business and operational losses, inclusive of manpower and machinery costs ought to be accepted. Similarly the foundation of the scheme for Amalgamation is that the amalgamation will enable the three Companies to pool together human, material and financial resources. This consideration particularly in a case where the two Transferor Companies are wholly owned subsidiaries cannot be regarded as extraneous or irrelevant. This Court, taking into consideration the business reality noted that the holding company seeks to emerge from the economic difficulty which face its subsidiaries which have become loss making entities. The effort is to pool together human, financial and material resources and to deploy them, upon amalgamation in a manner that would enhance profitability. This is a permissible object and nothing in the proposed scheme in the present case militates against commercial morality, the public interest or a view which a reasonable body or shareholders or creditors would adopt. The impugned order cannot, in such circumstances, be held to be irrational or based on any extraneous or irrelevant considerations.301. For all the aforesaid reasons, we are unable to accept Mr.Chinoys contention that the impugned order is based on only one ground or reason. We are also unable to accept Mr. Chinoys contention that there was no material on record in support of such ground or reason and further, such ground or reason was not sufficient to prompt any reasonable man or authority to order the compulsory amalgamation of NSEL with FTIL.Again, we are satisfied that there is ample material on record, on basis of which, the Central Government could have and has arrived at the satisfaction that the NSEL lacked necessary financial and infrastructural wherewithal to make recoveries from the defaulters, who may have traded on the spot exchange platform of NSEL. Therefore, it is not possible to accept Mr.Chinoys contention that there exist no objective facts on which the Central Government could have been subjectively satisfied.288. There is material on record, which is in fact undisputed that NSEL was loaned an amount of Rs.179.26 crores by FTIL for distribution to the small investors, who, suffered losses by trading the platform and spot exchange of NSEL. There is material on record that NSEL, after it closed the operations at the spot exchange on 31st July 2013 had assured the investors/traders that revised settlement calender would be announced after 15 days period. On 14th August 2013, NSEL, informed FMC that it would calculate the net obligation of the members and proposed a settlement plan extending over 30 weeks. Again, this assurance was made subject to realisation of funds from the concerned members. NSEL, however, defaulted on its own settlement plan from the 1st week itself. As of 22nd September 2014, NSEL, could disburse only an amount of Rs.541.69 crores as against net obligations of over Rs.5600 crores.The aforesaid contention, coming as it does from NSEL, is in direct conflict with the averment in NSELs affidavit dated 15th April 2016 sworn by Santosh Dhuri, which reads thus:10. It is submitted that the bedrock of the impugned draft order is a proposal dated 18 August 2014 sent by Forward Markets Commission (FMC), to the Central Government thereby asking Central Government to invoke section 396 for amalgamation of NSEL with FTIL. It is submitted that said FMCs proposal itself based on erroneous andof facts which were not laid out before the Central Government in its right and correct perspective and which in our opinion misled the Central Government in passing the impugned draft order. It is submitted that the Central Government has blindly relied upon the said FMC proposal in the impugned final order without applying its mind independently and objectively to the material placed on record by the Respondent No.3 vide its objections, oral hearing and written submissions filed before the Ld Committee.285. The contention raised by counsel for NSEL is directly contrary to even NSELs understanding of the impugned order. None of the petitioners or the intervenors read the impugned order in the manner suggested by the counsel for NSEL. In any case, bare perusal of the impugned order indicates that the same is based upon three distinct and discernible grounds or reasons, each of which represents a facet of public interest which is sine qua non for exercise of powers under Section 396.
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Oriental Gas Co. Ltd. & Ors Vs. State Of West Bengal | the plant. 20. We may also refer to Principles and Practice of Rating Valuation by Roger Emeny and Hector M, Wilks. At page 197 of the 3rd edn ., public utility undertakings are considered and it is said: Public Utility Undertakings were prior to 1950 valued by the profits method. This method was used because public utility undertakings were not generally speaking let, added to which they enjoyed some element of monopoly....insofar that there are public utility undertakings or quasi public utility undertakings which are not covered by a formula, and in the absence of rental evidence, it is probable that the profits method of valuation would be applicable. There is no shortage of case law to help the valuer when using the profits method for public utility undertaking. 21. It is thus clear from the very authorities cited by Shri Sen. that tangible and intangible property of a public utility undertaking, may not necessarily be valued separately and it is a sound principle to treat them as indivisible and value the undertaking as an integrated whole. The authorities also treat the capitalisation of net profit as one of the recognised principles of valuation of Public Utility Undertaking, though it may not be the best in the sense that it may not yield that result which is most advantageous t o the owner of the undertaking. But we are not concerned with the question which principle will yield the result most advantageous to the owner of the undertaking but with the question whether the particular principle is a relevant principle at all. In the language used in American Jurisprudence the principle of capitalisation of net income is unquestionably relevant even in the case of Public Utility Undertakings. In our view, it requires no authority to say that capitalisation of net income is a sound principle of valuation. Any purchaser will immediately put himself the question what profit does the undertaking make and how much should I invest to get the return ? He may pay more if the prospects of better income in the future are bright and if the plant, machinery and buildings are in excellent condition. He may pay less if the future is not so bright and if the plant, machinery and buildings are in a poor state and require immediate replacement and repair. He m ay pay more ll if the undertaking is possessed of substantial, unencumbered properties. He may pay less if the lease of the land on which the factory is located is about to expire. Thus the price may vary depending - on various factor s but the basic consideration is bound to be the profit yielding capacity of the undertaking. Shri Sen asserted that the lands belonging to the company which were purchased by way of investment, can fetch a price of Rupees six to seven crores. There is nothing in the petition to indicate that any lands were purchased by way of investments and not for the purpose of gas works or that the lands are capable of being sold independently of the undertaking. Perhaps, no one will come forward to purchase land next to a gas works. Perhaps there are other factors which make the land unsale able or which depreciate the value of the land. We do not know. Suffice it to say that the assertion of Shri Sen is not borne out by any st atement to that effect in the Writ Petition. Shri Sell suggested that the petitioner might be given an opportunity to amend the Writ Petition. We do not think we can do that. The acquisition was made in 1962. The impugned Act was passed in 1970. T he Writ Petition was filed in 1971 and has been pending in this Court for sever years. If there was any substance in the present assertion, the petitioner would surely have mentioned it prominently in the Writ Petition. It would not have taken the petitioner so many years to discover a circumstance claimed by his Counsel to be so very vital. We do not think we will be justified in permitting any amendment at this stage. The case of the petitioner right through has been that the principle of capitalisation of income was irrelevant. With that submission we emphatically do not agree.Shri Sens next submission was that the choice of the period of five years immediately preceding the take over of the management and control of the Company for the purpose of calculating the average annual income was arbitrary as those five years were particularly lean years for the Company because of some special circumstances. The charge of arbitrariness is baseless. The fiv e years immediately preceding the take over of the control and management of the Company were the years 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60 during which years the profits according to the balance sheets of the Company, were Rs. 15, 86, 789, Rs. 13, 81, 177, Rs. 7, 50, 582, Rs. 1, 64, 158 and Rs. 1, 82, 123/- respectively. Now, if the Legislature wanted to be unfair to the Company, the last years profit could have been taken as the criterion on the ground that the value to be ascertained wa s the value on the date of take over and not some hypothetical anterior date. Or, instead of taking the advantage of the period of the preceding five years, the Legislature could well have taken the average of the preceding three years. If that. We should not however be understood as having decided that A Section 9 (2) offends Article 31 (2) of the Constitution. Shri Chatterjee, learned Counsel for the State of West Bengal, argued that the earlier decision of the Calcutta High Court in the petition under Article 226 of the Constitution operated as res judicata. 22. In the view that we have taken on the main question it is unnecessary to consider this argument except to say that there does not appear to be any substance in it. 23. | 0[ds]In fact the very argument of Shri Sen that the principle of capitalisation of net profit as a sole factor to determine compensation is not relevant, appears to us to imply that it is a relevant, principle alongwith others. CAlfred Johr in his Eminent Domain Valuation and Procedure, states in Section 66: At the outset, we must bear in mind that when private property is acquired for public use under the power of eminent domain, just compensation must be paid to the owner. How is the just compensation determined ? That is the problem which we will discuss at some length. Dealing particularly with the question of valuation of Public Utilities, the author mentions the reasons why the principles of valuation in the case of acquisition of Public Utilities are sometimes different from those pertaining to the usual acquisitions. Then he proceeds to say that in estimating a just compensation of Utility property consideration must be given to two types of properties, the tangible properties and the intangible properties. Tangible property such as land may be valued at the market value while property like plant etc. may have to be valued on the basis of original cost, cost of permutation, allowance for depreciation etc. In the case of intangible property the author states that the Courts do not indicate the method used in reaching the intangible item of going concern value . and confesses that there probably is none . After remarking that valuation of a going concern based on capitalisation of net earnings assumes too many contingencies, the author refers to the case of Appleton Water Co. v. Railroad Commission [154 Wis. 121, 148, 142, N.W. 476, 47 L.R.A . (N.S.) 770], where the Court said that the fundamental difficulty with an attempt to set a definite sum as representing going concern value is that it is an attempt to divide a thing which is in its nature practically indivisible. The value of t he plant and business is an indivisible gross amountIt is thus clear from the very authorities cited by Shri Sen. that tangible and intangible property of a public utility undertaking, may not necessarily be valued separately and it is a sound principle to treat them as indivisible and value the undertaking as an integrated whole. The authorities also treat the capitalisation of net profit as one of the recognised principles of valuation of Public Utility Undertaking, though it may not be the best in the sense that it may not yield that result which is most advantageous t o the owner of the undertaking. But we are not concerned with the question which principle will yield the result most advantageous to the owner of the undertaking but with the question whether the particular principle is a relevant principle at all. In the language used in American Jurisprudence the principle of capitalisation of net income is unquestionably relevant even in the case of Public Utility Undertakings. In our view, it requires no authority to say that capitalisation of net income is a sound principle of valuation. Any purchaser will immediately put himself the question what profit does the undertaking make and how much should I invest to get the return ? He may pay more if the prospects of better income in the future are bright and if the plant, machinery and buildings are in excellent condition. He may pay less if the future is not so bright and if the plant, machinery and buildings are in a poor state and require immediate replacement and repair. He m ay pay more ll if the undertaking is possessed of substantial, unencumbered properties. He may pay less if the lease of the land on which the factory is located is about to expire. Thus the price may vary depending - on various factor s but the basic consideration is bound to be the profit yielding capacity of the undertaking. Shri Sen asserted that the lands belonging to the company which were purchased by way of investment, can fetch a price of Rupees six to seven crores. There is nothing in the petition to indicate that any lands were purchased by way of investments and not for the purpose of gas works or that the lands are capable of being sold independently of the undertaking. Perhaps, no one will come forward to purchase land next to a gas works. Perhaps there are other factors which make the land unsale able or which depreciate the value of the land. We do not know. Suffice it to say that the assertion of Shri Sen is not borne out by any st atement to that effect in the Writ Petition. Shri Sell suggested that the petitioner might be given an opportunity to amend the Writ Petition. We do not think we can do that. The acquisition was made in 1962. The impugned Act was passed in 1970. T he Writ Petition was filed in 1971 and has been pending in this Court for sever years. If there was any substance in the present assertion, the petitioner would surely have mentioned it prominently in the Writ Petition. It would not have taken the petitioner so many years to discover a circumstance claimed by his Counsel to be so very vital. We do not think we will be justified in permitting any amendment at this stage. The case of the petitioner right through has been that the principle of capitalisation of income was irrelevant. With that submission we emphatically do not agree.Shri Sens next submission was that the choice of the period of five years immediately preceding the take over of the management and control of the Company for the purpose of calculating the average annual income was arbitrary as those five years were particularly lean years for the Company because of some special circumstances. The charge of arbitrariness is baseless. The fiv e years immediately preceding the take over of the control and management of the Company were the years 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60 during which years the profits according to the balance sheets of the Company, were Rs. 15, 86, 789, Rs. 13, 81, 177, Rs. 7, 50, 582, Rs. 1, 64, 158 and Rs. 1, 82, 123/- respectively. Now, if the Legislature wanted to be unfair to the Company, the last years profit could have been taken as the criterion on the ground that the value to be ascertained wa s the value on the date of take over and not some hypothetical anterior date. Or, instead of taking the advantage of the period of the preceding five years, the Legislature could well have taken the average of the preceding three years. If that. We should not however be understood as having decided that A Section 9 (2) offends Article 31 (2) of the Constitution. Shri Chatterjee, learned Counsel for the State of West Bengal, argued that the earlier decision of the Calcutta High Court in the petition under Article 226 of the Constitution operated as res judicata.In the view that we have taken on the main question it is unnecessary to consider this argument except to say that there does not appear to be any substance in it. | 0 | 9,944 | 1,308 | ### Instruction:
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the plant. 20. We may also refer to Principles and Practice of Rating Valuation by Roger Emeny and Hector M, Wilks. At page 197 of the 3rd edn ., public utility undertakings are considered and it is said: Public Utility Undertakings were prior to 1950 valued by the profits method. This method was used because public utility undertakings were not generally speaking let, added to which they enjoyed some element of monopoly....insofar that there are public utility undertakings or quasi public utility undertakings which are not covered by a formula, and in the absence of rental evidence, it is probable that the profits method of valuation would be applicable. There is no shortage of case law to help the valuer when using the profits method for public utility undertaking. 21. It is thus clear from the very authorities cited by Shri Sen. that tangible and intangible property of a public utility undertaking, may not necessarily be valued separately and it is a sound principle to treat them as indivisible and value the undertaking as an integrated whole. The authorities also treat the capitalisation of net profit as one of the recognised principles of valuation of Public Utility Undertaking, though it may not be the best in the sense that it may not yield that result which is most advantageous t o the owner of the undertaking. But we are not concerned with the question which principle will yield the result most advantageous to the owner of the undertaking but with the question whether the particular principle is a relevant principle at all. In the language used in American Jurisprudence the principle of capitalisation of net income is unquestionably relevant even in the case of Public Utility Undertakings. In our view, it requires no authority to say that capitalisation of net income is a sound principle of valuation. Any purchaser will immediately put himself the question what profit does the undertaking make and how much should I invest to get the return ? He may pay more if the prospects of better income in the future are bright and if the plant, machinery and buildings are in excellent condition. He may pay less if the future is not so bright and if the plant, machinery and buildings are in a poor state and require immediate replacement and repair. He m ay pay more ll if the undertaking is possessed of substantial, unencumbered properties. He may pay less if the lease of the land on which the factory is located is about to expire. Thus the price may vary depending - on various factor s but the basic consideration is bound to be the profit yielding capacity of the undertaking. Shri Sen asserted that the lands belonging to the company which were purchased by way of investment, can fetch a price of Rupees six to seven crores. There is nothing in the petition to indicate that any lands were purchased by way of investments and not for the purpose of gas works or that the lands are capable of being sold independently of the undertaking. Perhaps, no one will come forward to purchase land next to a gas works. Perhaps there are other factors which make the land unsale able or which depreciate the value of the land. We do not know. Suffice it to say that the assertion of Shri Sen is not borne out by any st atement to that effect in the Writ Petition. Shri Sell suggested that the petitioner might be given an opportunity to amend the Writ Petition. We do not think we can do that. The acquisition was made in 1962. The impugned Act was passed in 1970. T he Writ Petition was filed in 1971 and has been pending in this Court for sever years. If there was any substance in the present assertion, the petitioner would surely have mentioned it prominently in the Writ Petition. It would not have taken the petitioner so many years to discover a circumstance claimed by his Counsel to be so very vital. We do not think we will be justified in permitting any amendment at this stage. The case of the petitioner right through has been that the principle of capitalisation of income was irrelevant. With that submission we emphatically do not agree.Shri Sens next submission was that the choice of the period of five years immediately preceding the take over of the management and control of the Company for the purpose of calculating the average annual income was arbitrary as those five years were particularly lean years for the Company because of some special circumstances. The charge of arbitrariness is baseless. The fiv e years immediately preceding the take over of the control and management of the Company were the years 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60 during which years the profits according to the balance sheets of the Company, were Rs. 15, 86, 789, Rs. 13, 81, 177, Rs. 7, 50, 582, Rs. 1, 64, 158 and Rs. 1, 82, 123/- respectively. Now, if the Legislature wanted to be unfair to the Company, the last years profit could have been taken as the criterion on the ground that the value to be ascertained wa s the value on the date of take over and not some hypothetical anterior date. Or, instead of taking the advantage of the period of the preceding five years, the Legislature could well have taken the average of the preceding three years. If that. We should not however be understood as having decided that A Section 9 (2) offends Article 31 (2) of the Constitution. Shri Chatterjee, learned Counsel for the State of West Bengal, argued that the earlier decision of the Calcutta High Court in the petition under Article 226 of the Constitution operated as res judicata. 22. In the view that we have taken on the main question it is unnecessary to consider this argument except to say that there does not appear to be any substance in it. 23.
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allowance for depreciation etc. In the case of intangible property the author states that the Courts do not indicate the method used in reaching the intangible item of going concern value . and confesses that there probably is none . After remarking that valuation of a going concern based on capitalisation of net earnings assumes too many contingencies, the author refers to the case of Appleton Water Co. v. Railroad Commission [154 Wis. 121, 148, 142, N.W. 476, 47 L.R.A . (N.S.) 770], where the Court said that the fundamental difficulty with an attempt to set a definite sum as representing going concern value is that it is an attempt to divide a thing which is in its nature practically indivisible. The value of t he plant and business is an indivisible gross amountIt is thus clear from the very authorities cited by Shri Sen. that tangible and intangible property of a public utility undertaking, may not necessarily be valued separately and it is a sound principle to treat them as indivisible and value the undertaking as an integrated whole. The authorities also treat the capitalisation of net profit as one of the recognised principles of valuation of Public Utility Undertaking, though it may not be the best in the sense that it may not yield that result which is most advantageous t o the owner of the undertaking. But we are not concerned with the question which principle will yield the result most advantageous to the owner of the undertaking but with the question whether the particular principle is a relevant principle at all. In the language used in American Jurisprudence the principle of capitalisation of net income is unquestionably relevant even in the case of Public Utility Undertakings. In our view, it requires no authority to say that capitalisation of net income is a sound principle of valuation. Any purchaser will immediately put himself the question what profit does the undertaking make and how much should I invest to get the return ? He may pay more if the prospects of better income in the future are bright and if the plant, machinery and buildings are in excellent condition. He may pay less if the future is not so bright and if the plant, machinery and buildings are in a poor state and require immediate replacement and repair. He m ay pay more ll if the undertaking is possessed of substantial, unencumbered properties. He may pay less if the lease of the land on which the factory is located is about to expire. Thus the price may vary depending - on various factor s but the basic consideration is bound to be the profit yielding capacity of the undertaking. Shri Sen asserted that the lands belonging to the company which were purchased by way of investment, can fetch a price of Rupees six to seven crores. There is nothing in the petition to indicate that any lands were purchased by way of investments and not for the purpose of gas works or that the lands are capable of being sold independently of the undertaking. Perhaps, no one will come forward to purchase land next to a gas works. Perhaps there are other factors which make the land unsale able or which depreciate the value of the land. We do not know. Suffice it to say that the assertion of Shri Sen is not borne out by any st atement to that effect in the Writ Petition. Shri Sell suggested that the petitioner might be given an opportunity to amend the Writ Petition. We do not think we can do that. The acquisition was made in 1962. The impugned Act was passed in 1970. T he Writ Petition was filed in 1971 and has been pending in this Court for sever years. If there was any substance in the present assertion, the petitioner would surely have mentioned it prominently in the Writ Petition. It would not have taken the petitioner so many years to discover a circumstance claimed by his Counsel to be so very vital. We do not think we will be justified in permitting any amendment at this stage. The case of the petitioner right through has been that the principle of capitalisation of income was irrelevant. With that submission we emphatically do not agree.Shri Sens next submission was that the choice of the period of five years immediately preceding the take over of the management and control of the Company for the purpose of calculating the average annual income was arbitrary as those five years were particularly lean years for the Company because of some special circumstances. The charge of arbitrariness is baseless. The fiv e years immediately preceding the take over of the control and management of the Company were the years 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60 during which years the profits according to the balance sheets of the Company, were Rs. 15, 86, 789, Rs. 13, 81, 177, Rs. 7, 50, 582, Rs. 1, 64, 158 and Rs. 1, 82, 123/- respectively. Now, if the Legislature wanted to be unfair to the Company, the last years profit could have been taken as the criterion on the ground that the value to be ascertained wa s the value on the date of take over and not some hypothetical anterior date. Or, instead of taking the advantage of the period of the preceding five years, the Legislature could well have taken the average of the preceding three years. If that. We should not however be understood as having decided that A Section 9 (2) offends Article 31 (2) of the Constitution. Shri Chatterjee, learned Counsel for the State of West Bengal, argued that the earlier decision of the Calcutta High Court in the petition under Article 226 of the Constitution operated as res judicata.In the view that we have taken on the main question it is unnecessary to consider this argument except to say that there does not appear to be any substance in it.
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Mohanlal Hargovind Dass Versus Ram Narain And Others, State Of Uttar Pradesh Versus Ram Narain And Others Vs. | Piarey and Ram Achal of the offence under S. 395 I.P.C. of which they were convicted by the Sessions Judge. 2. A detailed narrative of the prosecution story has been given in the judgment of the Sessions Judge and the High Court and it is not necessary for us to repeat the same all over again. Briefly put the allegation of the prosecution is that the Allahabad office of the Factory, a branch of which was situated in village Kareha had to disburse some payments to the contractors at Kareha in the District of Allahabad, which is about 25 to 30 miles away. Apart from Kareha there were other branches also where certain payments had also to be made. For this purpose on 1-11-1966, the Head Office at Allahabad sent a jeep carrying the driver Madho Ram P.W. 12 and the Accountant of the Factory Ramesh Chandra. P.W. 5, with a sum of Rupees 70, 000/- out of which Rs. 7, 000 was to be disbursed at the Kareha, Rupees 11, 000/- to be disbursed at Karma and other branches near about that place. The remaining amount of Rs. 52, 000/- was to be paid to the other branches situated across the Ganges. It appears from the evidence of Ramesh Chandra at p.44 of the paper book that other branches on the trans-Ganga where the money was to be disbursed did not lie on the way to Kareha but the jeep had to return to Allahabad for going to these villages for disbursing the amount. This fact is rather important because it introduced an element of an inherent improbability in the prosecution story. It is stated that when the jeep reached village Kareha, it was surrounded by the accused persons and one of the accused viz. Ram Narain snatched the bag from the hand of Ramesh Chandra and whipped out a pistol in order to scare away the crowd. Thereafter, the dacoits left on a horse back. The tyres of the jeep had been punctured before the dacoity took place. 3. The respondents pleaded innocence and denied their participation in the dacoity. 4. The learned Sessions Judge after considering the evidence came to the conclusion that the prosecution case was proved against the three respondents and convicted them as indicated above. Thereafter the accused respondents Ram Narain, Ram Piare and Ram Achal filed an appeal before the High Court of Allahabad against their conviction and the sentences imposed on them. The High Court after hearing the appeals, found that the prosecution case was not proved and accordingly acquitted the aforesaid respondents. Thereafter both the State as well as the complainant, filed application for special leave to appeal in this Court and after obtaining special leave the appeals have been placed before us. 5. We have gone through the judgment of the High Court and we find that the prosecution case is fraught with inherent improbabilities and it is difficult to accept that a dacoity of the kind suggested by the prosecution could ever take place. One of the important grounds taken by the High Court was that the accused Ram Narain was a very respectable person being in the employment of the factory and also a landlord of the premises where the factory was situated and was also a Sarpanch. In the circumstances, it would be difficult to believe that the Respondent Ram Narain would commit a daylight dacoity in the same village where the factory was situated at a distance of only 25 to 30 paces from the factory itself as to be identified at the spot. We are of the opinion that there is great substance in the argument of the High Court. Apart from this, there are other circumstances which militate against the prosecution version. According to the evidence of P.W. 5, Ramesh Chandra, it is clear that Kareha and the other branches where the money was to be disbursed are situated on two different sides of Allahabad. In this connection, the witness stated thus :-"After giving the amount to both the branches which are at Jamunapar one has to go Gangapar after coming back to Allahabad. Similarly from the branches which are at Gangapar, one has to go to Jamunapar after coming back to Allahabad. In view of the evidence of this witness, the position is that the party in the Jeep would have first to go to Kareha and Karma and then come back to Allahabad and thereafter proceed to the other villages where the branches on the trans-Ganges side were situated. In these circumstances, it would have been more practicable first to disburse the amount of Rs. 18, 000/- at Kareha and Karma and after the Jeep returned to Allahabad, the balance of Rs. 52, 000/- would have been given to P.W. 5 for disbursement to the branches situated in other villages across the Ganges. There was neither any occasion nor any necessity to send such a huge amount of Rs. 70, 000/- and that too without obtaining any armed escort or sending some more people duly armed to protect against any untoward incident Noting of this sort was done, In these circumstances, therefore, a serious doubt arises regarding the manner in which the incident is alleged to have taken place. Mr. Uniyal appearing for the State submitted that the reasons given by the High Court for rejecting the evidence of witnesses are not well grounded. It is true that we may not be in a position to agree with some of the reasons given by the High Court but on a general survey of the prosecution case and perusal of the evidence, we are not in a position to hold that the view taken by the High Court was not reasonably possible, or that the judgment of the High Court was in any way perverse. It may be that on the evidence we might have taken a different view but that does not justify the reversal of the order of the High Court. | 0[ds]In view of the evidence of this witness, the position is that the party in the Jeep would have first to go to Kareha and Karma and then come back to Allahabad and thereafter proceed to the other villages where the branches on thes side were situated. In these circumstances, it would have been more practicable first to disburse the amount of Rs. 18, 000/at Kareha and Karma and after the Jeep returned to Allahabad, the balance of Rs. 52, 000/would have been given to P.W. 5 for disbursement to the branches situated in other villages across the Ganges. There was neither any occasion nor any necessity to send such a huge amount of Rs. 70, 000/and that too without obtaining any armed escort or sending some more people duly armed to protect against any untoward incident Noting of this sort was done, In these circumstances, therefore, a serious doubt arises regarding the manner in which the incident is alleged to have taken place. Mr. Uniyal appearing for the State submitted that the reasons given by the High Court for rejecting the evidence of witnesses are not well grounded. It is true that we may not be in a position to agree with some of the reasons given by the High Court but on a general survey of the prosecution case and perusal of the evidence, we are not in a position to hold that the view taken by the High Court was not reasonably possible, or that the judgment of the High Court was in any way perverse. It may be that on the evidence we might have taken a different view but that does not justify the reversal of the order of the High Court. | 0 | 1,109 | 312 | ### Instruction:
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Piarey and Ram Achal of the offence under S. 395 I.P.C. of which they were convicted by the Sessions Judge. 2. A detailed narrative of the prosecution story has been given in the judgment of the Sessions Judge and the High Court and it is not necessary for us to repeat the same all over again. Briefly put the allegation of the prosecution is that the Allahabad office of the Factory, a branch of which was situated in village Kareha had to disburse some payments to the contractors at Kareha in the District of Allahabad, which is about 25 to 30 miles away. Apart from Kareha there were other branches also where certain payments had also to be made. For this purpose on 1-11-1966, the Head Office at Allahabad sent a jeep carrying the driver Madho Ram P.W. 12 and the Accountant of the Factory Ramesh Chandra. P.W. 5, with a sum of Rupees 70, 000/- out of which Rs. 7, 000 was to be disbursed at the Kareha, Rupees 11, 000/- to be disbursed at Karma and other branches near about that place. The remaining amount of Rs. 52, 000/- was to be paid to the other branches situated across the Ganges. It appears from the evidence of Ramesh Chandra at p.44 of the paper book that other branches on the trans-Ganga where the money was to be disbursed did not lie on the way to Kareha but the jeep had to return to Allahabad for going to these villages for disbursing the amount. This fact is rather important because it introduced an element of an inherent improbability in the prosecution story. It is stated that when the jeep reached village Kareha, it was surrounded by the accused persons and one of the accused viz. Ram Narain snatched the bag from the hand of Ramesh Chandra and whipped out a pistol in order to scare away the crowd. Thereafter, the dacoits left on a horse back. The tyres of the jeep had been punctured before the dacoity took place. 3. The respondents pleaded innocence and denied their participation in the dacoity. 4. The learned Sessions Judge after considering the evidence came to the conclusion that the prosecution case was proved against the three respondents and convicted them as indicated above. Thereafter the accused respondents Ram Narain, Ram Piare and Ram Achal filed an appeal before the High Court of Allahabad against their conviction and the sentences imposed on them. The High Court after hearing the appeals, found that the prosecution case was not proved and accordingly acquitted the aforesaid respondents. Thereafter both the State as well as the complainant, filed application for special leave to appeal in this Court and after obtaining special leave the appeals have been placed before us. 5. We have gone through the judgment of the High Court and we find that the prosecution case is fraught with inherent improbabilities and it is difficult to accept that a dacoity of the kind suggested by the prosecution could ever take place. One of the important grounds taken by the High Court was that the accused Ram Narain was a very respectable person being in the employment of the factory and also a landlord of the premises where the factory was situated and was also a Sarpanch. In the circumstances, it would be difficult to believe that the Respondent Ram Narain would commit a daylight dacoity in the same village where the factory was situated at a distance of only 25 to 30 paces from the factory itself as to be identified at the spot. We are of the opinion that there is great substance in the argument of the High Court. Apart from this, there are other circumstances which militate against the prosecution version. According to the evidence of P.W. 5, Ramesh Chandra, it is clear that Kareha and the other branches where the money was to be disbursed are situated on two different sides of Allahabad. In this connection, the witness stated thus :-"After giving the amount to both the branches which are at Jamunapar one has to go Gangapar after coming back to Allahabad. Similarly from the branches which are at Gangapar, one has to go to Jamunapar after coming back to Allahabad. In view of the evidence of this witness, the position is that the party in the Jeep would have first to go to Kareha and Karma and then come back to Allahabad and thereafter proceed to the other villages where the branches on the trans-Ganges side were situated. In these circumstances, it would have been more practicable first to disburse the amount of Rs. 18, 000/- at Kareha and Karma and after the Jeep returned to Allahabad, the balance of Rs. 52, 000/- would have been given to P.W. 5 for disbursement to the branches situated in other villages across the Ganges. There was neither any occasion nor any necessity to send such a huge amount of Rs. 70, 000/- and that too without obtaining any armed escort or sending some more people duly armed to protect against any untoward incident Noting of this sort was done, In these circumstances, therefore, a serious doubt arises regarding the manner in which the incident is alleged to have taken place. Mr. Uniyal appearing for the State submitted that the reasons given by the High Court for rejecting the evidence of witnesses are not well grounded. It is true that we may not be in a position to agree with some of the reasons given by the High Court but on a general survey of the prosecution case and perusal of the evidence, we are not in a position to hold that the view taken by the High Court was not reasonably possible, or that the judgment of the High Court was in any way perverse. It may be that on the evidence we might have taken a different view but that does not justify the reversal of the order of the High Court.
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In view of the evidence of this witness, the position is that the party in the Jeep would have first to go to Kareha and Karma and then come back to Allahabad and thereafter proceed to the other villages where the branches on thes side were situated. In these circumstances, it would have been more practicable first to disburse the amount of Rs. 18, 000/at Kareha and Karma and after the Jeep returned to Allahabad, the balance of Rs. 52, 000/would have been given to P.W. 5 for disbursement to the branches situated in other villages across the Ganges. There was neither any occasion nor any necessity to send such a huge amount of Rs. 70, 000/and that too without obtaining any armed escort or sending some more people duly armed to protect against any untoward incident Noting of this sort was done, In these circumstances, therefore, a serious doubt arises regarding the manner in which the incident is alleged to have taken place. Mr. Uniyal appearing for the State submitted that the reasons given by the High Court for rejecting the evidence of witnesses are not well grounded. It is true that we may not be in a position to agree with some of the reasons given by the High Court but on a general survey of the prosecution case and perusal of the evidence, we are not in a position to hold that the view taken by the High Court was not reasonably possible, or that the judgment of the High Court was in any way perverse. It may be that on the evidence we might have taken a different view but that does not justify the reversal of the order of the High Court.
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Moumita Podder Vs. Indian Oil Corporation Ltd | life of law is not logic but experience. By pointing out the error which according to us crept into the High Courts judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136. In approaching the matter this way we are not charting a new course but follow the precedents of repute. In Punjab Beverages (P) Ltd., Chandigarh v. Suresh Chand, this Court held that the order of dismissal made by the appellant in that case in contravention of Section 33(2)(b) of the Industrial Disputes Act did not render the order void and inoperative, yet this Court did not set aside the order of the lower court directing payment of wages under Section 33(2)(c) and affirmed that part of the order. While recording this conclusion this Court observed that in exercise of the extraordinary jurisdiction this Court was not bound to set aside every order found not in conformity or in consonance with the law unless the justice of the case so requires. The Court further observed that demands of social justice are paramount while dealing with the industrial disputes and, therefore, even though the lower court was not right in allowing the application of the respondent, the Court declined to exercise its overriding jurisdiction under Article 136 to set aside the order of the Labour Court directing the appellant to pay certain amount to the workers. Following this trend in State of M.P. v. Ram Ratan, this Court while holding that the High Court was in error in directing reinstatement of the respondent in service, took note of the fact that by passage of time the respondent superannuated. The Court paid him back wages till the day of superannuation in the round sum of Rs.10,000. In other words, while formally setting aside the order of the High Court directing reinstatement, treated the respondent in that case in service and paid him back wages because physical reinstatement on account of passage of time was not possible. From the academics point of view the later decision is the subject-matter of adverse comment but we feel reasonably certain that it stems from narrow constricted view of the jurisdiction of the Court under Article 136. We adhere to our view after meticulously examining the learned comment. Having noted that criticism, we still adhere to the view that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal Court of appeal which it is not." These observations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties. 35. The aforesaid observations were reiterated in the case of Taherakhatoon (supra): "19. We may in this connection also refer to Municipal Board, Pratabgarh v. Mahendra Singh Chawla9 wherein it was observed that in such cases, after declaring the correct legal position, this Court might still say that it would not exercise discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and "mould the final order." 36. In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2. | 0[ds]22. We have considered the submissions made by the learned counsel for the parties. We have also perused the relevant clauses of the policy circular dated 4.9.2003 and the brochure dated 1.11.2004. The public notice dated 19.2.2004 stipulated that the candidate should furnish along with application, details of land, which she may make available for the retail outlet. This condition was certainly fulfilled by respondent No.2. She had given the details of the land. No document was required to be attached. Clause (b) of the important note stated that applicants already having land and willing to transfer the land on ownership/long lease to respondent No.1 would be given preference. It appears to us from the facts noticed above that neither the appellant nor respondent No.2 would have been eligible for any preference. Whilst the appellant had offered the undertakings given by her mother-in-law and father in law to make the land available on lease, respondent No.2 was only in possession of a lease, which contained a negative covenant. Therefore, the candidature of both the appellant as well as respondent No.2 could only be considered under the category that they were prepared to make the site available.Both the appellant as well as respondent No.2 were assessed on the basis of the aforesaid criteria and secured 25 marks each out of a total of 35 marks. From the record, it appears that on the date of the application, respondent No.2 would not fall under the category of land owner. She was, however, a lease holder, but was unable to create a sub lease, in view of the negative covenant contained in Clause 4 of the lease deed dated 18.3.2004. Furthermore in the application, she did not make available any other material to show that she could make the land available. She, however, claims to have produced the supplementary lease deed dated 18.3.2004, at the time of the interview. But there appears to be no material on the record to indicate that it was actually produced before the Interview Board. Even at the time of hearing, no material was produced before us by any of the respondents to show that it was actually produced before the Interview Board. In such circumstances, the learned Single Judge, in our opinion, correctly observed that the lease deed dated 18.3.2004 was perhaps not produced before the Interview Committee.26. We, however, find that the Single Judge has unnecessarily jumped to the conclusion that it was not a genuine document. It had been duly notarized, therefore, it could not be said to be a fake document in the absence of any other material. In our opinion, the Division Bench has correctly accepted the genuineness of the document. Non-registration of lease as required under Section 107 of the Transfer of Property Act, 1882, may affect the legal rights of the parties inter se. But here Respondent No.2 is not seeking to enforce any such rights. She merely offered the lease deed as proof of her "capability to provide land" for being used by Respondent No.1 as a Retail Outlet Dealership. By virtue of Important Note (c) of the Public Notice dated 19.2.2004, respondent No.2 could make the land available within two months of the issue of Letter of Intent, which was issued on 8.7.2004. This, however, will not change the legal position. Even if the second lease deed is genuine, the same was not available before the interview board. No material was placed before this court to show that the document was in fact available at the time when the interview was conducted. Therefore, she could not have been allotted any marks, for her capability to provide land, in view of the negative covenant contained in the lease deed datedthe absence of the lease deed dated 18.3.2004, the Interview Committee had no material before it, to award any marks to respondent No.2, against the column "capability to provideare of the considered opinion, that in the peculiar facts of this case, the learned Single Judge adopted a very pedantic and doctrinaire approach to a problem which in fact, had to be viewed pragmatically. The Learned Single Judge not only failed to take note of the ground realities, but ignored the relevant clauses of the policy circular dated 4th of September, 2003. Under the aforesaid Circular, upon the selection and appointment of respondent No.2 being declared illegal, the entire selection could not have been held to be vitiated. In such circumstances, the Letter of Intent would be issued to the next candidate in the panel of three, in terms of Clause 5.4. This Clause specifically provides that if the letter of intent is cancelled for any reason, it will be given to the next candidate in the merit list. In this case, even such an eventuality would not have arisen, as the candidates at Nos.2 and 3 were not the writ petitioners before the High court. Therefore, in our opinion, the learned Single Judge needlessly set aside the entire selection. At the same time the Division Bench also committed an error of law, in upholding the selection of respondent No.2.31. In view of our findings recorded above, the normal order would be to set aside the impugned judgment of the Division Bench. Further direction would have been to offer the dealership to the next candidate on the panel of three. But these candidates have shown no interest in theseour opinion, the aforesaid judgment was rendered under some very peculiar and exceptional circumstances. It was a case where allotment of retail outlets or petroleum products had been made by a Minister in violation of all norms while exercising his discretionary powers for making the allotments. These allotments had been made in the absence of anyabove observations make it abundantly clear that this Court was dealing with a situation where the concerned Minister had bestowed undue favour on the appellants in that case. Such is not a situation in the present case. Therefore, the aforesaid observations would be of little assistance to the appellant herein.32. The facts and circumstances of this case are not such where this court would be reluctant to come to the aid of a selected candidate, against whom there are no allegations of manipulation or any undue favour having been shown to her. In our opinion, this is not a case of such an exceptional nature where equitable considerations would be impermissible. The peculiar facts of this case are such that it would be appropriate for the Court to take into consideration the subsequent events, in order to do complete justice between theobservations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties.In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2. | 0 | 10,166 | 1,611 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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life of law is not logic but experience. By pointing out the error which according to us crept into the High Courts judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136. In approaching the matter this way we are not charting a new course but follow the precedents of repute. In Punjab Beverages (P) Ltd., Chandigarh v. Suresh Chand, this Court held that the order of dismissal made by the appellant in that case in contravention of Section 33(2)(b) of the Industrial Disputes Act did not render the order void and inoperative, yet this Court did not set aside the order of the lower court directing payment of wages under Section 33(2)(c) and affirmed that part of the order. While recording this conclusion this Court observed that in exercise of the extraordinary jurisdiction this Court was not bound to set aside every order found not in conformity or in consonance with the law unless the justice of the case so requires. The Court further observed that demands of social justice are paramount while dealing with the industrial disputes and, therefore, even though the lower court was not right in allowing the application of the respondent, the Court declined to exercise its overriding jurisdiction under Article 136 to set aside the order of the Labour Court directing the appellant to pay certain amount to the workers. Following this trend in State of M.P. v. Ram Ratan, this Court while holding that the High Court was in error in directing reinstatement of the respondent in service, took note of the fact that by passage of time the respondent superannuated. The Court paid him back wages till the day of superannuation in the round sum of Rs.10,000. In other words, while formally setting aside the order of the High Court directing reinstatement, treated the respondent in that case in service and paid him back wages because physical reinstatement on account of passage of time was not possible. From the academics point of view the later decision is the subject-matter of adverse comment but we feel reasonably certain that it stems from narrow constricted view of the jurisdiction of the Court under Article 136. We adhere to our view after meticulously examining the learned comment. Having noted that criticism, we still adhere to the view that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal Court of appeal which it is not." These observations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties. 35. The aforesaid observations were reiterated in the case of Taherakhatoon (supra): "19. We may in this connection also refer to Municipal Board, Pratabgarh v. Mahendra Singh Chawla9 wherein it was observed that in such cases, after declaring the correct legal position, this Court might still say that it would not exercise discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and "mould the final order." 36. In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2.
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se. But here Respondent No.2 is not seeking to enforce any such rights. She merely offered the lease deed as proof of her "capability to provide land" for being used by Respondent No.1 as a Retail Outlet Dealership. By virtue of Important Note (c) of the Public Notice dated 19.2.2004, respondent No.2 could make the land available within two months of the issue of Letter of Intent, which was issued on 8.7.2004. This, however, will not change the legal position. Even if the second lease deed is genuine, the same was not available before the interview board. No material was placed before this court to show that the document was in fact available at the time when the interview was conducted. Therefore, she could not have been allotted any marks, for her capability to provide land, in view of the negative covenant contained in the lease deed datedthe absence of the lease deed dated 18.3.2004, the Interview Committee had no material before it, to award any marks to respondent No.2, against the column "capability to provideare of the considered opinion, that in the peculiar facts of this case, the learned Single Judge adopted a very pedantic and doctrinaire approach to a problem which in fact, had to be viewed pragmatically. The Learned Single Judge not only failed to take note of the ground realities, but ignored the relevant clauses of the policy circular dated 4th of September, 2003. Under the aforesaid Circular, upon the selection and appointment of respondent No.2 being declared illegal, the entire selection could not have been held to be vitiated. In such circumstances, the Letter of Intent would be issued to the next candidate in the panel of three, in terms of Clause 5.4. This Clause specifically provides that if the letter of intent is cancelled for any reason, it will be given to the next candidate in the merit list. In this case, even such an eventuality would not have arisen, as the candidates at Nos.2 and 3 were not the writ petitioners before the High court. Therefore, in our opinion, the learned Single Judge needlessly set aside the entire selection. At the same time the Division Bench also committed an error of law, in upholding the selection of respondent No.2.31. In view of our findings recorded above, the normal order would be to set aside the impugned judgment of the Division Bench. Further direction would have been to offer the dealership to the next candidate on the panel of three. But these candidates have shown no interest in theseour opinion, the aforesaid judgment was rendered under some very peculiar and exceptional circumstances. It was a case where allotment of retail outlets or petroleum products had been made by a Minister in violation of all norms while exercising his discretionary powers for making the allotments. These allotments had been made in the absence of anyabove observations make it abundantly clear that this Court was dealing with a situation where the concerned Minister had bestowed undue favour on the appellants in that case. Such is not a situation in the present case. Therefore, the aforesaid observations would be of little assistance to the appellant herein.32. The facts and circumstances of this case are not such where this court would be reluctant to come to the aid of a selected candidate, against whom there are no allegations of manipulation or any undue favour having been shown to her. In our opinion, this is not a case of such an exceptional nature where equitable considerations would be impermissible. The peculiar facts of this case are such that it would be appropriate for the Court to take into consideration the subsequent events, in order to do complete justice between theobservations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties.In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2.
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STATE BANK OF INDIA Vs. MOHAMMAD BADRUDDIN | service would be in realm of conjectures as to whether punishment of removal would be sustainable on charge No. 4 alone. The judgment referred to is only in respect of punishment which is the second stage after recording of finding of the guilt. In the present case, the pre-requisite condition of communicating reasons of disagreement has not been complied with, which is leading to finding of guilt. Therefore, the judgment is not applicable to the facts of the present case. 27. In P .D. Agrawals case, the delinquent was in appeal against an order whereby the action against the delinquent was maintained. This Court in P .D. Agrawals case held as under: 50. We are, therefore, of the opinion that charge 2 being severable, this Court can proceed on the basis that the charges against the appellant in respect of charge 2 were not proved. xx xx xx 54. For the reasons aforementioned, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution. This appeal is, therefore, dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. 28. In the present case, the High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. This Court has not found reasons to set aside the order of punishment whereas in a case where order of punishment has been set aside, the principles of natural justice would warrant that the matter is remitted back to the Disciplinary Authority to consider whether the removal of the delinquent on the basis of charge No. 4 alone can be sustained or not. 29. In view of the said judgment, the findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. In fact, the argument of Mr. Vishwanathan is that charge No. 4 alone is sufficient to maintain the order of punishment of removal from service. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that the charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent. 30. It is admitted that the delinquent has attained the age of superannuation. Though, the parties are at variance on the date of superannuation but the fact remains that in view of the finding on charge No. 4 proved against the delinquent to which there was no disagreement, we find that the order of the High Court granting consequential benefits to the delinquent is not justified. However, the question required to be examined is what are the options available at this stage. 31. In B. Karunakar case, the Constitution Bench examined the question as to what should be the order if the principle of natural justice has not been applied with and the order of punishment stands vitiated on that account. The Court held that if the order of punishment stands vitiated, the proper relief is to direct reinstatement with liberty to the management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question of back wages and other benefits should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending upon the final outcome. The Court held as under: 31. …….It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. 32. Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate. | 1[ds]18. A perusal of such omitted provisions would show that an opportunity was required to be given to submit a representation on penalty proposed but such requirement had been omitted by 42 nd Constitutional Amendment.20. In K. Manche Gowdas case, the Inquiry Officer recommended that the delinquent may be reduced in rank. But while serving show cause notice after the report of the Inquiry Officer, the Disciplinary Authority proposed punishment of dismissal from service. The order of punishment considered the previous punishments imposed upon the delinquent to come to the conclusion that the delinquent is unfit to continue in Government service and, therefore, he was ordered to be dismissed from service. It was, in these circumstances, the Court ordered that the past conduct can be taken into consideration during the second stage of inquiry, which essentially relates more to the domain of punishment rather than to that of guilt. An opportunity should be given to the delinquent to know that fact and meet the same21. The omission of the words from clause (2) of Article 311 of the Constitution reproduced above completely changes the requirement of serving notice in respect of the proposed punishment. The amended provisions of Article 311 of the Constitution of India have been considered in Mohd. Ramzans case and later in B. Karunakars case. The judgment of this Court in Nicholas Piramal India Limited arises out of an Award passed by the Labour Court under the Industrial Disputes Act, 1947. The jurisdiction of the Labour Court is much wider where the punishment can be reviewed by the Labour Court in terms of Section 11-A of the said Act23. Thus, the requirement of second show cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the Inquiry Officers report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to 42 nd Amendment24. The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42 nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material againstthe delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the non-communication of the previous punishments in the show cause notice will not vitiate the punishment imposed26. The judgment of this Court in Bidyabhushan Mohapatras case is not applicable to the facts of the present case as in the aforesaid case, the High Court has held that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated because it had failed to observe the rules of natural justice. In the present case, the delinquent has not been apprised of reasons of disagreement which were required to be communicated to the delinquent in view of the judgment of this Court in Kunj Behari Misras case prior to the stage of imposing punishment. Since the reasons of disagreement were not communicated, the order of removal from service would be in realm of conjectures as to whether punishment of removal would be sustainable on charge No. 4 alone. The judgment referred to is only in respect of punishment which is the second stage after recording of finding of the guilt. In the present case, the pre-requisite condition of communicating reasons of disagreement has not been complied with, which is leading to finding of guilt. Therefore, the judgment is not applicable to the facts of the present case28. In the present case, the High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. This Court has not found reasons to set aside the order of punishment whereas in a case where order of punishment has been set aside, the principles of natural justice would warrant that the matter is remitted back to the Disciplinary Authority to consider whether the removal of the delinquent on the basis of charge No. 4 alone can be sustained or not29. In view of the said judgment, the findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. In fact, the argument of Mr. Vishwanathan is that charge No. 4 alone is sufficient to maintain the order of punishment of removal from service. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that the charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent30. It is admitted that the delinquent has attained the age of superannuation. Though, the parties are at variance on the date of superannuation but the fact remains that in view of the finding on charge No. 4 proved against the delinquent to which there was no disagreement, we find that the order of the High Court granting consequential benefits to the delinquent is not justified. However, the question required to be examined is what are the options available at this stage32. Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate. | 1 | 6,143 | 1,150 | ### Instruction:
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service would be in realm of conjectures as to whether punishment of removal would be sustainable on charge No. 4 alone. The judgment referred to is only in respect of punishment which is the second stage after recording of finding of the guilt. In the present case, the pre-requisite condition of communicating reasons of disagreement has not been complied with, which is leading to finding of guilt. Therefore, the judgment is not applicable to the facts of the present case. 27. In P .D. Agrawals case, the delinquent was in appeal against an order whereby the action against the delinquent was maintained. This Court in P .D. Agrawals case held as under: 50. We are, therefore, of the opinion that charge 2 being severable, this Court can proceed on the basis that the charges against the appellant in respect of charge 2 were not proved. xx xx xx 54. For the reasons aforementioned, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution. This appeal is, therefore, dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. 28. In the present case, the High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. This Court has not found reasons to set aside the order of punishment whereas in a case where order of punishment has been set aside, the principles of natural justice would warrant that the matter is remitted back to the Disciplinary Authority to consider whether the removal of the delinquent on the basis of charge No. 4 alone can be sustained or not. 29. In view of the said judgment, the findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. In fact, the argument of Mr. Vishwanathan is that charge No. 4 alone is sufficient to maintain the order of punishment of removal from service. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that the charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent. 30. It is admitted that the delinquent has attained the age of superannuation. Though, the parties are at variance on the date of superannuation but the fact remains that in view of the finding on charge No. 4 proved against the delinquent to which there was no disagreement, we find that the order of the High Court granting consequential benefits to the delinquent is not justified. However, the question required to be examined is what are the options available at this stage. 31. In B. Karunakar case, the Constitution Bench examined the question as to what should be the order if the principle of natural justice has not been applied with and the order of punishment stands vitiated on that account. The Court held that if the order of punishment stands vitiated, the proper relief is to direct reinstatement with liberty to the management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question of back wages and other benefits should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending upon the final outcome. The Court held as under: 31. …….It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. 32. Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate.
### Response:
1
### Explanation:
But while serving show cause notice after the report of the Inquiry Officer, the Disciplinary Authority proposed punishment of dismissal from service. The order of punishment considered the previous punishments imposed upon the delinquent to come to the conclusion that the delinquent is unfit to continue in Government service and, therefore, he was ordered to be dismissed from service. It was, in these circumstances, the Court ordered that the past conduct can be taken into consideration during the second stage of inquiry, which essentially relates more to the domain of punishment rather than to that of guilt. An opportunity should be given to the delinquent to know that fact and meet the same21. The omission of the words from clause (2) of Article 311 of the Constitution reproduced above completely changes the requirement of serving notice in respect of the proposed punishment. The amended provisions of Article 311 of the Constitution of India have been considered in Mohd. Ramzans case and later in B. Karunakars case. The judgment of this Court in Nicholas Piramal India Limited arises out of an Award passed by the Labour Court under the Industrial Disputes Act, 1947. The jurisdiction of the Labour Court is much wider where the punishment can be reviewed by the Labour Court in terms of Section 11-A of the said Act23. Thus, the requirement of second show cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the Inquiry Officers report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to 42 nd Amendment24. The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42 nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material againstthe delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the non-communication of the previous punishments in the show cause notice will not vitiate the punishment imposed26. The judgment of this Court in Bidyabhushan Mohapatras case is not applicable to the facts of the present case as in the aforesaid case, the High Court has held that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated because it had failed to observe the rules of natural justice. In the present case, the delinquent has not been apprised of reasons of disagreement which were required to be communicated to the delinquent in view of the judgment of this Court in Kunj Behari Misras case prior to the stage of imposing punishment. Since the reasons of disagreement were not communicated, the order of removal from service would be in realm of conjectures as to whether punishment of removal would be sustainable on charge No. 4 alone. The judgment referred to is only in respect of punishment which is the second stage after recording of finding of the guilt. In the present case, the pre-requisite condition of communicating reasons of disagreement has not been complied with, which is leading to finding of guilt. Therefore, the judgment is not applicable to the facts of the present case28. In the present case, the High Court has set aside the order of punishment on the ground that it violates the principle of natural justice. This Court has not found reasons to set aside the order of punishment whereas in a case where order of punishment has been set aside, the principles of natural justice would warrant that the matter is remitted back to the Disciplinary Authority to consider whether the removal of the delinquent on the basis of charge No. 4 alone can be sustained or not29. In view of the said judgment, the findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of charge Nos. 1 and 5 cannot be faulted with. In fact, the argument of Mr. Vishwanathan is that charge No. 4 alone is sufficient to maintain the order of punishment of removal from service. Though, charge No. 4 may be sufficient to inflict punishment but it is not necessary that the charge No. 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on charge No. 4 itself. It is for the Disciplinary Authority to inflict punishment as it may consider appropriate after finding the charge No. 4 proved against the delinquent30. It is admitted that the delinquent has attained the age of superannuation. Though, the parties are at variance on the date of superannuation but the fact remains that in view of the finding on charge No. 4 proved against the delinquent to which there was no disagreement, we find that the order of the High Court granting consequential benefits to the delinquent is not justified. However, the question required to be examined is what are the options available at this stage32. Since the delinquent has attained the age of superannuation, there cannot be any order of reinstatement or of suspension. In view thereof, the order of punishment dated November 4, 1993 as also the order of the Appellate Authority are set aside and the matter is remanded back to the Disciplinary Authority to consider as to whether it would like to record reasons of disagreement on charge Nos. 1 and 5 and/or impose punishment on the basis of charge No. 4 with which there is no disagreement, as it may consider appropriate.
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State Of Bombay Vs. M/S. Jagmohandas And Another | It is apparent that the dealer cannot apply for refund under S. 13 till an order of assessment is passed. The prescribed form also shows the same thing. The scheme of s. 13 appears to be that the Sales Tax Officer would make first an order of assessment, arrive at the amount of tax due according to the order and then work out the excess, if any, paid by the dealer and refund that money. It seems to us that S. 13 does not contemplate objections being entertained regarding the constitutional validity of any payment made by the dealer. The Solicitor-General contended that an appeal would lie against an order made under s. 13. Assuming that it is so, the appeal would be only on the ground that the computation made by the Sales Tax Officer is erroneous and not on the ground that the tax paid by the dealer was not constitutionally payable at all, under the Act. Therefore, if S. 13 is understood in the manner mentioned above, it seems clear to us that no machinery is provided in S. 13 for dealing with the objection that the money paid was paid by virtue of a void provision of the Act.8. Further, we have held in K. S. Venkataraman v. State of Madras, Civil Appeal No. 618 of 1963, dated 18-10-1965; (reported in AIR 1966 SC 1089 ) that the Sales Tax Authorities created by the Madras General Sales Tax Act are not competent to entertain questions as to the ultra vires of a provision of the Act. Similarly the Commissioner appointed under the Bombay Sales Tax Act would not be competent to go into the question whether S. 6 of the Act under which the transactions were apparently taxable was ultra vires or not.9. Therefore, in our opinion, S. 13 of the Act does not create an implied bar and the High Court is right in holding that the suit was competent.10. This Court has recently held that Art. 96 applies to suits like the present. (See Civil Appeal No. 720 of 1963 (SC), State of Kerala v. Aluminium Industries Ltd., Kunda, dated 21-4-1965).11. The only point that remains is regarding the date of the knowledge of the plaintiff. Both Courts below have found that the plaintiff came to know of the mistake on December 22, 1952, the date of the promulgation of Governors ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact.12. Accordingly, agreeing with the High Court, we hold that the suit is not barred. In the result the appeals fail and are dismissed with costs. One hearing fee.13. Shah, J.(With Ramaswami, J.)These appeals arise out of suits filed by the two respondents for recovery of sums of money paid by them as advanced sales-tax under a mistake of law. The suits were decreed by the Court of First Instance and the decisions were confirmed in appeals by the High Court of Judicature at Bombay.14. There were no orders of assessment made by the taxing authorities, but the taxpayers being of the view that the tax on their turnover was payable submitted returns under the Bombay Sales Tax Act, 1946 and paid advanced tax. The sales were in respect of goods consigned to purchasers outside the State of Bombay and for consumption outside the State. These sales were apparently covered by the terms of Art. 286 (1) (a) before it was amended by the Sixth Amendment Act and could not be taxed under a statute enacted by a State. The taxpayers claimed that they had discovered their mistake when the Governor of Bombay promulgated Bombay Ordinance No. 2 of 1952 after the decision of the Bombay High Court in the United Motors (India) Ltd. v. The State of Bombay, (1953) 55 Bom LR 246. The Trial Court and the High Court have rejected the contention raised by the State that the suits were barred by Ss. 13 and 20 of the Bombay Sales tax Act, 1946, which were later replaced by Ss. 19 and 29 of the Bombay Sales tax Act, 1952, and that the suits were barred by the law of limitation.15. We agree with the judgment of our brother Sikri, J., that the suits were not barred either expressly by the provisions of S. 20 or impliedly by S. 13 of the Bombay Sales Tax Act, 1946. We also, agree with him that the suits were not barred by the law of limitation, since the suits were filed within the period prescribed by Art. 96 of the 1st Schedule of the Limitation Act 1908, i.e., within three years from the date on which the mistake became known to the taxpayers. We are unable, however, to agree with the observation that before the sales-tax authorities an objection that certain parts of the statute were ultra vires the Legislature could not be raised. As held by this Court in C. A. 481 of 1968, dated 23-4-1965: (reported in AIR 1965 SC 1942 ) the question whether a transaction which falls within the Explanation of Art. 286 (1) (a) before it was amended by the Constitution (Sixth Amendment) Act does not affect the jurisdiction of the taxing authority is merely a question of interpretation of the contract in the light of the statute and the sales-tax authorities are entitled to entertain the objection, if it be raised before them,. that the transaction was not taxable because the State had no power to legislate in respect of an Explanation sale. But in this case, that stage was never reached. The taxpayers in the belief that they were liable to pay tax paid advance tax before any orders of assessment were made. Thereafter realising that they had committed a mistake filed suits refund. Thereby they were seeking to obtain orders of refund of payments made under a mistake of law; they were not seeking to set aside any order of assessment. | 0[ds]We are unable to appreciate how S. 20 expressly bars the suit. It is admitted that no assessment has been made under the Act and the plaintiff has not in his suit called into question any assessment or order made under the Act. In our opinion, this part of the argument is covered by the decision of this Court in the Tripura case, 1951 SCR 1(AIR 1951 SC 23) and the High Court was right in sojudgment of Fazl Ali, J., who dissented in the Tripura case, clearly shows that the Court was fully aware of the existence of the machinery in the Act enabling an assessee to challenge an eventual assessment. But this Court, in spite of the existence of that machinery gave effect of the plain words of S. 65 of the Bengal Agricultural Income-tax Act, 1944. There is nothing in the Kamla Mills case, (1965) 16 STC 613 : (AIR 1965 SC 1942 ) which is inconsistent with the Tripura case, 1951 SCR 1: (AIR 1951 SC 23 ). Further Mr. Pathak, learned counsel for the respondent, pointed out that a section similar to S. 13 existed in the Bengal Agricultural Income-tax Act,are unable to read the word assessment in S. 20 to include a mere filing of return and payment by a registered dealer. In our opinion, the word assessment has reference to assessments made under Ss. 11 and 11-A of the Bombay Sales Tax Act, 1946.Therefore, we must overrule the contention of the learned Solicitor-General that S. 20 expressly bars the presentseems to us that S. 13 does not contemplate objections being entertained regarding the constitutional validity of any payment made by the dealer. The Solicitor-General contended that an appeal would lie against an order made under s. 13. Assuming that it is so, the appeal would be only on the ground that the computation made by the Sales Tax Officer is erroneous and not on the ground that the tax paid by the dealer was not constitutionally payable at all, under the Act. Therefore, if S. 13 is understood in the manner mentioned above, it seems clear to us that no machinery is provided in S. 13 for dealing with the objection that the money paid was paid by virtue of a void provision of the Act.Therefore, in our opinion, S. 13 of the Act does not create an implied bar and the High Court is right in holding that the suit was competent.The only point that remains is regarding the date of the knowledge of the plaintiff. Both Courts below have found that the plaintiff came to know of the mistake on December 22, 1952, the date of the promulgation of Governors ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact. | 0 | 2,646 | 524 | ### Instruction:
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It is apparent that the dealer cannot apply for refund under S. 13 till an order of assessment is passed. The prescribed form also shows the same thing. The scheme of s. 13 appears to be that the Sales Tax Officer would make first an order of assessment, arrive at the amount of tax due according to the order and then work out the excess, if any, paid by the dealer and refund that money. It seems to us that S. 13 does not contemplate objections being entertained regarding the constitutional validity of any payment made by the dealer. The Solicitor-General contended that an appeal would lie against an order made under s. 13. Assuming that it is so, the appeal would be only on the ground that the computation made by the Sales Tax Officer is erroneous and not on the ground that the tax paid by the dealer was not constitutionally payable at all, under the Act. Therefore, if S. 13 is understood in the manner mentioned above, it seems clear to us that no machinery is provided in S. 13 for dealing with the objection that the money paid was paid by virtue of a void provision of the Act.8. Further, we have held in K. S. Venkataraman v. State of Madras, Civil Appeal No. 618 of 1963, dated 18-10-1965; (reported in AIR 1966 SC 1089 ) that the Sales Tax Authorities created by the Madras General Sales Tax Act are not competent to entertain questions as to the ultra vires of a provision of the Act. Similarly the Commissioner appointed under the Bombay Sales Tax Act would not be competent to go into the question whether S. 6 of the Act under which the transactions were apparently taxable was ultra vires or not.9. Therefore, in our opinion, S. 13 of the Act does not create an implied bar and the High Court is right in holding that the suit was competent.10. This Court has recently held that Art. 96 applies to suits like the present. (See Civil Appeal No. 720 of 1963 (SC), State of Kerala v. Aluminium Industries Ltd., Kunda, dated 21-4-1965).11. The only point that remains is regarding the date of the knowledge of the plaintiff. Both Courts below have found that the plaintiff came to know of the mistake on December 22, 1952, the date of the promulgation of Governors ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact.12. Accordingly, agreeing with the High Court, we hold that the suit is not barred. In the result the appeals fail and are dismissed with costs. One hearing fee.13. Shah, J.(With Ramaswami, J.)These appeals arise out of suits filed by the two respondents for recovery of sums of money paid by them as advanced sales-tax under a mistake of law. The suits were decreed by the Court of First Instance and the decisions were confirmed in appeals by the High Court of Judicature at Bombay.14. There were no orders of assessment made by the taxing authorities, but the taxpayers being of the view that the tax on their turnover was payable submitted returns under the Bombay Sales Tax Act, 1946 and paid advanced tax. The sales were in respect of goods consigned to purchasers outside the State of Bombay and for consumption outside the State. These sales were apparently covered by the terms of Art. 286 (1) (a) before it was amended by the Sixth Amendment Act and could not be taxed under a statute enacted by a State. The taxpayers claimed that they had discovered their mistake when the Governor of Bombay promulgated Bombay Ordinance No. 2 of 1952 after the decision of the Bombay High Court in the United Motors (India) Ltd. v. The State of Bombay, (1953) 55 Bom LR 246. The Trial Court and the High Court have rejected the contention raised by the State that the suits were barred by Ss. 13 and 20 of the Bombay Sales tax Act, 1946, which were later replaced by Ss. 19 and 29 of the Bombay Sales tax Act, 1952, and that the suits were barred by the law of limitation.15. We agree with the judgment of our brother Sikri, J., that the suits were not barred either expressly by the provisions of S. 20 or impliedly by S. 13 of the Bombay Sales Tax Act, 1946. We also, agree with him that the suits were not barred by the law of limitation, since the suits were filed within the period prescribed by Art. 96 of the 1st Schedule of the Limitation Act 1908, i.e., within three years from the date on which the mistake became known to the taxpayers. We are unable, however, to agree with the observation that before the sales-tax authorities an objection that certain parts of the statute were ultra vires the Legislature could not be raised. As held by this Court in C. A. 481 of 1968, dated 23-4-1965: (reported in AIR 1965 SC 1942 ) the question whether a transaction which falls within the Explanation of Art. 286 (1) (a) before it was amended by the Constitution (Sixth Amendment) Act does not affect the jurisdiction of the taxing authority is merely a question of interpretation of the contract in the light of the statute and the sales-tax authorities are entitled to entertain the objection, if it be raised before them,. that the transaction was not taxable because the State had no power to legislate in respect of an Explanation sale. But in this case, that stage was never reached. The taxpayers in the belief that they were liable to pay tax paid advance tax before any orders of assessment were made. Thereafter realising that they had committed a mistake filed suits refund. Thereby they were seeking to obtain orders of refund of payments made under a mistake of law; they were not seeking to set aside any order of assessment.
### Response:
0
### Explanation:
We are unable to appreciate how S. 20 expressly bars the suit. It is admitted that no assessment has been made under the Act and the plaintiff has not in his suit called into question any assessment or order made under the Act. In our opinion, this part of the argument is covered by the decision of this Court in the Tripura case, 1951 SCR 1(AIR 1951 SC 23) and the High Court was right in sojudgment of Fazl Ali, J., who dissented in the Tripura case, clearly shows that the Court was fully aware of the existence of the machinery in the Act enabling an assessee to challenge an eventual assessment. But this Court, in spite of the existence of that machinery gave effect of the plain words of S. 65 of the Bengal Agricultural Income-tax Act, 1944. There is nothing in the Kamla Mills case, (1965) 16 STC 613 : (AIR 1965 SC 1942 ) which is inconsistent with the Tripura case, 1951 SCR 1: (AIR 1951 SC 23 ). Further Mr. Pathak, learned counsel for the respondent, pointed out that a section similar to S. 13 existed in the Bengal Agricultural Income-tax Act,are unable to read the word assessment in S. 20 to include a mere filing of return and payment by a registered dealer. In our opinion, the word assessment has reference to assessments made under Ss. 11 and 11-A of the Bombay Sales Tax Act, 1946.Therefore, we must overrule the contention of the learned Solicitor-General that S. 20 expressly bars the presentseems to us that S. 13 does not contemplate objections being entertained regarding the constitutional validity of any payment made by the dealer. The Solicitor-General contended that an appeal would lie against an order made under s. 13. Assuming that it is so, the appeal would be only on the ground that the computation made by the Sales Tax Officer is erroneous and not on the ground that the tax paid by the dealer was not constitutionally payable at all, under the Act. Therefore, if S. 13 is understood in the manner mentioned above, it seems clear to us that no machinery is provided in S. 13 for dealing with the objection that the money paid was paid by virtue of a void provision of the Act.Therefore, in our opinion, S. 13 of the Act does not create an implied bar and the High Court is right in holding that the suit was competent.The only point that remains is regarding the date of the knowledge of the plaintiff. Both Courts below have found that the plaintiff came to know of the mistake on December 22, 1952, the date of the promulgation of Governors ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact.
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STATE OF ODISHA Vs. SAMAL BARRAGE EMPLOYEES’ UNION | CIVIL APPEAL NO. OF 2022 (Arising out of SLP (Civil) No.4402 of 2021) 1. Leave granted. 2. This appeal challenges the order dated 01.03.2021 passed by the High Court of Orissa at Cuttack in Contempt Case No.896 of 2021. 3. The aforestated Contempt Petition was filed seeking enforcement of the order dated 29.01.2020 passed by a Single Judge of the High Court in Writ Petition (Civil) No.3442 of 2020. That writ petition was premised on the order dated 22.01.2020 passed by the Single Judge of the High Court in Writ Petition (Civil) No.1954 of 2020. After hearing both sides, Writ Petition No.1954 of 2020 was disposed of directing the official respondent to look into the grievance of the petitioner in the matter of regularization in terms of the Courts direction involved therein within a period of seven days from the date of communication of the order along with copy of the writ petition and copy of the orders relied upon by the petitioner. 4. Close on the heels of the aforestated order dated 22.01.2020, Writ Petition (Civil) No.3442 of 2020 was filed by the respondent herein and as the prayers in the writ petition indicate, relief on the same line as was granted vide order dated 22.01.2020 was prayed for. 5. While dealing with Writ Petition (Civil) No.3442 of 2020, without issuing notice to the official respondents, the Single Judge of the High Court vide order dated 29.01.2020 directed as under: Considering the submission made and keeping in view the development as aforesaid, this Court directs the opposite party no.I to take step for regularization of the case of the petitioner keeping in view the direction under Annexures-1, 2 and 3 and also keeping in view the order of this Court dated 22.01.2020, passed in W.P.(C) No.1954 of 2020. The entire exercise shall be completed as expeditiously as possible, preferably within a period of one and half months from the date of communication of a certified copy of this order along with copy of the writ petition by the petitioner. 6. It is common ground that the case of the petitioner in Writ Petition (Civil) No.1954 of 2020 was considered by the Department and by order dated 04.02.2020, the claim for regularization was rejected. 7. It appears that as the official respondents were not served in Writ Petition (Civil) No.3442 of 2020 and the order was not passed after issuing notice to them, nothing was done by the official respondents in pursuance of the directions issued by the Court in its order dated 29.01.2020. 8. Therefore, Contempt Case No.3553 of 2020 was preferred by the writ petitioner in Writ Petition (Civil) No.3442 of 2020, which was again disposed of without issuing notice to the official respondents with the direction that the direction issued by the Court in Writ Petition (Civil) No.3442 of 2020 be complied within 15 days. 9. This was followed by Contempt Case No.5600 of 2020 which was again disposed of without issuing notice to the official respondents reiterating the earlier directions and commanding the official respondents to deal with the matter within a week. 10. The matter was then considered by the Principal Secretary to Government, Department of Water Resources, Government of Odisha, and by order dated 31.12.2020, the prayer for regularization made by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. 11. Thereafter, yet another Contempt Petition being Contempt Case No.896 of 2021 was filed in which the Single Judge of the High Court was pleased to direct the personal appearance of the alleged contemnors in the High Court along with explanation as to why they should not be punished under the Contempt of Courts Act for deliberate violation. 12. As the facts clearly indicate, at no stage, the official respondents were noticed either when the original writ petition, namely, Writ Petition (Civil) No.3442 of 2020 was disposed of or first two contempt petitions were disposed of by the High Court. Even then the matter was considered by the Principal Secretary and by order dated 31.12.2020, the claim raised by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. Consequently, there was no occasion for the High Court to take cognizance in Contempt Case No.896 of 2021. | 1[ds]12. As the facts clearly indicate, at no stage, the official respondents were noticed either when the original writ petition, namely, Writ Petition (Civil) No.3442 of 2020 was disposed of or first two contempt petitions were disposed of by the High Court. Even then the matter was considered by the Principal Secretary and by order dated 31.12.2020, the claim raised by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. Consequently, there was no occasion for the High Court to take cognizance in Contempt Case No.896 of 2021. | 1 | 791 | 108 | ### 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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CIVIL APPEAL NO. OF 2022 (Arising out of SLP (Civil) No.4402 of 2021) 1. Leave granted. 2. This appeal challenges the order dated 01.03.2021 passed by the High Court of Orissa at Cuttack in Contempt Case No.896 of 2021. 3. The aforestated Contempt Petition was filed seeking enforcement of the order dated 29.01.2020 passed by a Single Judge of the High Court in Writ Petition (Civil) No.3442 of 2020. That writ petition was premised on the order dated 22.01.2020 passed by the Single Judge of the High Court in Writ Petition (Civil) No.1954 of 2020. After hearing both sides, Writ Petition No.1954 of 2020 was disposed of directing the official respondent to look into the grievance of the petitioner in the matter of regularization in terms of the Courts direction involved therein within a period of seven days from the date of communication of the order along with copy of the writ petition and copy of the orders relied upon by the petitioner. 4. Close on the heels of the aforestated order dated 22.01.2020, Writ Petition (Civil) No.3442 of 2020 was filed by the respondent herein and as the prayers in the writ petition indicate, relief on the same line as was granted vide order dated 22.01.2020 was prayed for. 5. While dealing with Writ Petition (Civil) No.3442 of 2020, without issuing notice to the official respondents, the Single Judge of the High Court vide order dated 29.01.2020 directed as under: Considering the submission made and keeping in view the development as aforesaid, this Court directs the opposite party no.I to take step for regularization of the case of the petitioner keeping in view the direction under Annexures-1, 2 and 3 and also keeping in view the order of this Court dated 22.01.2020, passed in W.P.(C) No.1954 of 2020. The entire exercise shall be completed as expeditiously as possible, preferably within a period of one and half months from the date of communication of a certified copy of this order along with copy of the writ petition by the petitioner. 6. It is common ground that the case of the petitioner in Writ Petition (Civil) No.1954 of 2020 was considered by the Department and by order dated 04.02.2020, the claim for regularization was rejected. 7. It appears that as the official respondents were not served in Writ Petition (Civil) No.3442 of 2020 and the order was not passed after issuing notice to them, nothing was done by the official respondents in pursuance of the directions issued by the Court in its order dated 29.01.2020. 8. Therefore, Contempt Case No.3553 of 2020 was preferred by the writ petitioner in Writ Petition (Civil) No.3442 of 2020, which was again disposed of without issuing notice to the official respondents with the direction that the direction issued by the Court in Writ Petition (Civil) No.3442 of 2020 be complied within 15 days. 9. This was followed by Contempt Case No.5600 of 2020 which was again disposed of without issuing notice to the official respondents reiterating the earlier directions and commanding the official respondents to deal with the matter within a week. 10. The matter was then considered by the Principal Secretary to Government, Department of Water Resources, Government of Odisha, and by order dated 31.12.2020, the prayer for regularization made by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. 11. Thereafter, yet another Contempt Petition being Contempt Case No.896 of 2021 was filed in which the Single Judge of the High Court was pleased to direct the personal appearance of the alleged contemnors in the High Court along with explanation as to why they should not be punished under the Contempt of Courts Act for deliberate violation. 12. As the facts clearly indicate, at no stage, the official respondents were noticed either when the original writ petition, namely, Writ Petition (Civil) No.3442 of 2020 was disposed of or first two contempt petitions were disposed of by the High Court. Even then the matter was considered by the Principal Secretary and by order dated 31.12.2020, the claim raised by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. Consequently, there was no occasion for the High Court to take cognizance in Contempt Case No.896 of 2021.
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12. As the facts clearly indicate, at no stage, the official respondents were noticed either when the original writ petition, namely, Writ Petition (Civil) No.3442 of 2020 was disposed of or first two contempt petitions were disposed of by the High Court. Even then the matter was considered by the Principal Secretary and by order dated 31.12.2020, the claim raised by the petitioner in Writ Petition (Civil) No.3442 of 2020 was rejected. Consequently, there was no occasion for the High Court to take cognizance in Contempt Case No.896 of 2021.
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VINAY EKNATH LAD Vs. CHIU MAO CHEN | the firm because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc., it cannot be said, unless the accounts are settled in the manner indicated by Section 48 of the Partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under Section 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting Section 17 of the Registration Act.?15. The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties. 16. An application, registered as I.A. No. 1/2009 has been taken out by the plaintiffs in connection with the present Civil Appeal, through which the appellant seeks to introduce to the present proceeding the following documents:- (i) partnership deed dated 10.10.1975 constituting firm by Name Sri Sabari Corporation (ii) Deed of dissolution dated 7.12.1978 dissolving the firm by name Sri Sabari Corporation. (iii) Co-ownership agreement dated 7.12.1978 (iv) copy of registered agreement declaring interest in co- ownership property dated 19.3.1993 (v) Income T ax returns of V. Sivagupta wherein income from suit scheduled property is shown as HUF income. (vi) Income T ax returns of S. Giridhar wherein income from suit scheduled property is shown as HUF income.17. These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding. 18. Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into. 19. We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts. | 1[ds]8. We accept the plaintiffs? stand that the principle of estoppel bars a tenant from questioning the title landlords. This is incorporated in Section 116 of the Evidence Act. But this principle cannot be made applicable in the present case straightaway as the main defence set up by the tenant is that he had acknowledged the said partnership firm as the landlord but questioned the locus standi of the plaintiffs, who operated under the same trade name. In absence of attornment or public notice of dissolution, the defendant had no way of having knowledge of change of landlord of the subject-premises from partnership firm to a co- ownership concern. The co-ownership firm admittedly was not the defendant?s landlord at the time of commencement of the lease. Thus, identity of the landlord stood altered, though the seventeen individuals continued to operate under the same trade name. For this reason, the very fact that rent was continued to be paid to Sri Sabari Corporation cannot constitute acceptance of the original plaintiffs as the landlord by the defendant.The other limb of defence of the tenant related to admissibility of Exhibit P5, which in substance is a modification instrument of an earlier co-ownership agreement of the year 1993. Exhibit P5 however, is a document that came into existence after the suit was instituted on 15 th November, 2006. This document is dated 5 th May, 2007. There is reference in this document to an earlier co-ownership agreement effected on 10 th March, 1993. The necessity of executing Exhibit P5 appears to be demise of two of the co-owners, who were parties to the aforesaid document of 1993 and their shares were transferred to their respective widows. But the suit cannot turn solely on the basis of this document. Neither this document per se establishes plaintiffs? ownership of the subject property.The plaint, exhibits and deposition of the plaintiffs? witness do not adequately explain the journey of the subject premises from the erstwhile partnership firm, which had inducted mother of the present defendant as a tenant, to the seventeen individuals operating as a co-ownership firm. What has been argued on behalf of the appellant is that upon dissolution of the firm, there was sharing of residue assets thereof under Section 48 of the Partnership Act 1932 among the partners or their legal representatives.The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties.These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding.Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into.We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts. | 1 | 6,155 | 1,185 | ### 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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the firm because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc., it cannot be said, unless the accounts are settled in the manner indicated by Section 48 of the Partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under Section 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting Section 17 of the Registration Act.?15. The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties. 16. An application, registered as I.A. No. 1/2009 has been taken out by the plaintiffs in connection with the present Civil Appeal, through which the appellant seeks to introduce to the present proceeding the following documents:- (i) partnership deed dated 10.10.1975 constituting firm by Name Sri Sabari Corporation (ii) Deed of dissolution dated 7.12.1978 dissolving the firm by name Sri Sabari Corporation. (iii) Co-ownership agreement dated 7.12.1978 (iv) copy of registered agreement declaring interest in co- ownership property dated 19.3.1993 (v) Income T ax returns of V. Sivagupta wherein income from suit scheduled property is shown as HUF income. (vi) Income T ax returns of S. Giridhar wherein income from suit scheduled property is shown as HUF income.17. These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding. 18. Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into. 19. We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts.
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the same trade name. In absence of attornment or public notice of dissolution, the defendant had no way of having knowledge of change of landlord of the subject-premises from partnership firm to a co- ownership concern. The co-ownership firm admittedly was not the defendant?s landlord at the time of commencement of the lease. Thus, identity of the landlord stood altered, though the seventeen individuals continued to operate under the same trade name. For this reason, the very fact that rent was continued to be paid to Sri Sabari Corporation cannot constitute acceptance of the original plaintiffs as the landlord by the defendant.The other limb of defence of the tenant related to admissibility of Exhibit P5, which in substance is a modification instrument of an earlier co-ownership agreement of the year 1993. Exhibit P5 however, is a document that came into existence after the suit was instituted on 15 th November, 2006. This document is dated 5 th May, 2007. There is reference in this document to an earlier co-ownership agreement effected on 10 th March, 1993. The necessity of executing Exhibit P5 appears to be demise of two of the co-owners, who were parties to the aforesaid document of 1993 and their shares were transferred to their respective widows. But the suit cannot turn solely on the basis of this document. Neither this document per se establishes plaintiffs? ownership of the subject property.The plaint, exhibits and deposition of the plaintiffs? witness do not adequately explain the journey of the subject premises from the erstwhile partnership firm, which had inducted mother of the present defendant as a tenant, to the seventeen individuals operating as a co-ownership firm. What has been argued on behalf of the appellant is that upon dissolution of the firm, there was sharing of residue assets thereof under Section 48 of the Partnership Act 1932 among the partners or their legal representatives.The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. T o this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act 1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) Vs. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties.These documents, however, would have to be proved to enable the plaintiffs to show the journey path of the title of the subject premises. At this stage, we do not think we can enter into that exercise, which would call for proving of these documents. We have to examine the respective claims without reverting to the documents annexed to this application. The permission to file these documents was given by this Court on 16 th January, 2009. Upon going through the application however we decline to permit the appellant to adduce fresh evidence before this Court at this stage of the proceeding.Without the aid of these documents annexed to the aforesaid interlocutory application, the Trial Court found plaintiffs had established title superior to that of the tenant in respect of the subject premises. The Trial Court has proceeded on a principle akin to admission by the defendant of plaintiffs? position as that of the landlords of the subject-premises. That is the underlying reasoning of the Trial Court?s judgment. According to the original plaintiffs, the defendant entered into negotiation with them, for which paragraph 7 of the written statement has been relied upon. The said notice of 2004, however, was not made exhibit. The High Court, in the judgment under appeal has not dealt with finding of the Trial Court on this aspect of the suit. This is a point which could have material impact on adjudication of the rival claims. We hold so because the defendant?s defence on derivative title would not survive if the appellant can establish that from the notice of 17 th May 2004 the ownership of seventeen original plaintiffs could be established. In that event, Section 116 of the Evidence Act, 1872 would become applicable. The defendant?s continued payment of rent thereafter would constitute acknowledging the said plaintiffs as his landlord. This would result in creation of attornment, as held in the cases of Bismilla Be (supra) and Apollo Zippers (supra). T o conclude this part of the controversy, factual enquiry is necessary which the High Court exercising its appellate jurisdiction has not gone into.We have already opined that sufficient material was not there before the first two Courts to establish the original plaintiffs? claim of ownership of the subject premises on the basis of a family arrangement after dissolution of the firm. The appellant?s attempt to adduce additional documents to establish his stand on that point has been rejected by us at this stage. The ratio of the judgment in the case of S.V.Chandra Pandian (supra) cannot be applied in the present proceeding as there is no material before us from which we could conclude that the original plaintiffs? title to the subject-premises came from residue assets of the dissolved firm. In a landlord-tenant suit, the landlord is not required to prove his title in the subject property as in a title-suit. But when the landlord?s derivative title is challenged, the same has to be established in some form. On this point the original plaintiffs have failed before the first two Courts.
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State Of M.P. Through C.B.I Vs. Paltan Mallah | & Science Laboratory, New Delhi. During the post-mortem of the deceased Shankar Guha Niyogi, three pellets were extricated from his body. These pellets were sent to Forensic Laboratory at Sagar and thereafter they were deposited in the court by PW-192 and these pellets were also later on obtained from the court and sent for examination by the CFSL. PW-159, the ballistic expert conducted detailed laboratory test-fires and microscopic examination and he gave Exh.P-398 report wherein he opined that three lead pellets marked P-1 to P-3 must have been fired from a 12 bore country-made pistol. He deposed that he had prepared the report on the basis of the miscroscopic examination and he had also taken photographs of the pellets and Exh.P-398 are the work-sheets of the report prepared by him. 34. The evidence of Pw-159 and his report are seriously challenged by the counsel for the respondent accused. He extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was argued that in the instant case, the weapon was a country-made pistol and the barrel was not grooved and there was absolutely no question of any identifiable marking coming on the pellets to enable the expert to give any opinion whatsoever. Reliance was placed by him on the observations of this Court in Ram Avtar and Others vs. Ram Dhani and Others (1997) 2 SCC 263 wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire Arms & Investigation to the effect that unless there were rifling marks in the bullets which were not defaced by the entry in the bodies of the victims, no expert can ordinarily and generally give an opinion. It was also pointed out that in the case of country-made pistol, it was difficult to assume that the ballistic expert could have found identifying marks on the pellets. The evidence given by the ballistic expert was questioned in great detail. He was cross-examined extensively be counsel for all the accused. He deposed in the cross-examination that when these pellets are fired, then they among themselves would press each other inside the barrel [on inside parts] their effect could be on the side of inner side of barrel, they will take special individual mark on them and these marks will be in the form of a line on the pellets and if the barrel is tight then pellets will be more rubbed, and on more parts, lines will come. If barrel is tight then half part of the pellets are pressed and the barrel was nicely tight and the witness himself said that in the test-fire which he did on all of the six pellets good marks of barrel had come. He had also stated that he had taken micro-photograph of only one pellet and had compared all pellets but he had not made any separate comparative record or photograph. 35. It was argued that micro-photographs were not produced and mere observation by the expert - was not sufficient and that he should have produced these photographs. We do not think that there was any such necessity to produce the micro photographs when the expert has given convincing reasons to support his opinion. This Court in Ramanathan vs. State of Tamil Nadu [1978] 3 SCC 86 held that the production of such photographs is not necessary and such a peal was rejected. In paragraph 26, it was held as under: It is true that there has been considerable difference of opinion amongst investigators regarding the use of photographs in a court for the purpose of illustrating the matching of the markings, and while it may be that microscopic photographs, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs. It is therefore not possible for us to reject the evidence of Ramiah (PW 23) who has categorically stated that he had compared the land and groove markings on the bullets under a comparison microscope, simply because he did not think it necessary to take the photographs. 36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah. 37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life. | 1[ds]18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only throw some serious suspicion against these accused which cannot be used as a substitute for evidence21. The High Court in the impugned judgment stated that there is absolutely no evidence to show that Paltan Mallah could have been at Bhilai during the relevant period. In a murder that took place during night, there would not be any direct evidence to prove the fact, but various circumstances would show that the ninth-accused was a Bhilai during 1991. This accused was staying with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone to Bombay and this evidence was erroneously taken into consideration by the High Court. It is common knowledge that the wife of an accused, leave aside the exceptional cases, would always give evidence only to support the husband31. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life. | 1 | 7,779 | 697 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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& Science Laboratory, New Delhi. During the post-mortem of the deceased Shankar Guha Niyogi, three pellets were extricated from his body. These pellets were sent to Forensic Laboratory at Sagar and thereafter they were deposited in the court by PW-192 and these pellets were also later on obtained from the court and sent for examination by the CFSL. PW-159, the ballistic expert conducted detailed laboratory test-fires and microscopic examination and he gave Exh.P-398 report wherein he opined that three lead pellets marked P-1 to P-3 must have been fired from a 12 bore country-made pistol. He deposed that he had prepared the report on the basis of the miscroscopic examination and he had also taken photographs of the pellets and Exh.P-398 are the work-sheets of the report prepared by him. 34. The evidence of Pw-159 and his report are seriously challenged by the counsel for the respondent accused. He extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was argued that in the instant case, the weapon was a country-made pistol and the barrel was not grooved and there was absolutely no question of any identifiable marking coming on the pellets to enable the expert to give any opinion whatsoever. Reliance was placed by him on the observations of this Court in Ram Avtar and Others vs. Ram Dhani and Others (1997) 2 SCC 263 wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire Arms & Investigation to the effect that unless there were rifling marks in the bullets which were not defaced by the entry in the bodies of the victims, no expert can ordinarily and generally give an opinion. It was also pointed out that in the case of country-made pistol, it was difficult to assume that the ballistic expert could have found identifying marks on the pellets. The evidence given by the ballistic expert was questioned in great detail. He was cross-examined extensively be counsel for all the accused. He deposed in the cross-examination that when these pellets are fired, then they among themselves would press each other inside the barrel [on inside parts] their effect could be on the side of inner side of barrel, they will take special individual mark on them and these marks will be in the form of a line on the pellets and if the barrel is tight then pellets will be more rubbed, and on more parts, lines will come. If barrel is tight then half part of the pellets are pressed and the barrel was nicely tight and the witness himself said that in the test-fire which he did on all of the six pellets good marks of barrel had come. He had also stated that he had taken micro-photograph of only one pellet and had compared all pellets but he had not made any separate comparative record or photograph. 35. It was argued that micro-photographs were not produced and mere observation by the expert - was not sufficient and that he should have produced these photographs. We do not think that there was any such necessity to produce the micro photographs when the expert has given convincing reasons to support his opinion. This Court in Ramanathan vs. State of Tamil Nadu [1978] 3 SCC 86 held that the production of such photographs is not necessary and such a peal was rejected. In paragraph 26, it was held as under: It is true that there has been considerable difference of opinion amongst investigators regarding the use of photographs in a court for the purpose of illustrating the matching of the markings, and while it may be that microscopic photographs, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs. It is therefore not possible for us to reject the evidence of Ramiah (PW 23) who has categorically stated that he had compared the land and groove markings on the bullets under a comparison microscope, simply because he did not think it necessary to take the photographs. 36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah. 37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life.
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18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only throw some serious suspicion against these accused which cannot be used as a substitute for evidence21. The High Court in the impugned judgment stated that there is absolutely no evidence to show that Paltan Mallah could have been at Bhilai during the relevant period. In a murder that took place during night, there would not be any direct evidence to prove the fact, but various circumstances would show that the ninth-accused was a Bhilai during 1991. This accused was staying with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone to Bombay and this evidence was erroneously taken into consideration by the High Court. It is common knowledge that the wife of an accused, leave aside the exceptional cases, would always give evidence only to support the husband31. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life.
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Board Of Directors Of The South Arcot Elec-Tricity Distrib Vs. N.K. Mohammad Khan, Etc | of the right accruing to them under Section25-FF of the Act.In this connection, an additional point urged by Mr. Gupte was that the principal clause of Section25-FF of the Act does not lay down which of the two employers mentioned there in is liable to pay the retrenchment compensation and, consequently, where there is dispute between the two employers, an application for computation of the benefit under Section25-FF of the Act cannot be competently entertained and decided by a Labour Court. It appears to us that the language of that principal clause makes it perfectly clear that, if the right to retrenchment compensation accrues under it, it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer. It is implicit in the language of that clause. The clause lays down that every workman mentioned therein shall be entitled to notice and compensations in accordance with the provision of Section 25-F as if the workman had been retrenched. Obviously, in such a case, the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transferred to the new employer. In the present case, that date would be the 1st of June, 1957, when the undertaking of the company was taken over by the Government of Madras under the Madras Act. If the workmens services are to be deemed to be retrenched on that very date, it is clear that, for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation, the workmen could not become the employees of the new employer. The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but, simultaneously with this vesting, the workmen had to be deemed to be retrenched from service. That retrenchment could, therefore, be deemed to have been made only by the previous employer. Further, it would be that previous employer who would be competent to give the notice in accordance with the provisions of Section25-F of the Act. The notice of retrenchment, which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government, could not possibly be given by the State Government. In these circumstances, the conclusion is irresistible that the claim under Section25-FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of transfer. In the present case, therefore, the right to receive compensation clearly accrued under Section25-FF of the Act against the company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basis.So far as the second point is concerned, it is fully answered by our decision in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar and others, [1968 - I S.C.R. 140] where it was held : It is clear that the right to the benefit which is sought to be computed for 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 an industrial workman and his employer. 6. The view was further clarified and affirmed by this Court in State of Bikaner and Jaipur v. R. L. Khandelwal, [1968 - I L.L.J. 589] where the court took notice of the decisions of this court in the case cited above, and in Punjab National Bank Ltd. v. K. L. Kharbanda [1962 - Supp. 2 S.C.R. 977]. Central Bank of India v. P. S. Rajagopalan and Others [1964 - 3 S.C.R. 140] and Bombay Gas Company Ltd. v. Gopal Bhiva and Others, [1964 - 3 S.C.R. 709], and held : These decisions make it clear that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under Section10 of the Act. 7. In the present case, we have already indicated, when dealing with the first point, that the right, which has been claimed by the various workmen in their applications under Section33-C(2) of the Act, is a right which accrued to them under Section25-FF of the Act and was an existing right at the time when these application were made. 8. The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent.The third and the last point raised by Mr. Gupte fails and could not be pressed in view of our decision that the right of the workmen which has been adjudicated upon by the Labour Court in the application under Section33-C(2) of the Act, was a right accruing to them against the company under Section25-FF of the Act. The right having initially accrued under this provision of law against the company, the Labour Court was clearly justified in computing the benefit under that right and laying it down that the liability was enforceable against the company. The Labour Court was concerned with the right claimed under the Act. Whether, by virtue of the provisions or the terms of transfer of the undertaking from the company to the Government, or by virtue of the provisions of the Madras Act, the company is entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim the compensation from the company and the Labour Court was, therefore, not require to go into this question when dealing with applications under Section33-C(2) of the Act. 9. | 0[ds]In our opinion, it is unnecessary to go into the question whether condition (c) has or has not been satisfied, because it is very clear that condition (b) of the proviso is certainly not satisfied. Under clause (b), the requirement is that the terms and conditions of service applicable to the workman after transfer must not in any way be less favourable than those applicable to him immediately before the transfer. On examination of the Madras Act and the rules, it is manifest that the terms and conditions of service of the workmen have not remained as favourable under the State Government or the Electricity Board as they were when the workmen were employed by the company. Under clause (1) of Section15 of the Madras Act, the State Government is given the power to terminate the services of any workman after giving him three calendar months notice in writing or paying him three months pay in lieu of such notice. It has not been shown to us on behalf if the company that there was any such liability to termination of service of these workmen while they were employed by the companyIt is clear that, in exercise of this power, the Government can make rules altering the terms and condition of services of the workmen retained by the Government, and this power can be exercised from time to time. There was no such liability of change of conditions of service of the workmen while they were employed under the company. If the company had desired to alter their conditions of service, the company would have been required to comply with the provisions of either Section9-A of the Act, or Section10 of the Industrial Employment (Standing Orders) Act No. 20 of 1946. Obviously, the right of the Government of Madras as the new employer under Section15(2) of the Madras Act to change the conditions of services of the workmen from time to time, in its very nature, alters the conditions of services of the workmen to their disadvantage. Rule 17 of the rules further shows that, immediately on the vesting of the undertaking in the State Government the service of the workmen retained by the Government become provisional and the subsequent permanent employment of those workmen in the under-taking is dependent on the conditions laid down in that rule. This liability imposed on the workmen is clearly disadvantageous to those workmen who were in the permanent employ of the company. The same rule also shown that the employees would not be entitled to bonus or other concession not allowed to the servants of the Government, even it the workmen were entitled to bonus and the concessions from the company. The workmen also became liable to transfer to any other place or post in the Government Electricity Department depending on exigencies of service. These are instances of a number of conditions of services which became less favourable to the workmen on their becoming employees of the State Government when the undertaking vested in that Government by transfer from the company. In these circumstances, the requirements of the proviso to Section25-FF of the Act are obviously not satisfied and that proviso cannot be invoked by the company for the purpose of defeating the claim made by the workmen under the principal clause of that section. Under that principal clause, the workmen became entitled to receive retrenchment compensation in accordance with the provision of Section25 F of the Act on the basis of the legal fiction envisaged that those rights would accrue to them as if the workmen had been retrenched. The Labour Court and the High Court were, therefore, right in holding that the workmen were entitled to claim retrenchment compensation in accordance with the provisions of Section25-F of the Act because of the right accruing to them under Section25-FF of the Act.In this connection, an additional point urged by Mr. Gupte was that the principal clause of Section25-FF of the Act does not lay down which of the two employers mentioned there in is liable to pay the retrenchment compensation and, consequently, where there is dispute between the two employers, an application for computation of the benefit under Section25-FF of the Act cannot be competently entertained and decided by a Labour Court. It appears to us that the language of that principal clause makes it perfectly clear that, if the right to retrenchment compensation accrues under it, it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer. It is implicit in the language of that clause. The clause lays down that every workman mentioned therein shall be entitled to notice and compensations in accordance with the provision of Section 25-F as if the workman had been retrenched. Obviously, in such a case, the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transferred to the new employer. In the present case, that date would be the 1st of June, 1957, when the undertaking of the company was taken over by the Government of Madras under the Madras Act. If the workmens services are to be deemed to be retrenched on that very date, it is clear that, for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation, the workmen could not become the employees of the new employer. The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but, simultaneously with this vesting, the workmen had to be deemed to be retrenched from service. That retrenchment could, therefore, be deemed to have been made only by the previous employer. Further, it would be that previous employer who would be competent to give the notice in accordance with the provisions of Section25-F of the Act. The notice of retrenchment, which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government, could not possibly be given by the State Government. In these circumstances, the conclusion is irresistible that the claim under Section25-FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of transfer. In the present case, therefore, the right to receive compensation clearly accrued under Section25-FF of the Act against the company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basisThe Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent.The third and the last point raised by Mr. Gupte fails and could not be pressed in view of our decision that the right of the workmen which has been adjudicated upon by the Labour Court in the application under Section33-C(2) of the Act, was a right accruing to them against the company under Section25-FF of the Act. The right having initially accrued under this provision of law against the company, the Labour Court was clearly justified in computing the benefit under that right and laying it down that the liability was enforceable against the company. The Labour Court was concerned with the right claimed under the Act. Whether, by virtue of the provisions or the terms of transfer of the undertaking from the company to the Government, or by virtue of the provisions of the Madras Act, the company is entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim the compensation from the company and the Labour Court was, therefore, not require to go into this question when dealing with applications under Section33-C(2) of the Act. | 0 | 4,290 | 1,449 | ### 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:
of the right accruing to them under Section25-FF of the Act.In this connection, an additional point urged by Mr. Gupte was that the principal clause of Section25-FF of the Act does not lay down which of the two employers mentioned there in is liable to pay the retrenchment compensation and, consequently, where there is dispute between the two employers, an application for computation of the benefit under Section25-FF of the Act cannot be competently entertained and decided by a Labour Court. It appears to us that the language of that principal clause makes it perfectly clear that, if the right to retrenchment compensation accrues under it, it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer. It is implicit in the language of that clause. The clause lays down that every workman mentioned therein shall be entitled to notice and compensations in accordance with the provision of Section 25-F as if the workman had been retrenched. Obviously, in such a case, the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transferred to the new employer. In the present case, that date would be the 1st of June, 1957, when the undertaking of the company was taken over by the Government of Madras under the Madras Act. If the workmens services are to be deemed to be retrenched on that very date, it is clear that, for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation, the workmen could not become the employees of the new employer. The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but, simultaneously with this vesting, the workmen had to be deemed to be retrenched from service. That retrenchment could, therefore, be deemed to have been made only by the previous employer. Further, it would be that previous employer who would be competent to give the notice in accordance with the provisions of Section25-F of the Act. The notice of retrenchment, which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government, could not possibly be given by the State Government. In these circumstances, the conclusion is irresistible that the claim under Section25-FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of transfer. In the present case, therefore, the right to receive compensation clearly accrued under Section25-FF of the Act against the company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basis.So far as the second point is concerned, it is fully answered by our decision in Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar and others, [1968 - I S.C.R. 140] where it was held : It is clear that the right to the benefit which is sought to be computed for 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 an industrial workman and his employer. 6. The view was further clarified and affirmed by this Court in State of Bikaner and Jaipur v. R. L. Khandelwal, [1968 - I L.L.J. 589] where the court took notice of the decisions of this court in the case cited above, and in Punjab National Bank Ltd. v. K. L. Kharbanda [1962 - Supp. 2 S.C.R. 977]. Central Bank of India v. P. S. Rajagopalan and Others [1964 - 3 S.C.R. 140] and Bombay Gas Company Ltd. v. Gopal Bhiva and Others, [1964 - 3 S.C.R. 709], and held : These decisions make it clear that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under Section10 of the Act. 7. In the present case, we have already indicated, when dealing with the first point, that the right, which has been claimed by the various workmen in their applications under Section33-C(2) of the Act, is a right which accrued to them under Section25-FF of the Act and was an existing right at the time when these application were made. 8. The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent.The third and the last point raised by Mr. Gupte fails and could not be pressed in view of our decision that the right of the workmen which has been adjudicated upon by the Labour Court in the application under Section33-C(2) of the Act, was a right accruing to them against the company under Section25-FF of the Act. The right having initially accrued under this provision of law against the company, the Labour Court was clearly justified in computing the benefit under that right and laying it down that the liability was enforceable against the company. The Labour Court was concerned with the right claimed under the Act. Whether, by virtue of the provisions or the terms of transfer of the undertaking from the company to the Government, or by virtue of the provisions of the Madras Act, the company is entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim the compensation from the company and the Labour Court was, therefore, not require to go into this question when dealing with applications under Section33-C(2) of the Act. 9.
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### Explanation:
Rule 17 of the rules further shows that, immediately on the vesting of the undertaking in the State Government the service of the workmen retained by the Government become provisional and the subsequent permanent employment of those workmen in the under-taking is dependent on the conditions laid down in that rule. This liability imposed on the workmen is clearly disadvantageous to those workmen who were in the permanent employ of the company. The same rule also shown that the employees would not be entitled to bonus or other concession not allowed to the servants of the Government, even it the workmen were entitled to bonus and the concessions from the company. The workmen also became liable to transfer to any other place or post in the Government Electricity Department depending on exigencies of service. These are instances of a number of conditions of services which became less favourable to the workmen on their becoming employees of the State Government when the undertaking vested in that Government by transfer from the company. In these circumstances, the requirements of the proviso to Section25-FF of the Act are obviously not satisfied and that proviso cannot be invoked by the company for the purpose of defeating the claim made by the workmen under the principal clause of that section. Under that principal clause, the workmen became entitled to receive retrenchment compensation in accordance with the provision of Section25 F of the Act on the basis of the legal fiction envisaged that those rights would accrue to them as if the workmen had been retrenched. The Labour Court and the High Court were, therefore, right in holding that the workmen were entitled to claim retrenchment compensation in accordance with the provisions of Section25-F of the Act because of the right accruing to them under Section25-FF of the Act.In this connection, an additional point urged by Mr. Gupte was that the principal clause of Section25-FF of the Act does not lay down which of the two employers mentioned there in is liable to pay the retrenchment compensation and, consequently, where there is dispute between the two employers, an application for computation of the benefit under Section25-FF of the Act cannot be competently entertained and decided by a Labour Court. It appears to us that the language of that principal clause makes it perfectly clear that, if the right to retrenchment compensation accrues under it, it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer. It is implicit in the language of that clause. The clause lays down that every workman mentioned therein shall be entitled to notice and compensations in accordance with the provision of Section 25-F as if the workman had been retrenched. Obviously, in such a case, the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transferred to the new employer. In the present case, that date would be the 1st of June, 1957, when the undertaking of the company was taken over by the Government of Madras under the Madras Act. If the workmens services are to be deemed to be retrenched on that very date, it is clear that, for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation, the workmen could not become the employees of the new employer. The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but, simultaneously with this vesting, the workmen had to be deemed to be retrenched from service. That retrenchment could, therefore, be deemed to have been made only by the previous employer. Further, it would be that previous employer who would be competent to give the notice in accordance with the provisions of Section25-F of the Act. The notice of retrenchment, which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government, could not possibly be given by the State Government. In these circumstances, the conclusion is irresistible that the claim under Section25-FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of transfer. In the present case, therefore, the right to receive compensation clearly accrued under Section25-FF of the Act against the company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basisThe Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent.The third and the last point raised by Mr. Gupte fails and could not be pressed in view of our decision that the right of the workmen which has been adjudicated upon by the Labour Court in the application under Section33-C(2) of the Act, was a right accruing to them against the company under Section25-FF of the Act. The right having initially accrued under this provision of law against the company, the Labour Court was clearly justified in computing the benefit under that right and laying it down that the liability was enforceable against the company. The Labour Court was concerned with the right claimed under the Act. Whether, by virtue of the provisions or the terms of transfer of the undertaking from the company to the Government, or by virtue of the provisions of the Madras Act, the company is entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim the compensation from the company and the Labour Court was, therefore, not require to go into this question when dealing with applications under Section33-C(2) of the Act.
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Suresh Hindurao Patil Vs. The State of Maharashtra and Another | acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of W.B. [2005 (2) SCC 659 ], this Court had quashed the proceedings initiated against the accused.14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.12. The position of law as enunciated by the Apex Court has subsequently followed by a series of judgments delivered by this Court and counsel for the petitioner has rightly relied on the judgment of this Court in Kishor Dattatraya Shinde (supra). Abetment involves a mental process – a mens rea – without a positive act on part of the accused to aid or instigate suicide, a charge under Section 306 cannot be sustained. In the case of State of Kerala & Ors. v. Unnikrishnan Nair & Ors. reported in AIR 2015 SC 3351 , the Honble Apex Court dealt with the case of a Chief Investigating Officer who had committed suicide pending investigation in a murder case. In the suicide note, he alleged that two of his subordinates were responsible for the situation which had prompted him to commit suicide. Some allegations were also levelled against the Chief Metropolitan Magistrate and one advocate. The Kerala High Court quashed the FIR and, being aggrieved, the State had approached the Apex Court. While dismissing the appeal, the following observations came to be made by Their Lordships and we reproduce the same:13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate. 13. The present case is one such cases, which was decided by the Apex Court, and we find that except a bald statement that the petitioner was harassing the deceased and meted out ill¬treatment to him, there is no other allegation. We have already observed that the petitioner had no role to play in the governing service conditions of the deceased and, therefore, whatever unpleasent situation which had occasioned out of the employment, the petitioner in, no way, was responsible for the same.14. The ingredients to prove an offence of suicide is conspicuously absent in the present case as the intention to bring about the suicide of the deceased is not made out in the FIR nor can it be said to be made out from the suicide note. Perusal of the FIR filed by the father of the deceased makes a reference to the proximate discord of the deceased with his wife and the deceased had committed suicide in the month of May, 2018, approximately after 7 months of his return to India from Abudhabi. The complainant did not make any reference in the FIR except that he was resigned from service and for seven months he was staying at the given address. There appears to be some discord between the deceased and his wife and it appears from the complaint that it had aggravated since he left his job at Abudhabi. In any contingency, the FIR does not allege anything against the petitioner except the contention in the suicide note. Since we fail to note any allegations in the FIR attributing a specific role of the petitioner in abetting the suicide of the deceased, we are of the considered opinion that the petitioner would suffer a serious and great prejudice if he is made to face the prosecution on absurd, vague and irrelevant allegations. We do not expect the petitioner to undergo the rigmarole of the trial.We are prima facie satisfied that continuation of the proceedings against the petitioner will amount to abuse of process of law and to secure justice, we are inclined to exercise our inherent jurisdiction conferred under Section 482 of the Cr.P.C. and quash and set aside the subject FIR dated 15th May 2018 registered with Shivajinagar Police Station, Ambernath (E), Thane | 1[ds]9. We have perused the petition along with its annexures and have also carefully considered the arguments advanced by the petitioner as well as learned counsel for Respondent No.2 and learned A.P.P. for the State.It is to be noted that by Order dated 21/01/2019, this Court, while issuing notice, had directed continuation of investigation, but had restrained the police from filing charge¬sheet. On perusal of the facts, it is clear that the petitioner was working in SITA Company, which was responsible for maintaining the Information Network Computing System at various Airports and in discharge of its functions, the Company had recruited its own staff or was taking the assistance of the contractual employees recruited by Prime Tech Systems. The deceased was recruited by Prime Tech Systems and he was attached to the petitioners Company as a contractual employee. The petitioner in his capacity as Airport Service Manager of SITA Company was not in a supervisory capacity, competent to take any decision qua the employees of the principal employer though it may be true that there was some issues between the deceased and the Prime Tech System as is apparent from the emails placed on record. However, in any case, the petitioner or his company cannot be said to be responsible for the death of the deceased as the correspondence exchanged were in regard to the service stipulations sought to be enforced by Prime Tech System. The principal employer intimated the petitioner about the resignation of the deceased and acceptance of his resignation and intimated that he would be replaced by a suitable employee. There is no existence of any contractual relationship between the petitioner and the deceased and it is absurd to think that the act of suicide of the deceased can, in any way, attributed to the ill¬treatment meted out to him by the petitioner.By now it is settled position of law that for establishing an offence under Section 306 of the IPC, there has to be proof of specific abetment as contemplated by Section 107 of the IPC on the part of the accused with an intention to bring about the suicide of the person concerned and what is the focal point is the intention of the accused to aid or to instigate or abet the deceased to commit suicide.The position of law as enunciated by the Apex Court has subsequently followed by a series of judgments delivered by this Court and counsel for the petitioner has rightly relied on the judgment of this Court in Kishor Dattatraya Shinde (supra). Abetment involves a mental process – a mens rea – without a positive act on part of the accused to aid or instigate suicide, a charge under Section 306 cannot be sustained.The present case is one such cases, which was decided by the Apex Court, and we find that except a bald statement that the petitioner was harassing the deceased and meted out ill¬treatment to him, there is no other allegation. We have already observed that the petitioner had no role to play in the governing service conditions of the deceased and, therefore, whatever unpleasent situation which had occasioned out of the employment, the petitioner in, no way, was responsible for the same.The ingredients to prove an offence of suicide is conspicuously absent in the present case as the intention to bring about the suicide of the deceased is not made out in the FIR nor can it be said to be made out from the suicide note. Perusal of the FIR filed by the father of the deceased makes a reference to the proximate discord of the deceased with his wife and the deceased had committed suicide in the month of May, 2018, approximately after 7 months of his return to India from Abudhabi. The complainant did not make any reference in the FIR except that he was resigned from service and for seven months he was staying at the given address. There appears to be some discord between the deceased and his wife and it appears from the complaint that it had aggravated since he left his job at Abudhabi. In any contingency, the FIR does not allege anything against the petitioner except the contention in the suicide note. Since we fail to note any allegations in the FIR attributing a specific role of the petitioner in abetting the suicide of the deceased, we are of the considered opinion that the petitioner would suffer a serious and great prejudice if he is made to face the prosecution on absurd, vague and irrelevant allegations. We do not expect the petitioner to undergo the rigmarole of theare prima facie satisfied that continuation of the proceedings against the petitioner will amount to abuse of process of law and to secure justice, we are inclined to exercise our inherent jurisdiction conferred under Section 482 of the Cr.P.C. and quash and set aside the subject FIR dated 15th May 2018 registered with Shivajinagar Police Station, Ambernath (E), Thane | 1 | 2,650 | 884 | ### Instruction:
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acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of W.B. [2005 (2) SCC 659 ], this Court had quashed the proceedings initiated against the accused.14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.12. The position of law as enunciated by the Apex Court has subsequently followed by a series of judgments delivered by this Court and counsel for the petitioner has rightly relied on the judgment of this Court in Kishor Dattatraya Shinde (supra). Abetment involves a mental process – a mens rea – without a positive act on part of the accused to aid or instigate suicide, a charge under Section 306 cannot be sustained. In the case of State of Kerala & Ors. v. Unnikrishnan Nair & Ors. reported in AIR 2015 SC 3351 , the Honble Apex Court dealt with the case of a Chief Investigating Officer who had committed suicide pending investigation in a murder case. In the suicide note, he alleged that two of his subordinates were responsible for the situation which had prompted him to commit suicide. Some allegations were also levelled against the Chief Metropolitan Magistrate and one advocate. The Kerala High Court quashed the FIR and, being aggrieved, the State had approached the Apex Court. While dismissing the appeal, the following observations came to be made by Their Lordships and we reproduce the same:13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate. 13. The present case is one such cases, which was decided by the Apex Court, and we find that except a bald statement that the petitioner was harassing the deceased and meted out ill¬treatment to him, there is no other allegation. We have already observed that the petitioner had no role to play in the governing service conditions of the deceased and, therefore, whatever unpleasent situation which had occasioned out of the employment, the petitioner in, no way, was responsible for the same.14. The ingredients to prove an offence of suicide is conspicuously absent in the present case as the intention to bring about the suicide of the deceased is not made out in the FIR nor can it be said to be made out from the suicide note. Perusal of the FIR filed by the father of the deceased makes a reference to the proximate discord of the deceased with his wife and the deceased had committed suicide in the month of May, 2018, approximately after 7 months of his return to India from Abudhabi. The complainant did not make any reference in the FIR except that he was resigned from service and for seven months he was staying at the given address. There appears to be some discord between the deceased and his wife and it appears from the complaint that it had aggravated since he left his job at Abudhabi. In any contingency, the FIR does not allege anything against the petitioner except the contention in the suicide note. Since we fail to note any allegations in the FIR attributing a specific role of the petitioner in abetting the suicide of the deceased, we are of the considered opinion that the petitioner would suffer a serious and great prejudice if he is made to face the prosecution on absurd, vague and irrelevant allegations. We do not expect the petitioner to undergo the rigmarole of the trial.We are prima facie satisfied that continuation of the proceedings against the petitioner will amount to abuse of process of law and to secure justice, we are inclined to exercise our inherent jurisdiction conferred under Section 482 of the Cr.P.C. and quash and set aside the subject FIR dated 15th May 2018 registered with Shivajinagar Police Station, Ambernath (E), Thane
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9. We have perused the petition along with its annexures and have also carefully considered the arguments advanced by the petitioner as well as learned counsel for Respondent No.2 and learned A.P.P. for the State.It is to be noted that by Order dated 21/01/2019, this Court, while issuing notice, had directed continuation of investigation, but had restrained the police from filing charge¬sheet. On perusal of the facts, it is clear that the petitioner was working in SITA Company, which was responsible for maintaining the Information Network Computing System at various Airports and in discharge of its functions, the Company had recruited its own staff or was taking the assistance of the contractual employees recruited by Prime Tech Systems. The deceased was recruited by Prime Tech Systems and he was attached to the petitioners Company as a contractual employee. The petitioner in his capacity as Airport Service Manager of SITA Company was not in a supervisory capacity, competent to take any decision qua the employees of the principal employer though it may be true that there was some issues between the deceased and the Prime Tech System as is apparent from the emails placed on record. However, in any case, the petitioner or his company cannot be said to be responsible for the death of the deceased as the correspondence exchanged were in regard to the service stipulations sought to be enforced by Prime Tech System. The principal employer intimated the petitioner about the resignation of the deceased and acceptance of his resignation and intimated that he would be replaced by a suitable employee. There is no existence of any contractual relationship between the petitioner and the deceased and it is absurd to think that the act of suicide of the deceased can, in any way, attributed to the ill¬treatment meted out to him by the petitioner.By now it is settled position of law that for establishing an offence under Section 306 of the IPC, there has to be proof of specific abetment as contemplated by Section 107 of the IPC on the part of the accused with an intention to bring about the suicide of the person concerned and what is the focal point is the intention of the accused to aid or to instigate or abet the deceased to commit suicide.The position of law as enunciated by the Apex Court has subsequently followed by a series of judgments delivered by this Court and counsel for the petitioner has rightly relied on the judgment of this Court in Kishor Dattatraya Shinde (supra). Abetment involves a mental process – a mens rea – without a positive act on part of the accused to aid or instigate suicide, a charge under Section 306 cannot be sustained.The present case is one such cases, which was decided by the Apex Court, and we find that except a bald statement that the petitioner was harassing the deceased and meted out ill¬treatment to him, there is no other allegation. We have already observed that the petitioner had no role to play in the governing service conditions of the deceased and, therefore, whatever unpleasent situation which had occasioned out of the employment, the petitioner in, no way, was responsible for the same.The ingredients to prove an offence of suicide is conspicuously absent in the present case as the intention to bring about the suicide of the deceased is not made out in the FIR nor can it be said to be made out from the suicide note. Perusal of the FIR filed by the father of the deceased makes a reference to the proximate discord of the deceased with his wife and the deceased had committed suicide in the month of May, 2018, approximately after 7 months of his return to India from Abudhabi. The complainant did not make any reference in the FIR except that he was resigned from service and for seven months he was staying at the given address. There appears to be some discord between the deceased and his wife and it appears from the complaint that it had aggravated since he left his job at Abudhabi. In any contingency, the FIR does not allege anything against the petitioner except the contention in the suicide note. Since we fail to note any allegations in the FIR attributing a specific role of the petitioner in abetting the suicide of the deceased, we are of the considered opinion that the petitioner would suffer a serious and great prejudice if he is made to face the prosecution on absurd, vague and irrelevant allegations. We do not expect the petitioner to undergo the rigmarole of theare prima facie satisfied that continuation of the proceedings against the petitioner will amount to abuse of process of law and to secure justice, we are inclined to exercise our inherent jurisdiction conferred under Section 482 of the Cr.P.C. and quash and set aside the subject FIR dated 15th May 2018 registered with Shivajinagar Police Station, Ambernath (E), Thane
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Kapoor & Company Vs. Workmen of Kapoor & Company | K.N. Wanchoo, J.1. This is an appeal by special leave against the decision of the Labour Appellate Tribunal in an industrial matter. The appellant Messrs. Kapoor and Co. (hereinafter called the company) is an industrial concern engaged in manufacturing lace of all kinds. The respondents are the workmen employed by the company as represented by the Lace Workers Union, Delhi. An industrial dispute arose between the company and its workmen, and it was referred to the Industrial Tribunal by the Delhi State Government on 6-11-1954. Four matters were the subject of reference, of which only one has been urged in this appeal before us and we shall confine ourselves to that. It relates to the demand for profit bonus equal to two months wages for the years 1952 and 1953. It appears that soon after the reference reached the Industrial Tribunal, an agreement was arrived at on 27-11-1954 between the workmen represented by the union and the company on all the matters which were the subject of reference. So far as bonus was concerned, the agreement was that the company would pay three weeks wages by way of bonus for the year 1952 and that the question of bonus for the year 1953 would be settled later between the company and its workmen. This agreement was, however, repudiated by the workmen in December 1954 and in consequence the Industrial Tribunal proceeded to adjudicate upon the matter. By its award dated 8-8-1955, it held that no bonus could be paid for these two years as there was no available surplus of profit to justify it. It, however, expressed the hope that the company would not ask for the refund of three weeks wages already paid as bonus under the agreement and would grant that as an ex gratia payment to the workmen.2. There was an appeal by the workmen against this award to the Labour Appellate Tribunal, which was allowed and the workmen were ordered to be given one months salary as bonus for the years 1952 and 1953, irrespective of the fact that the accounts of the two years did not show any available surplus. Thereupon the company applied for special leave to appeal to this Court, which was granted; and that is how the matter has come before us.3. The main contention of the company is that the Appellate Tribunal erred in law in granting profit bonus for one month each for the years 1952 and 1953, when it was apparently of opinion that the accounts of the two years did not show any available surplus.It is contended that the grant of profit bonus depends upon the availability of surplus as worked out according to the Full Bench formula evolved in the Mill-Owners Association, Bombay v. Rashtria Mill Mazdoor Sangh, Bombay, 1959 Lab LJ 1247 (L A T I-Bom).That formula has been the subject of consideration by this Court recently in Associated Cement Companies Ltd., Dwarka v. Their Workmen, C. A. No. 459 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ) and has been approved.The Labour Appellate Tribunal, therefore, was not right when it decided to give one months bonus for these two years, irrespective of the availability of any surplus.4. Learned counsel for the respondents, however, submitted that the balance-sheet and the Profit and Loss Account filed by the company were not reliable and wanted to challenge various items in these accounts.We did not permit him to do so, because, in the first place, as held in The Associated Cement Companies case, C. A. No. 459 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ) the amount of gross profits taken from the profit and loss account should as a general rule, be accepted without submitting the statement to a close scrutiny, except where it appears that entries have been made on the debit side deliberately and mala fide to reduce the amount of gross profits,and, in the second place, no attempt was made to challenge any particular entry before the Industrial Tribunal as having been made mala fide to reduce the amount of gross profits.The only item which appears to have been canvassed before the Appellate Tribunal was the salary of the proprietor who also works as manager. But that item cannot in the circumstances be challenged, for the amount would have to be spent if any other person had been employed as a manager.In the circumstances, we must proceed on the assumption that the balance-sheets and the profit and loss accounts for the two years have to be accepted as correct.5. So far as the year 1952 is concerned, the accounts show that there was a surplus of Rs. 4,557.30. The monthly wage-bill is said to be into the neighbourhood of Rs. 4,000. In the circumstances we are of opinion that three weeks wages already paid by the company by way of bonus on the basis of the agreement of 27-11-1954, which was later on repudiated, were ample to meet the claim of profit bonus for that year and there was no case for increasing the amount beyond that. As for the year 1953, there was no available surplus at all and in the circumstances the Appellate Tribunal erred in granting bonus for that year. The appeal, therefore, will have to be allowed partly and the order of the Appellate Tribunal modified accordingly. | 1[ds]That formula has been the subject of consideration by this Court recently in Associated Cement Companies Ltd., Dwarka v. Their Workmen, C. A. No. 459 of 1957, D/(AIR 1959 SC 967 ) and has been approved.The Labour Appellate Tribunal, therefore, was not right when it decided to give one months bonus for these two years, irrespective of the availability of anydid not permit him to do so, because, in the first place, as held in The Associated Cement Companies case, C. A. No. 459 of 1957, D/(AIR 1959 SC 967 ) the amount of gross profits taken from the profit and loss account should as a general rule, be accepted without submitting the statement to a close scrutiny, except where it appears that entries have been made on the debit side deliberately and mala fide to reduce the amount of gross profits,and, in the second place, no attempt was made to challenge any particular entry before the Industrial Tribunal as having been made mala fide to reduce the amount of grossthe circumstances we are of opinion that three weeks wages already paid by the company by way of bonus on the basis of the agreement ofwhich was later on repudiated, were ample to meet the claim of profit bonus for that year and there was no case for increasing the amount beyond that. As for the year 1953, there was no available surplus at all and in the circumstances the Appellate Tribunal erred in granting bonus for that year. The appeal, therefore, will have to be allowed partly and the order of the Appellate Tribunal modified accordingly. | 1 | 973 | 303 | ### Instruction:
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K.N. Wanchoo, J.1. This is an appeal by special leave against the decision of the Labour Appellate Tribunal in an industrial matter. The appellant Messrs. Kapoor and Co. (hereinafter called the company) is an industrial concern engaged in manufacturing lace of all kinds. The respondents are the workmen employed by the company as represented by the Lace Workers Union, Delhi. An industrial dispute arose between the company and its workmen, and it was referred to the Industrial Tribunal by the Delhi State Government on 6-11-1954. Four matters were the subject of reference, of which only one has been urged in this appeal before us and we shall confine ourselves to that. It relates to the demand for profit bonus equal to two months wages for the years 1952 and 1953. It appears that soon after the reference reached the Industrial Tribunal, an agreement was arrived at on 27-11-1954 between the workmen represented by the union and the company on all the matters which were the subject of reference. So far as bonus was concerned, the agreement was that the company would pay three weeks wages by way of bonus for the year 1952 and that the question of bonus for the year 1953 would be settled later between the company and its workmen. This agreement was, however, repudiated by the workmen in December 1954 and in consequence the Industrial Tribunal proceeded to adjudicate upon the matter. By its award dated 8-8-1955, it held that no bonus could be paid for these two years as there was no available surplus of profit to justify it. It, however, expressed the hope that the company would not ask for the refund of three weeks wages already paid as bonus under the agreement and would grant that as an ex gratia payment to the workmen.2. There was an appeal by the workmen against this award to the Labour Appellate Tribunal, which was allowed and the workmen were ordered to be given one months salary as bonus for the years 1952 and 1953, irrespective of the fact that the accounts of the two years did not show any available surplus. Thereupon the company applied for special leave to appeal to this Court, which was granted; and that is how the matter has come before us.3. The main contention of the company is that the Appellate Tribunal erred in law in granting profit bonus for one month each for the years 1952 and 1953, when it was apparently of opinion that the accounts of the two years did not show any available surplus.It is contended that the grant of profit bonus depends upon the availability of surplus as worked out according to the Full Bench formula evolved in the Mill-Owners Association, Bombay v. Rashtria Mill Mazdoor Sangh, Bombay, 1959 Lab LJ 1247 (L A T I-Bom).That formula has been the subject of consideration by this Court recently in Associated Cement Companies Ltd., Dwarka v. Their Workmen, C. A. No. 459 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ) and has been approved.The Labour Appellate Tribunal, therefore, was not right when it decided to give one months bonus for these two years, irrespective of the availability of any surplus.4. Learned counsel for the respondents, however, submitted that the balance-sheet and the Profit and Loss Account filed by the company were not reliable and wanted to challenge various items in these accounts.We did not permit him to do so, because, in the first place, as held in The Associated Cement Companies case, C. A. No. 459 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ) the amount of gross profits taken from the profit and loss account should as a general rule, be accepted without submitting the statement to a close scrutiny, except where it appears that entries have been made on the debit side deliberately and mala fide to reduce the amount of gross profits,and, in the second place, no attempt was made to challenge any particular entry before the Industrial Tribunal as having been made mala fide to reduce the amount of gross profits.The only item which appears to have been canvassed before the Appellate Tribunal was the salary of the proprietor who also works as manager. But that item cannot in the circumstances be challenged, for the amount would have to be spent if any other person had been employed as a manager.In the circumstances, we must proceed on the assumption that the balance-sheets and the profit and loss accounts for the two years have to be accepted as correct.5. So far as the year 1952 is concerned, the accounts show that there was a surplus of Rs. 4,557.30. The monthly wage-bill is said to be into the neighbourhood of Rs. 4,000. In the circumstances we are of opinion that three weeks wages already paid by the company by way of bonus on the basis of the agreement of 27-11-1954, which was later on repudiated, were ample to meet the claim of profit bonus for that year and there was no case for increasing the amount beyond that. As for the year 1953, there was no available surplus at all and in the circumstances the Appellate Tribunal erred in granting bonus for that year. The appeal, therefore, will have to be allowed partly and the order of the Appellate Tribunal modified accordingly.
### Response:
1
### Explanation:
That formula has been the subject of consideration by this Court recently in Associated Cement Companies Ltd., Dwarka v. Their Workmen, C. A. No. 459 of 1957, D/(AIR 1959 SC 967 ) and has been approved.The Labour Appellate Tribunal, therefore, was not right when it decided to give one months bonus for these two years, irrespective of the availability of anydid not permit him to do so, because, in the first place, as held in The Associated Cement Companies case, C. A. No. 459 of 1957, D/(AIR 1959 SC 967 ) the amount of gross profits taken from the profit and loss account should as a general rule, be accepted without submitting the statement to a close scrutiny, except where it appears that entries have been made on the debit side deliberately and mala fide to reduce the amount of gross profits,and, in the second place, no attempt was made to challenge any particular entry before the Industrial Tribunal as having been made mala fide to reduce the amount of grossthe circumstances we are of opinion that three weeks wages already paid by the company by way of bonus on the basis of the agreement ofwhich was later on repudiated, were ample to meet the claim of profit bonus for that year and there was no case for increasing the amount beyond that. As for the year 1953, there was no available surplus at all and in the circumstances the Appellate Tribunal erred in granting bonus for that year. The appeal, therefore, will have to be allowed partly and the order of the Appellate Tribunal modified accordingly.
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FOOD CORPORATION OF INDIA Vs. HEAD LOAD LABOUR CONGRESS (REGN.NO.336/85) | Abhay Manohar Sapre, J. 1. These two appeals namely Civil Appeal No.10530 of 2011 and Civil Appeal No.7961 of 2014 are directed against the final judgment and order dated 15.02.2010 passed by High Court of Kerela in Writ Appeal No.249 of 2009 which arose out of order dated 22.09.2009 passed by Single Judge in O.P. No.14360 of 1999 and against another final order dated 20.03.2014 passed by the High Court of Kerala in Writ Appeal No.1746 of 2013 which arose out of an order dated 04.09.2013 passed by Single Judge in W. P. (C) No.14786 of 2013 respectively. 2. Though these appeals arise out of an order passed by the High Court of Kerala, but we find that these appeals also involve more or less the same point which we have dealt with in detail in our order passed today (20.08.2018) in Civil Appeal No.10499 of 2011, Civil Appeal No.10511 of 2011 (Food Corporation of India and Ors. v. Gen. Secretary, FCI India Employees Union and Ors.) which arose from the orders passed by the High Court of Madras. 3. The present two appeals appeals are filed by the FCI against the Workers Union of different branches, the only difference being that the Civil Appeal No.10499 of 2011 and Civil Appeal No.10511 of 2011 relate to employees working in Chennai Branch Office of FCI, whereas the present appeals (C.A. Nos.10530/2001 and 7961/2014) relate to employees working in depots at West Hills Mavelikkare and Chelakkudy in State of Kerala and, therefore, these appeals came to be decided by the High Court of Kerala. 4. In short, the facts of the present two appeals are that the writ petitions were filed by the workers Union against the appellant (FCI) seeking a mandamus against the appellant (FCI) directing them to implement the award (Ex.P-1) passed by the Industrial Tribunal, Chennai also in relation to the employees working in Branch offices at Kerala named above. 5. The said award (Ex.P-1) directed the FCI to give benefits of regularization of the workers in the services of the FCI consequent upon abolition of contract laborers system in relation to Branch office at Chennai. This award (Ex.P-1) was upheld by this Court and attained finality. 6. The High Court, by impugned order, allowed the writ petitions filed by the workers Union (respondents herein) and directed the FCI to give benefits of the said award to the members of the workers Union (respondent herein), who are working in two depots at Kerala finding no dissimilarity in two set of these cases. 7. We also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writ petitioners (respondents herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by the appellants on the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of the case. 8. Having regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against the appellant in relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders. | 0[ds]7. We also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writ petitioners (respondents herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by the appellants on the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of the case.8. Having regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against the appellant in relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders. | 0 | 651 | 177 | ### Instruction:
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Abhay Manohar Sapre, J. 1. These two appeals namely Civil Appeal No.10530 of 2011 and Civil Appeal No.7961 of 2014 are directed against the final judgment and order dated 15.02.2010 passed by High Court of Kerela in Writ Appeal No.249 of 2009 which arose out of order dated 22.09.2009 passed by Single Judge in O.P. No.14360 of 1999 and against another final order dated 20.03.2014 passed by the High Court of Kerala in Writ Appeal No.1746 of 2013 which arose out of an order dated 04.09.2013 passed by Single Judge in W. P. (C) No.14786 of 2013 respectively. 2. Though these appeals arise out of an order passed by the High Court of Kerala, but we find that these appeals also involve more or less the same point which we have dealt with in detail in our order passed today (20.08.2018) in Civil Appeal No.10499 of 2011, Civil Appeal No.10511 of 2011 (Food Corporation of India and Ors. v. Gen. Secretary, FCI India Employees Union and Ors.) which arose from the orders passed by the High Court of Madras. 3. The present two appeals appeals are filed by the FCI against the Workers Union of different branches, the only difference being that the Civil Appeal No.10499 of 2011 and Civil Appeal No.10511 of 2011 relate to employees working in Chennai Branch Office of FCI, whereas the present appeals (C.A. Nos.10530/2001 and 7961/2014) relate to employees working in depots at West Hills Mavelikkare and Chelakkudy in State of Kerala and, therefore, these appeals came to be decided by the High Court of Kerala. 4. In short, the facts of the present two appeals are that the writ petitions were filed by the workers Union against the appellant (FCI) seeking a mandamus against the appellant (FCI) directing them to implement the award (Ex.P-1) passed by the Industrial Tribunal, Chennai also in relation to the employees working in Branch offices at Kerala named above. 5. The said award (Ex.P-1) directed the FCI to give benefits of regularization of the workers in the services of the FCI consequent upon abolition of contract laborers system in relation to Branch office at Chennai. This award (Ex.P-1) was upheld by this Court and attained finality. 6. The High Court, by impugned order, allowed the writ petitions filed by the workers Union (respondents herein) and directed the FCI to give benefits of the said award to the members of the workers Union (respondent herein), who are working in two depots at Kerala finding no dissimilarity in two set of these cases. 7. We also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writ petitioners (respondents herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by the appellants on the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of the case. 8. Having regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against the appellant in relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders.
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### Explanation:
7. We also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writ petitioners (respondents herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by the appellants on the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of the case.8. Having regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against the appellant in relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders.
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The General Manager, Southern Railway Vs. Rangachari | that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression adequately represented imports considerations of "size" as well as "values," numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. If it is conceded that "posts" in the context refer to posts in the services and that selection posts in the services and that selection posts may be reserved but should be filled only in the manner suggested by the respondent then we see no reason for holding that the reservation of selection posts cannot be implemented by promoting suitable members of backward class of citizens to such posts as the circulars intend to do.27. We must in this connection consider an alternative argument that the word "posts" must refer not to selection posts but to posts filled by initial appointments. On this argument reservation of appointments means reservation of certain percentage in the initial appointments and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments themselves. On this construction the use of the word "posts" appears to be wholly redundant. In our opinion, having regard to the fact that we are construing the relevant expression reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment.This construction has the merit of interpreting the words "appointments" and "posts" in their broad and liberal sense and giving effect to the policy which is obviously the basis of; the provisions of Art. 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Art. 16 (4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution-makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. Our conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not fall within Art. 16 (4).28. It is true that in providing for the reservation of appointments or posts under Art. 16 (4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean same impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16 (4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration; but, in the present case, as we have already seen, the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside Art. 16 (4) because the posts referred to in the said Article are posts outside the cadre of services and in any case, do not include selection posts. Since, in our opinion, this assumption is not well founded we must hold that the impugned circulars are not unconstitutional.- | 0[ds]In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach trust be avoided. We must have regard to the nature of the fundamental right guaranteed and we must seek to ascertain the intention of the Constitution by construing the material words in a broad and general way. If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Art. 16 (1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in Art.16 (1).Similarly, appointment to any office which means appointment to an office like that of the Attorney-General or Comptroller and Auditor- General must mean not only the initial appointment to such an office but all the terms and conditions of service pertaining to the said office. What Art.16 (1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.15. This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more.Art.16 (1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that Art. 16 (1) guarantees is equality of opportunity to all citizens who enterthe narrow construction of Art.16 (1), even if such a discriminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by Art. 16 ( 1). Such a result could not obviously have been intended by the Constitution.In this connection it may be relevant to remember that Art. 16 (1) and (2) really give effect to the equality before law guaranteed by Art. 14 and to the prohibition of discrimination guaranteed by Art. 15 (1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of suchof the matters relating to employment in respect of which equality of opportunity has been guaranteed by Art. 16 (1) and (2) do not fall within the mischief of non-obstante clause in Art. 16 (4). For instance, it is not denied by the appellants that the conditions of service relating to employment such as salary increment, gratuity, pension and the age of super-annuation there can be no exception even in regard to the backward classes of citizens. In other words, these matters relating to employment are absolutely protected by the doctrine of equality of opportunity and they do not form the subject-matter of Art. 16 (4). That is why we have just observed that part of the ground covered by Art. 16 (1) and (2) is admittedly outside the scope of Art. 16 (4). The point in dispute is: Is promotion to a selection post which is included in Art. 16 (1) and (2) covered by Art. 16 (4) or is it not ? It is on this point that there is a sharp controversy between theour opinion, the answer to this question must be in the negative. The argument that legislative history about the use of the relevant words is decisively in favour of excluding service posts from the purview of Art. 16 (4) ignores the fact that there can be no legislative history for the provisions of Art. 16 (4) which have found a place in the Constitution for the first time. Besides, it is not correct to assume that even the legislative history shows that "posts" always and inevitably meant posts outside services though it may be conceded that in the majority of corresponding constitutional provisions they do refer to ex-serviceour opinion, it would, therefore, be unreasonable to treat the word "posts" as a term of art and to clothe it inexorably with the meaning of ex-cadre posts. It is the context in which the word "posts" is used which must determine itsthe main, if not the sole, reason given by the High Court in support of its conclusion does not appear to us to be well founded, and so Art. 16 (4) must be construed on the basis that both "appointments" and "posts" to which its operative clause refers are appointments and posts in the services under the State. Incidentally, we may repeat what we have already pointed out that the tenor of the judgment under appeal shows that if the High Court had construed the word "posts" as posts inside the services, it would not have issued the writ in favour of theany case reservation must work from the bottom and reservation cannot be permitted to allow direct appointment to selection posts as the impugned circulars seek to do. It may be conceded that reservation of appointments or posts may be made in the manner suggested by Mr. Kumaramangalam. It may also be assumed that giving retrospective effect to reservations may well cause heart-burning or dissatisfaction amongst the general class of employees and in that sense it would be an act of wisdom not to give effect to reservation retrospectively. But, with the propriety or the -wisdom of the policy underlying the circulars we are not directly concerned. Even if it be assumed that it would be open to the State to adopt the method suggested by Mr. Kumaramangalam to give effect to the power of reservation in order to make the representation of the backward classes adequate in its services does it follow that it is the only method permissible under Art. 16 (4) ? We are inclined to hold that the answer to this question cannot be in favour of the respondent. If it is conceded that selection posts can be reserved it is difficult to see how it would be open to the respondent to contend that these reserved selection posts must be filled only prospectively and not retrospectively. The concession that selection posts can be reserved on which the argument is based itself provides the answer to the argument that if the said posts can be reserved the reserved posts can be filled either prospectively or retrospectively. In adopting the latter course there can be no violation of the constitutional provision contained in Art. 16our opinion, having regard to the fact that we are construing the relevant expression reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment.This construction has the merit of interpreting the words "appointments" and "posts" in their broad and liberal sense and giving effect to the policy which is obviously the basis of; the provisions of Art. 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Art. 16 (4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution-makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. Our conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not fall within Art. 16 (4).28. It is true that in providing for the reservation of appointments or posts under Art. 16 (4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean same impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16 (4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration; but, in the present case, as we have already seen, the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside Art. 16 (4) because the posts referred to in the said Article are posts outside the cadre of services and in any case, do not include selection posts. Since, in our opinion, this assumption is not well founded we must hold that the impugned circulars are not unconstitutional.- | 0 | 7,257 | 2,105 | ### Instruction:
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that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression adequately represented imports considerations of "size" as well as "values," numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. If it is conceded that "posts" in the context refer to posts in the services and that selection posts in the services and that selection posts may be reserved but should be filled only in the manner suggested by the respondent then we see no reason for holding that the reservation of selection posts cannot be implemented by promoting suitable members of backward class of citizens to such posts as the circulars intend to do.27. We must in this connection consider an alternative argument that the word "posts" must refer not to selection posts but to posts filled by initial appointments. On this argument reservation of appointments means reservation of certain percentage in the initial appointments and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments themselves. On this construction the use of the word "posts" appears to be wholly redundant. In our opinion, having regard to the fact that we are construing the relevant expression reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment.This construction has the merit of interpreting the words "appointments" and "posts" in their broad and liberal sense and giving effect to the policy which is obviously the basis of; the provisions of Art. 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Art. 16 (4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution-makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. Our conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not fall within Art. 16 (4).28. It is true that in providing for the reservation of appointments or posts under Art. 16 (4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean same impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16 (4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration; but, in the present case, as we have already seen, the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside Art. 16 (4) because the posts referred to in the said Article are posts outside the cadre of services and in any case, do not include selection posts. Since, in our opinion, this assumption is not well founded we must hold that the impugned circulars are not unconstitutional.-
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### Explanation:
is the context in which the word "posts" is used which must determine itsthe main, if not the sole, reason given by the High Court in support of its conclusion does not appear to us to be well founded, and so Art. 16 (4) must be construed on the basis that both "appointments" and "posts" to which its operative clause refers are appointments and posts in the services under the State. Incidentally, we may repeat what we have already pointed out that the tenor of the judgment under appeal shows that if the High Court had construed the word "posts" as posts inside the services, it would not have issued the writ in favour of theany case reservation must work from the bottom and reservation cannot be permitted to allow direct appointment to selection posts as the impugned circulars seek to do. It may be conceded that reservation of appointments or posts may be made in the manner suggested by Mr. Kumaramangalam. It may also be assumed that giving retrospective effect to reservations may well cause heart-burning or dissatisfaction amongst the general class of employees and in that sense it would be an act of wisdom not to give effect to reservation retrospectively. But, with the propriety or the -wisdom of the policy underlying the circulars we are not directly concerned. Even if it be assumed that it would be open to the State to adopt the method suggested by Mr. Kumaramangalam to give effect to the power of reservation in order to make the representation of the backward classes adequate in its services does it follow that it is the only method permissible under Art. 16 (4) ? We are inclined to hold that the answer to this question cannot be in favour of the respondent. If it is conceded that selection posts can be reserved it is difficult to see how it would be open to the respondent to contend that these reserved selection posts must be filled only prospectively and not retrospectively. The concession that selection posts can be reserved on which the argument is based itself provides the answer to the argument that if the said posts can be reserved the reserved posts can be filled either prospectively or retrospectively. In adopting the latter course there can be no violation of the constitutional provision contained in Art. 16our opinion, having regard to the fact that we are construing the relevant expression reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment.This construction has the merit of interpreting the words "appointments" and "posts" in their broad and liberal sense and giving effect to the policy which is obviously the basis of; the provisions of Art. 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Art. 16 (4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution-makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. Our conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not fall within Art. 16 (4).28. It is true that in providing for the reservation of appointments or posts under Art. 16 (4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean same impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16 (4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16 (4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration; but, in the present case, as we have already seen, the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside Art. 16 (4) because the posts referred to in the said Article are posts outside the cadre of services and in any case, do not include selection posts. Since, in our opinion, this assumption is not well founded we must hold that the impugned circulars are not unconstitutional.-
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Maharashtra State Mining Corpn Vs. Sunil | passing of the order of termination and therefore the order of dismissal was invalid. The High Court was also of the view that this defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court accordingly set aside the order of termination. Since the respondent had already retired from service, the appellant was directed to reinstate the respondent notionally with effect from the date of termination in the same post and pay salaries up to the date of superannuation and to pay all retrial benefits after the date of superannuation. 4. Before us learned counsel appearing on behalf of the appellant has submitted that the High Courts decision was contrary to the decisions of this Court in Parmeshwari Prasad Gupta Vs. The Union of India 1973 (2) SCC 543 and High Court of Judicature for Rajasthan Vs. P.P. Singh and Anr. 2003 (4) SCC 239 . The respondent on the other hand submitted that the resolution of the Board was subsequent to the order of dismissal and, therefore, could not operate retrospectively. The respondent relied upon the decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer 1979 (4) SCC 289 in support of this contention. 5. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim Ratihabitio priori mandato aequiparatur namely a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore ratification assumes an invalid act which is retrospectively validated. 6. In Parmeshwari Prasad Gupta, the services of the General Manager of a company had been terminated by the Chairman of the Board of Directors pursuant to a resolution taken by the Board at a meeting. It was not disputed that that meeting had been improperly held and consequently the resolution passed terminating the services of the General Manager was invalid. However, a subsequent meeting had been held by the Board of Directors affirming the earlier resolution. The subsequent meeting had been properly convened. The Court held: Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorized to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953. 7. The view expressed has been recently approved in the case of High Court of Judicature for Rajasthan Vs.P.P. Singh (supra). 8. The same view has been expressed in several cases in other jurisdictions. Thus in Hartman vs. Hornsby (142 Mo 368, 44 SW 242, 244) it was said Ratification in the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorizedly performed in the first instance. 9. In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it. 10. Reliance on the decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer 1979 (4) SCC 289 by the respondent is misplaced. In that case, the appellant had been appointed by the Chief Electrical Engineer, the departmental head. He was removed from service by the Divisional Assistant Engineer. The question for determination was whether the appellant had been removed from the service by an authority subordinate to that which had appointed him in violation of Article 311(1) of the Constitution. Having considered the affidavits filed, the Court came to the conclusion that the appellant had been removed from the service by an officer who was subordinate in rank to the officer by whom he was appointed. The Divisional Assistant Engineer was, subsequent to the appellants appointment, given the power to make an appointment to the post which the appellant held. It was urged by the respondent State that he, therefore, had the power to remove all persons holding that post. The submission was rejected on the grounds first that the right under Article 311(1) is vested in an employee on the date of his appointment and that subsequent authorization of any subordinate officer would not confer the power on such subordinate officer to remove the employee. Secondly, merely because the subordinate officer was vested with the power to appoint would not make him equal in rank with the officer making the appointment. In other words, the Divisional Engineer did not cease to be subordinate to the Chief Electrical Engineer merely because the latters power to make appointment to the post had been delegated to him. 11. That was not a case of ratification but of empowerment subsequent to the operative date. The case is, therefore, distinguishable not only on facts but also on the law applicable. | 1[ds]5. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim Ratihabitio priori mandato aequiparatur namely a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore ratification assumes an invalid act which is retrospectively validated9. In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it11. That was not a case of ratification but of empowerment subsequent to the operative date. The case is, therefore, distinguishable not only on facts but also on the law applicable. | 1 | 1,624 | 223 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
passing of the order of termination and therefore the order of dismissal was invalid. The High Court was also of the view that this defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court accordingly set aside the order of termination. Since the respondent had already retired from service, the appellant was directed to reinstate the respondent notionally with effect from the date of termination in the same post and pay salaries up to the date of superannuation and to pay all retrial benefits after the date of superannuation. 4. Before us learned counsel appearing on behalf of the appellant has submitted that the High Courts decision was contrary to the decisions of this Court in Parmeshwari Prasad Gupta Vs. The Union of India 1973 (2) SCC 543 and High Court of Judicature for Rajasthan Vs. P.P. Singh and Anr. 2003 (4) SCC 239 . The respondent on the other hand submitted that the resolution of the Board was subsequent to the order of dismissal and, therefore, could not operate retrospectively. The respondent relied upon the decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer 1979 (4) SCC 289 in support of this contention. 5. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim Ratihabitio priori mandato aequiparatur namely a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore ratification assumes an invalid act which is retrospectively validated. 6. In Parmeshwari Prasad Gupta, the services of the General Manager of a company had been terminated by the Chairman of the Board of Directors pursuant to a resolution taken by the Board at a meeting. It was not disputed that that meeting had been improperly held and consequently the resolution passed terminating the services of the General Manager was invalid. However, a subsequent meeting had been held by the Board of Directors affirming the earlier resolution. The subsequent meeting had been properly convened. The Court held: Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorized to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953. 7. The view expressed has been recently approved in the case of High Court of Judicature for Rajasthan Vs.P.P. Singh (supra). 8. The same view has been expressed in several cases in other jurisdictions. Thus in Hartman vs. Hornsby (142 Mo 368, 44 SW 242, 244) it was said Ratification in the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorizedly performed in the first instance. 9. In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it. 10. Reliance on the decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer 1979 (4) SCC 289 by the respondent is misplaced. In that case, the appellant had been appointed by the Chief Electrical Engineer, the departmental head. He was removed from service by the Divisional Assistant Engineer. The question for determination was whether the appellant had been removed from the service by an authority subordinate to that which had appointed him in violation of Article 311(1) of the Constitution. Having considered the affidavits filed, the Court came to the conclusion that the appellant had been removed from the service by an officer who was subordinate in rank to the officer by whom he was appointed. The Divisional Assistant Engineer was, subsequent to the appellants appointment, given the power to make an appointment to the post which the appellant held. It was urged by the respondent State that he, therefore, had the power to remove all persons holding that post. The submission was rejected on the grounds first that the right under Article 311(1) is vested in an employee on the date of his appointment and that subsequent authorization of any subordinate officer would not confer the power on such subordinate officer to remove the employee. Secondly, merely because the subordinate officer was vested with the power to appoint would not make him equal in rank with the officer making the appointment. In other words, the Divisional Engineer did not cease to be subordinate to the Chief Electrical Engineer merely because the latters power to make appointment to the post had been delegated to him. 11. That was not a case of ratification but of empowerment subsequent to the operative date. The case is, therefore, distinguishable not only on facts but also on the law applicable.
### Response:
1
### Explanation:
5. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently rectified by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim Ratihabitio priori mandato aequiparatur namely a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore ratification assumes an invalid act which is retrospectively validated9. In the present case, the Managing Directors order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it11. That was not a case of ratification but of empowerment subsequent to the operative date. The case is, therefore, distinguishable not only on facts but also on the law applicable.
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G.N. Verma Vs. State of Jharkhand & Another | Section 141 is a penal provision creating a vicarious liability. It was held as follows: "It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability." It was then concluded: "The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction." 20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed Agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the rules, regulations, orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out.21. The other remaining question would be whether G.N. Verma could be deemed to be an Agent of the mine.22. Regulation 8-A of the Coal Mines Regulations requires the owner of a mine to submit in writing a statement showing the name and designation of every person authorised to act on behalf of the owner in respect of the management, control, supervision or direction of a mine. There is nothing on record to show that any such statement was furnished by the owner of the mine to the Chief Inspector or the Regional Inspector appointed under the Act. Only a person who is authorised to act on behalf of the owner or purports to act on behalf of the owner may be deemed to be an Agent. In the absence of any statement having been made or any indication having been given by the owner enabling G.N. Verma to act or purport to act on his behalf, it cannot be said that he was a deemed Agent for the mine. 23. The word mine has been defined in Section 2 (j) of the Act and it has no reference to any administrative functions in relation to a mine but only technical matters related thereto. [Section 2. Definitions (j) "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes-(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oilfields;(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;(iii) all levels and inclined planes in the course of being driven;(iv) all open cast workings;(v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine; (vii) all protective works being carried out in or adjacent to a mine;(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;(ix) all power stations, transformer sub-stations, convertor stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on;] G.N. Verma was the Chief General Manager of the Karkata Colliery and it is not possible to assume that apart from performing administrative duties, he was also involved in technical matters related to the mine having the Bukbuka seam. 24. The law is well settled by a series of decisions beginning with the Constitution Bench decision in W.H. King v. Republic of India [(1952) SCR 418] that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. This view has been consistently adopted by this Court over the last more than sixty years.25. On the facts of this case, we would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72-B of the Act against G.N. Verma.Conclusion | 1[ds]20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed Agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the rules, regulations, orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out.21. The other remaining question would be whether G.N. Verma could be deemed to be an Agent of the mine.22. Regulation 8-A of the Coal Mines Regulations requires the owner of a mine to submit in writing a statement showing the name and designation of every person authorised to act on behalf of the owner in respect of the management, control, supervision or direction of a mine. There is nothing on record to show that any such statement was furnished by the owner of the mine to the Chief Inspector or the Regional Inspector appointed under the Act. Only a person who is authorised to act on behalf of the owner or purports to act on behalf of the owner may be deemed to be an Agent. In the absence of any statement having been made or any indication having been given by the owner enabling G.N. Verma to act or purport to act on his behalf, it cannot be said that he was a deemed Agent for the mine.The law is well settled by a series of decisions beginning with the Constitution Bench decision in W.H. King v. Republic of India [(1952) SCR 418] that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. This view has been consistently adopted by this Court over the last more than sixty years.25. On the facts of this case, we would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72-B of the Act against G.N. Verma. | 1 | 3,744 | 513 | ### Instruction:
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Section 141 is a penal provision creating a vicarious liability. It was held as follows: "It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability." It was then concluded: "The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction." 20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed Agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the rules, regulations, orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out.21. The other remaining question would be whether G.N. Verma could be deemed to be an Agent of the mine.22. Regulation 8-A of the Coal Mines Regulations requires the owner of a mine to submit in writing a statement showing the name and designation of every person authorised to act on behalf of the owner in respect of the management, control, supervision or direction of a mine. There is nothing on record to show that any such statement was furnished by the owner of the mine to the Chief Inspector or the Regional Inspector appointed under the Act. Only a person who is authorised to act on behalf of the owner or purports to act on behalf of the owner may be deemed to be an Agent. In the absence of any statement having been made or any indication having been given by the owner enabling G.N. Verma to act or purport to act on his behalf, it cannot be said that he was a deemed Agent for the mine. 23. The word mine has been defined in Section 2 (j) of the Act and it has no reference to any administrative functions in relation to a mine but only technical matters related thereto. [Section 2. Definitions (j) "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes-(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oilfields;(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;(iii) all levels and inclined planes in the course of being driven;(iv) all open cast workings;(v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine; (vii) all protective works being carried out in or adjacent to a mine;(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;(ix) all power stations, transformer sub-stations, convertor stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on;] G.N. Verma was the Chief General Manager of the Karkata Colliery and it is not possible to assume that apart from performing administrative duties, he was also involved in technical matters related to the mine having the Bukbuka seam. 24. The law is well settled by a series of decisions beginning with the Constitution Bench decision in W.H. King v. Republic of India [(1952) SCR 418] that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. This view has been consistently adopted by this Court over the last more than sixty years.25. On the facts of this case, we would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72-B of the Act against G.N. Verma.Conclusion
### Response:
1
### Explanation:
20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed Agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the rules, regulations, orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out.21. The other remaining question would be whether G.N. Verma could be deemed to be an Agent of the mine.22. Regulation 8-A of the Coal Mines Regulations requires the owner of a mine to submit in writing a statement showing the name and designation of every person authorised to act on behalf of the owner in respect of the management, control, supervision or direction of a mine. There is nothing on record to show that any such statement was furnished by the owner of the mine to the Chief Inspector or the Regional Inspector appointed under the Act. Only a person who is authorised to act on behalf of the owner or purports to act on behalf of the owner may be deemed to be an Agent. In the absence of any statement having been made or any indication having been given by the owner enabling G.N. Verma to act or purport to act on his behalf, it cannot be said that he was a deemed Agent for the mine.The law is well settled by a series of decisions beginning with the Constitution Bench decision in W.H. King v. Republic of India [(1952) SCR 418] that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. This view has been consistently adopted by this Court over the last more than sixty years.25. On the facts of this case, we would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72-B of the Act against G.N. Verma.
|
State of U.P Vs. Sahrunnisa & Another | to 12:30 and wondering as to why the Azaan was being made he and one Shafi reached the house of A-1. He actually claimed that the daughter of A-1, Shakila (A-2) was beating one boy with a pipe and at that time Siraj Khan and wife of Abdul Hafiz Khan were also present. He has attributed a specific role to Abdul Hafiz Khan by claiming that he strangulated the boy and the boy died and he got frightened and, therefore, ran away. The witness, therefore, has not assigned any role to the respondents herein, excepting that they were present. There is hardly anything in his cross-examination which raises any doubt about the role played by A-1 and A-2 and all that can be said that he merely referred to the presence of the respondents herein. The other witness was Kamal Singh, Investigating Officer (PW-7) who had visited the house after registering the offence. His claim is that when he reached he saw the dead bodies of two boys lying on the cot and A-1 and A-2 were in the process of strangulating the third boy. He however, claimed that the two respondents were holding the legs of the third boy Shaukat Ali. He arrested the accused. Thus, only this witness had attributed a specific role to the respondents. 8. Ordinarily, there was no reason not to accept this version against the present respondents. However, the High Court has noted that he had not mentioned in the Panchnama that the two respondents had also held the legs of Shaukat Ali. In the absence of any role attributed to these respondents by Ram Hujur Yadav (PW-3), Habib Ullah (PW-4) the High Court did not feel safe in accepting the version of this witness, particularly, against the respondents and, therefore, the High Court has awarded the benefit of doubt to these two witnesses. The High Court also reasoned further that it may be that these two respondents were afraid of the first accused and, therefore, they were mere mute spectators to the sordid drama that was being performed there. 9. There can be no dispute that these two respondents were present and indeed their mere presence by itself cannot be of criminal nature in the sense that by their mere presence a common intention can not be attributed to them. Indeed, they have not done anything. No overt act is attributed to them though it was tried to be claimed by one of the witnesses that when the police party reached that they were standing on one leg. This also appears to be a tall claim without any basis and the High Court has rightly not believed this story which was tried to be introduced.10. The question, therefore, is as to whether by their mere presence these two respondents could be attributed with the common intention. The answer is clearly in the negative. There can be no dispute that the spectre of superstition had affected the psyche of all these accused persons. The case of the Shahrunnisa (A-3) is one of a Mohammedan lady whose husband and daughter were overpowered by the superstitious belief. The force of the superstition was so overpowering that A-1 and A-2 probably were convinced of the non-existent supernatural powers of A-2. A poor Mohammedan lady coming from the humble background, whose husband and whose daughter claimed these powers could not have ordinarily opposed which was being done and, therefore, had to see with open eyes the death of her two sons. We do not think that her not opposing the gruesome acts speaks in favour of her nurturing the common intention. The High Court was undoubtedly right that she could be afraid of A-1 and A-2 has she herself might be under the superstitious psyche.11. It is bane of the Indian society that in search of some worldly gains, the society becomes superstitious and blindly follows the path which leads only to desolation. Number of lives are lost and number of families are destroyed because of this false belief in the so-called black magic and so-called supernatural powers. All this is a result of the total lack of education and human avarice. It is for this reason that we agree with the findings of the High Court. Even the case of the 4th respondent is no different. True it is that he was a police Constable, but the fact is that he has not committed any overt acts. Again it is his own wife who claimed all the supernatural powers and went on to commit the horrible acts of un-paralleled cruelty against the two innocent boys. True it is that it was his duty to stop the crime from being committed but inaction on his part would not by itself make him join the company of the guilty accused. This is apart from the fact that he has not been asked about his duty in his examination. In fact, the whole prosecution is strangely silent about the aspect of Section 221 IPC nor was such charge ever levelled against him.12. We are dealing with an appeal against acquittal where the law so far crystallized desists us from fact finding exercise. Though, the whole evidence is open for us to appreciate the finding of acquittal that too by the High Court has to be given its own weight. We have, therefore, gone through the evidence ourselves only to find that the evidence against the two respondents is not clinching enough and it cannot be said that the finding of the High Court is perverse or such as cannot be reached after reasonable and careful survey of the evidence. A suspicion by itself cannot take place of the proof muchless in an appeal against acquittal. The law requires hard facts duly proved by admissible and truthful evidence. In a case where the High Court has recorded the finding of acquittal giving benefit of doubt, unless such a finding was an impossible one, the interference at this stage is not feasible. | 0[ds]The answer is clearly in the negative. There can be no dispute that the spectre of superstition had affected the psyche of all these accused persons. The case of the Shahrunnisais one of a Mohammedan lady whose husband and daughter were overpowered by the superstitious belief. The force of the superstition was so overpowering thatprobably were convinced of thesupernatural powers ofA poor Mohammedan lady coming from the humble background, whose husband and whose daughter claimed these powers could not have ordinarily opposed which was being done and, therefore, had to see with open eyes the death of her two sons. We do not think that her not opposing the gruesome acts speaks in favour of her nurturing the common intention. The High Court was undoubtedly right that she could be afraid ofhas she herself might be under the superstitious psyche.11. It is bane of the Indian society that in search of some worldly gains, the society becomes superstitious and blindly follows the path which leads only to desolation. Number of lives are lost and number of families are destroyed because of this false belief in theblack magic andsupernatural powers. All this is a result of the total lack of education and human avarice. It is for this reason that we agree with the findings of the High Court. Even the case of the 4th respondent is no different. True it is that he was a police Constable, but the fact is that he has not committed any overt acts. Again it is his own wife who claimed all the supernatural powers and went on to commit the horrible acts ofcruelty against the two innocent boys. True it is that it was his duty to stop the crime from being committed but inaction on his part would not by itself make him join the company of the guilty accused. This is apart from the fact that he has not been asked about his duty in his examination. In fact, the whole prosecution is strangely silent about the aspect of Section 221 IPC nor was such charge ever levelled against him.12. We are dealing with an appeal against acquittal where the law so far crystallized desists us from fact finding exercise. Though, the whole evidence is open for us to appreciate the finding of acquittal that too by the High Court has to be given its own weight. We have, therefore, gone through the evidence ourselves only to find that the evidence against the two respondents is not clinching enough and it cannot be said that the finding of the High Court is perverse or such as cannot be reached after reasonable and careful survey of the evidence. A suspicion by itself cannot take place of the proof muchless in an appeal against acquittal. The law requires hard facts duly proved by admissible and truthful evidence. In a case where the High Court has recorded the finding of acquittal giving benefit of doubt, unless such a finding was an impossible one, the interference at this stage is not feasible. | 0 | 2,689 | 547 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
to 12:30 and wondering as to why the Azaan was being made he and one Shafi reached the house of A-1. He actually claimed that the daughter of A-1, Shakila (A-2) was beating one boy with a pipe and at that time Siraj Khan and wife of Abdul Hafiz Khan were also present. He has attributed a specific role to Abdul Hafiz Khan by claiming that he strangulated the boy and the boy died and he got frightened and, therefore, ran away. The witness, therefore, has not assigned any role to the respondents herein, excepting that they were present. There is hardly anything in his cross-examination which raises any doubt about the role played by A-1 and A-2 and all that can be said that he merely referred to the presence of the respondents herein. The other witness was Kamal Singh, Investigating Officer (PW-7) who had visited the house after registering the offence. His claim is that when he reached he saw the dead bodies of two boys lying on the cot and A-1 and A-2 were in the process of strangulating the third boy. He however, claimed that the two respondents were holding the legs of the third boy Shaukat Ali. He arrested the accused. Thus, only this witness had attributed a specific role to the respondents. 8. Ordinarily, there was no reason not to accept this version against the present respondents. However, the High Court has noted that he had not mentioned in the Panchnama that the two respondents had also held the legs of Shaukat Ali. In the absence of any role attributed to these respondents by Ram Hujur Yadav (PW-3), Habib Ullah (PW-4) the High Court did not feel safe in accepting the version of this witness, particularly, against the respondents and, therefore, the High Court has awarded the benefit of doubt to these two witnesses. The High Court also reasoned further that it may be that these two respondents were afraid of the first accused and, therefore, they were mere mute spectators to the sordid drama that was being performed there. 9. There can be no dispute that these two respondents were present and indeed their mere presence by itself cannot be of criminal nature in the sense that by their mere presence a common intention can not be attributed to them. Indeed, they have not done anything. No overt act is attributed to them though it was tried to be claimed by one of the witnesses that when the police party reached that they were standing on one leg. This also appears to be a tall claim without any basis and the High Court has rightly not believed this story which was tried to be introduced.10. The question, therefore, is as to whether by their mere presence these two respondents could be attributed with the common intention. The answer is clearly in the negative. There can be no dispute that the spectre of superstition had affected the psyche of all these accused persons. The case of the Shahrunnisa (A-3) is one of a Mohammedan lady whose husband and daughter were overpowered by the superstitious belief. The force of the superstition was so overpowering that A-1 and A-2 probably were convinced of the non-existent supernatural powers of A-2. A poor Mohammedan lady coming from the humble background, whose husband and whose daughter claimed these powers could not have ordinarily opposed which was being done and, therefore, had to see with open eyes the death of her two sons. We do not think that her not opposing the gruesome acts speaks in favour of her nurturing the common intention. The High Court was undoubtedly right that she could be afraid of A-1 and A-2 has she herself might be under the superstitious psyche.11. It is bane of the Indian society that in search of some worldly gains, the society becomes superstitious and blindly follows the path which leads only to desolation. Number of lives are lost and number of families are destroyed because of this false belief in the so-called black magic and so-called supernatural powers. All this is a result of the total lack of education and human avarice. It is for this reason that we agree with the findings of the High Court. Even the case of the 4th respondent is no different. True it is that he was a police Constable, but the fact is that he has not committed any overt acts. Again it is his own wife who claimed all the supernatural powers and went on to commit the horrible acts of un-paralleled cruelty against the two innocent boys. True it is that it was his duty to stop the crime from being committed but inaction on his part would not by itself make him join the company of the guilty accused. This is apart from the fact that he has not been asked about his duty in his examination. In fact, the whole prosecution is strangely silent about the aspect of Section 221 IPC nor was such charge ever levelled against him.12. We are dealing with an appeal against acquittal where the law so far crystallized desists us from fact finding exercise. Though, the whole evidence is open for us to appreciate the finding of acquittal that too by the High Court has to be given its own weight. We have, therefore, gone through the evidence ourselves only to find that the evidence against the two respondents is not clinching enough and it cannot be said that the finding of the High Court is perverse or such as cannot be reached after reasonable and careful survey of the evidence. A suspicion by itself cannot take place of the proof muchless in an appeal against acquittal. The law requires hard facts duly proved by admissible and truthful evidence. In a case where the High Court has recorded the finding of acquittal giving benefit of doubt, unless such a finding was an impossible one, the interference at this stage is not feasible.
### Response:
0
### Explanation:
The answer is clearly in the negative. There can be no dispute that the spectre of superstition had affected the psyche of all these accused persons. The case of the Shahrunnisais one of a Mohammedan lady whose husband and daughter were overpowered by the superstitious belief. The force of the superstition was so overpowering thatprobably were convinced of thesupernatural powers ofA poor Mohammedan lady coming from the humble background, whose husband and whose daughter claimed these powers could not have ordinarily opposed which was being done and, therefore, had to see with open eyes the death of her two sons. We do not think that her not opposing the gruesome acts speaks in favour of her nurturing the common intention. The High Court was undoubtedly right that she could be afraid ofhas she herself might be under the superstitious psyche.11. It is bane of the Indian society that in search of some worldly gains, the society becomes superstitious and blindly follows the path which leads only to desolation. Number of lives are lost and number of families are destroyed because of this false belief in theblack magic andsupernatural powers. All this is a result of the total lack of education and human avarice. It is for this reason that we agree with the findings of the High Court. Even the case of the 4th respondent is no different. True it is that he was a police Constable, but the fact is that he has not committed any overt acts. Again it is his own wife who claimed all the supernatural powers and went on to commit the horrible acts ofcruelty against the two innocent boys. True it is that it was his duty to stop the crime from being committed but inaction on his part would not by itself make him join the company of the guilty accused. This is apart from the fact that he has not been asked about his duty in his examination. In fact, the whole prosecution is strangely silent about the aspect of Section 221 IPC nor was such charge ever levelled against him.12. We are dealing with an appeal against acquittal where the law so far crystallized desists us from fact finding exercise. Though, the whole evidence is open for us to appreciate the finding of acquittal that too by the High Court has to be given its own weight. We have, therefore, gone through the evidence ourselves only to find that the evidence against the two respondents is not clinching enough and it cannot be said that the finding of the High Court is perverse or such as cannot be reached after reasonable and careful survey of the evidence. A suspicion by itself cannot take place of the proof muchless in an appeal against acquittal. The law requires hard facts duly proved by admissible and truthful evidence. In a case where the High Court has recorded the finding of acquittal giving benefit of doubt, unless such a finding was an impossible one, the interference at this stage is not feasible.
|
State Of Tamil Nadu Vs. M. Krishnappan | convenient and at the same time, it is also beneficial to the users of the vehicles who do not have to go to the office of the RTO every year to pay the annual taxes. It is also beneficial to the users of the motor vehicles, as they do not have to pay taxes at the increased rates from time to time over the economic life of vehicle as contemplated by section 3(2) of the Act. Moreover, weight alone may not provide a sufficient parameter/basis for imposition of life time tax. As an illustration, we may point out that the weight of the Honda CRV Car is 1500 kg. as against the weight of Tata Indigo GLX which weighs 1490 kg. and yet the cost of Honda CRV is Rs. 15,24,396 lacs whereas the price of Tata Indigo is 5.08,651 lacs. Hence, weight index alone may not constitute the basis of life time tax.23. In the circumstances, we reiterate that introduction of weight-cum-value index will not make the levy non-regulatory/non-compensatory. Further, under the unamended 1974 Act, weight was the basis of the impugned levy as an annual tax. But with the introduction of a life time tax, the entire future projection spread over the economic life of the vehicle had to be taken into account along with other factors like fall in the value of the rupee, inflation, rising costs of the material, cross subsidy etc. and consequently, it was necessary to introduce the new index of weight-cum-value and factors like paying capacity of the owner. In our view, these factors have nexus with the use of the roads over a period of time and hence, the impugned levy fell within entry 57 list-II of the seventh schedule to the Constitution.24. We also do not find the the impugned levy to be discriminatory, arbitrary or unreasonable so as to violate article 14 of the Constitution as held by the High Court. In the case of Municipal Corporation of the City of Ahmedabad & others vs. Jan Mohammed Usmanbhai and another reported in (1986) 3 SCC 20 ), this Court held that article 14 forbids class legislation and not reasonable classification and in order to pass the test of reasonable classification, the classification must be founded on an intelligible differentia which distinguishes persons or class or persons that are grouped together from the others left out of that group and that such differentia must have a rational relation to the object sought to be achieved by the statute in question. 25. In the case of The State of Gujarat & another etc. vs. Shri Ambica Mills Ltd., Ahmedabad and another etc. reported in (1974) 4 SCC 656 , this Court held that where size is an index, discrimination between large the and small is permissible. Article 14 does not require that every regulatory statute should apply to each and everyone equally in the same business. 26. Similarly, in the case of State of Maharashtra vs. Madhukar Balkrishna Badiya (supra), this Court has held that taxing of a company owned vehicle at three times the rate payable by an individual owner did not make the enactment violative of article 14 as the Legislature had the power to distribute the tax burden in a flexible manner and the Court would not interfere with the same. 27. There is no merit in the contention advanced on behalf of the respondent herein that there is violation of article 14 of the Constitution by imposing higher burden of tax on vehicles owned by others vis-a-vis the vehicles owned by the individuals in part-I of the third schedule. We do not find merit in this argument. Firstly, as held by this Court in the case of Bombay Tyre (supra), levy is a constitutional concept, whereas collection of a tax as well as incidence of tax comes within the statutory measure. The mode of collection or the incidence of tax cannot be the conclusive test to decide the nature of the levy. The nature of the levy is a concept different from the mode of collection of tax. Levy is a constitutional concept whereas mode of collection of tax is a statutory concept. They stand on different footings. Secondly, it is important to remember the words of Lord Wilberforce, quoted with approval by House of Lords in the case of Barclays Mercantile Business Finance Ltd. vs. Mawson (Inspector of Taxes) reported in (2005) 1 All ER 97 stating that "a tax is generally imposed by reference to economic activities or transactions which exist in the real world". When an economic activity is to be valued, it is open to the law maker to take into account various factors including the paying capacity of the user, the value of the vehicle, the economic life of the vehicle etc. Lastly, in the present case, for the vehicles registered before 1.7.1998 the option between annual and one time tax is retained. 28. Before concluding, we may quote the observations of the Division Bench of the Kerala High Court in the case of Anas vs. State of Kerala reported in 1999(3) KLT 147 (to which one of us, Dr. AR. Lakshmanan, J., was a party), which state as under:- "A taxing statute can be held to contravene Article 14 of the Constitution only if it purports to impose on the same class of property similarly situated an incidence of taxation which leads to obvious inequality. It is for the Legislature to decide on what objects to levy what rate of tax and it is not for the Courts to consider whether some other objects should have been taxed or whether a different rate should have been prescribed for the tax. It is also to be noted that the Legislature is competent to classify persons or properties into different categories and tax them differently, and if the classification thus made is rational, the taxing statute cannot be challenged merely because different rates of taxation are prescribed for different categories of persons or objects." | 1[ds]14. A bare reading of the aforestated schedule shows the introduction of weight-cum-value index as the basis for payment of life time tax that there is an in-built rationalization of the rates according to the status of the holder (payment capacity) and the nature of the vehicle (Indian and imported cars). Such a rationalization of rates conceptually has been accepted by the Court in the case of Union of India & others vs. Bombay Tyre International Ltd. reported in AIR 1984 SC 420 , in which it has been held that any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy.It is well to remember that the State maintains old roads and makes new ones. These roads are at the disposal of those who use motor vehicles either for private purpose or for trade or commerce. India is a cost-push economy. It has high rate of inflation. The costs of maintenance as well as the costs of material used in the maintenance of the roads increases by the day. This naturally costs the State, which has to find funds for making new roads, and for maintenance of those that are in existence. The impugned tax is regulatory and compensatory in nature in the sense that it is imposed to meet the increasing costs of maintenance and upkeep and to that extent it is not plenary. However, as stated above, the limited question is: whether the tax ceases to be compensatory and regulatory with the introduction of weight-cum-value index and whether the said index is contrary to the scheme of the said 1974 Act.In the present case, we are satisfied that the levy in question being one time tax continues to be a part of regulatory measure. For administrative reasons, in the matter of collection of tax, one time payment of tax is administratively convenient and at the same time, it is also beneficial to the users of the vehicles who do not have to go to the office of the RTO every year to pay the annual taxes. It is also beneficial to the users of the motor vehicles, as they do not have to pay taxes at the increased rates from time to time over the economic life of vehicle as contemplated by section 3(2) of the Act. Moreover, weight alone may not provide a sufficient parameter/basis for imposition of life time tax. As an illustration, we may point out that the weight of the Honda CRV Car is 1500 kg. as against the weight of Tata Indigo GLX which weighs 1490 kg. and yet the cost of Honda CRV is Rs. 15,24,396 lacs whereas the price of Tata Indigo is 5.08,651 lacs. Hence, weight index alone may not constitute the basis of life time tax.23. In the circumstances, we reiterate that introduction of weight-cum-value index will not make the levy non-regulatory/non-compensatory. Further, under the unamended 1974 Act, weight was the basis of the impugned levy as an annual tax. But with the introduction of a life time tax, the entire future projection spread over the economic life of the vehicle had to be taken into account along with other factors like fall in the value of the rupee, inflation, rising costs of the material, cross subsidy etc. and consequently, it was necessary to introduce the new index of weight-cum-value and factors like paying capacity of the owner. In our view, these factors have nexus with the use of the roads over a period of time and hence, the impugned levy fell within entry 57 list-II of the seventh schedule to the Constitution.24. We also do not find the the impugned levy to be discriminatory, arbitrary or unreasonable so as to violate article 14 of the Constitution as held by the High Court. In the case of Municipal Corporation of the City of Ahmedabad & others vs. Jan Mohammed Usmanbhai and another reported in (1986) 3 SCC 20 ), this Court held that article 14 forbids class legislation and not reasonable classification and in order to pass the test of reasonable classification, the classification must be founded on an intelligible differentia which distinguishes persons or class or persons that are grouped together from the others left out of that group and that such differentia must have a rational relation to the object sought to be achieved by the statute in question.There is no merit in the contention advanced on behalf of the respondent herein that there is violation of article 14 of the Constitution by imposing higher burden of tax on vehicles owned by others vis-a-vis the vehicles owned by the individuals in part-I of the third schedule. We do not find merit in this argument. Firstly, as held by this Court in the case of Bombay Tyre (supra), levy is a constitutional concept, whereas collection of a tax as well as incidence of tax comes within the statutory measure. The mode of collection or the incidence of tax cannot be the conclusive test to decide the nature of the levy. The nature of the levy is a concept different from the mode of collection of tax. Levy is a constitutional concept whereas mode of collection of tax is a statutory concept. They stand on different footings. Secondly, it is important to remember the words of Lord Wilberforce, quoted with approval by House of Lords in the case of Barclays Mercantile Business Finance Ltd. vs. Mawson (Inspector of Taxes) reported in (2005) 1 All ER 97 stating that "a tax is generally imposed by reference to economic activities or transactions which exist in the real world". When an economic activity is to be valued, it is open to the law maker to take into account various factors including the paying capacity of the user, the value of the vehicle, the economic life of the vehicle etc. Lastly, in the present case, for the vehicles registered before 1.7.1998 the option between annual and one time tax is retained. | 1 | 4,708 | 1,097 | ### 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:
convenient and at the same time, it is also beneficial to the users of the vehicles who do not have to go to the office of the RTO every year to pay the annual taxes. It is also beneficial to the users of the motor vehicles, as they do not have to pay taxes at the increased rates from time to time over the economic life of vehicle as contemplated by section 3(2) of the Act. Moreover, weight alone may not provide a sufficient parameter/basis for imposition of life time tax. As an illustration, we may point out that the weight of the Honda CRV Car is 1500 kg. as against the weight of Tata Indigo GLX which weighs 1490 kg. and yet the cost of Honda CRV is Rs. 15,24,396 lacs whereas the price of Tata Indigo is 5.08,651 lacs. Hence, weight index alone may not constitute the basis of life time tax.23. In the circumstances, we reiterate that introduction of weight-cum-value index will not make the levy non-regulatory/non-compensatory. Further, under the unamended 1974 Act, weight was the basis of the impugned levy as an annual tax. But with the introduction of a life time tax, the entire future projection spread over the economic life of the vehicle had to be taken into account along with other factors like fall in the value of the rupee, inflation, rising costs of the material, cross subsidy etc. and consequently, it was necessary to introduce the new index of weight-cum-value and factors like paying capacity of the owner. In our view, these factors have nexus with the use of the roads over a period of time and hence, the impugned levy fell within entry 57 list-II of the seventh schedule to the Constitution.24. We also do not find the the impugned levy to be discriminatory, arbitrary or unreasonable so as to violate article 14 of the Constitution as held by the High Court. In the case of Municipal Corporation of the City of Ahmedabad & others vs. Jan Mohammed Usmanbhai and another reported in (1986) 3 SCC 20 ), this Court held that article 14 forbids class legislation and not reasonable classification and in order to pass the test of reasonable classification, the classification must be founded on an intelligible differentia which distinguishes persons or class or persons that are grouped together from the others left out of that group and that such differentia must have a rational relation to the object sought to be achieved by the statute in question. 25. In the case of The State of Gujarat & another etc. vs. Shri Ambica Mills Ltd., Ahmedabad and another etc. reported in (1974) 4 SCC 656 , this Court held that where size is an index, discrimination between large the and small is permissible. Article 14 does not require that every regulatory statute should apply to each and everyone equally in the same business. 26. Similarly, in the case of State of Maharashtra vs. Madhukar Balkrishna Badiya (supra), this Court has held that taxing of a company owned vehicle at three times the rate payable by an individual owner did not make the enactment violative of article 14 as the Legislature had the power to distribute the tax burden in a flexible manner and the Court would not interfere with the same. 27. There is no merit in the contention advanced on behalf of the respondent herein that there is violation of article 14 of the Constitution by imposing higher burden of tax on vehicles owned by others vis-a-vis the vehicles owned by the individuals in part-I of the third schedule. We do not find merit in this argument. Firstly, as held by this Court in the case of Bombay Tyre (supra), levy is a constitutional concept, whereas collection of a tax as well as incidence of tax comes within the statutory measure. The mode of collection or the incidence of tax cannot be the conclusive test to decide the nature of the levy. The nature of the levy is a concept different from the mode of collection of tax. Levy is a constitutional concept whereas mode of collection of tax is a statutory concept. They stand on different footings. Secondly, it is important to remember the words of Lord Wilberforce, quoted with approval by House of Lords in the case of Barclays Mercantile Business Finance Ltd. vs. Mawson (Inspector of Taxes) reported in (2005) 1 All ER 97 stating that "a tax is generally imposed by reference to economic activities or transactions which exist in the real world". When an economic activity is to be valued, it is open to the law maker to take into account various factors including the paying capacity of the user, the value of the vehicle, the economic life of the vehicle etc. Lastly, in the present case, for the vehicles registered before 1.7.1998 the option between annual and one time tax is retained. 28. Before concluding, we may quote the observations of the Division Bench of the Kerala High Court in the case of Anas vs. State of Kerala reported in 1999(3) KLT 147 (to which one of us, Dr. AR. Lakshmanan, J., was a party), which state as under:- "A taxing statute can be held to contravene Article 14 of the Constitution only if it purports to impose on the same class of property similarly situated an incidence of taxation which leads to obvious inequality. It is for the Legislature to decide on what objects to levy what rate of tax and it is not for the Courts to consider whether some other objects should have been taxed or whether a different rate should have been prescribed for the tax. It is also to be noted that the Legislature is competent to classify persons or properties into different categories and tax them differently, and if the classification thus made is rational, the taxing statute cannot be challenged merely because different rates of taxation are prescribed for different categories of persons or objects."
### Response:
1
### Explanation:
the aforestated schedule shows the introduction of weight-cum-value index as the basis for payment of life time tax that there is an in-built rationalization of the rates according to the status of the holder (payment capacity) and the nature of the vehicle (Indian and imported cars). Such a rationalization of rates conceptually has been accepted by the Court in the case of Union of India & others vs. Bombay Tyre International Ltd. reported in AIR 1984 SC 420 , in which it has been held that any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy.It is well to remember that the State maintains old roads and makes new ones. These roads are at the disposal of those who use motor vehicles either for private purpose or for trade or commerce. India is a cost-push economy. It has high rate of inflation. The costs of maintenance as well as the costs of material used in the maintenance of the roads increases by the day. This naturally costs the State, which has to find funds for making new roads, and for maintenance of those that are in existence. The impugned tax is regulatory and compensatory in nature in the sense that it is imposed to meet the increasing costs of maintenance and upkeep and to that extent it is not plenary. However, as stated above, the limited question is: whether the tax ceases to be compensatory and regulatory with the introduction of weight-cum-value index and whether the said index is contrary to the scheme of the said 1974 Act.In the present case, we are satisfied that the levy in question being one time tax continues to be a part of regulatory measure. For administrative reasons, in the matter of collection of tax, one time payment of tax is administratively convenient and at the same time, it is also beneficial to the users of the vehicles who do not have to go to the office of the RTO every year to pay the annual taxes. It is also beneficial to the users of the motor vehicles, as they do not have to pay taxes at the increased rates from time to time over the economic life of vehicle as contemplated by section 3(2) of the Act. Moreover, weight alone may not provide a sufficient parameter/basis for imposition of life time tax. As an illustration, we may point out that the weight of the Honda CRV Car is 1500 kg. as against the weight of Tata Indigo GLX which weighs 1490 kg. and yet the cost of Honda CRV is Rs. 15,24,396 lacs whereas the price of Tata Indigo is 5.08,651 lacs. Hence, weight index alone may not constitute the basis of life time tax.23. In the circumstances, we reiterate that introduction of weight-cum-value index will not make the levy non-regulatory/non-compensatory. Further, under the unamended 1974 Act, weight was the basis of the impugned levy as an annual tax. But with the introduction of a life time tax, the entire future projection spread over the economic life of the vehicle had to be taken into account along with other factors like fall in the value of the rupee, inflation, rising costs of the material, cross subsidy etc. and consequently, it was necessary to introduce the new index of weight-cum-value and factors like paying capacity of the owner. In our view, these factors have nexus with the use of the roads over a period of time and hence, the impugned levy fell within entry 57 list-II of the seventh schedule to the Constitution.24. We also do not find the the impugned levy to be discriminatory, arbitrary or unreasonable so as to violate article 14 of the Constitution as held by the High Court. In the case of Municipal Corporation of the City of Ahmedabad & others vs. Jan Mohammed Usmanbhai and another reported in (1986) 3 SCC 20 ), this Court held that article 14 forbids class legislation and not reasonable classification and in order to pass the test of reasonable classification, the classification must be founded on an intelligible differentia which distinguishes persons or class or persons that are grouped together from the others left out of that group and that such differentia must have a rational relation to the object sought to be achieved by the statute in question.There is no merit in the contention advanced on behalf of the respondent herein that there is violation of article 14 of the Constitution by imposing higher burden of tax on vehicles owned by others vis-a-vis the vehicles owned by the individuals in part-I of the third schedule. We do not find merit in this argument. Firstly, as held by this Court in the case of Bombay Tyre (supra), levy is a constitutional concept, whereas collection of a tax as well as incidence of tax comes within the statutory measure. The mode of collection or the incidence of tax cannot be the conclusive test to decide the nature of the levy. The nature of the levy is a concept different from the mode of collection of tax. Levy is a constitutional concept whereas mode of collection of tax is a statutory concept. They stand on different footings. Secondly, it is important to remember the words of Lord Wilberforce, quoted with approval by House of Lords in the case of Barclays Mercantile Business Finance Ltd. vs. Mawson (Inspector of Taxes) reported in (2005) 1 All ER 97 stating that "a tax is generally imposed by reference to economic activities or transactions which exist in the real world". When an economic activity is to be valued, it is open to the law maker to take into account various factors including the paying capacity of the user, the value of the vehicle, the economic life of the vehicle etc. Lastly, in the present case, for the vehicles registered before 1.7.1998 the option between annual and one time tax is retained.
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Custodian of Evacuee Property Punjab & Others Vs. Jafran Begum | jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the Constitution. 11. It now remains to refer to certain oases of other courts in this connection. In M. B. Namazi v. Deputy Custodian of Evacuee Property, AIR 195l Mad 930 the Madras High Court was mainly considering the constitutional validity of the Act. At p. 934, however, Rajamannar C. J. made the following observations :There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the Custodians order would be final. But, does the finality amount to an adjudication on title in case there is any dispute ? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee P I am inclined to hold that The order of the Custodian or the notification under S. 7 of the Ordinance is not final in case of disputed title" These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not directly arise before him He does not seem to have considered the matter in the light of S. 4 and S. 46 of the Act. In any case in view of what we have said above these observations cannot be accepted AS laying down correct law. 12. In Abdul Majid Haji Mahomed v. P. R. Nayak, AIR l951 Bom 440 the main question for consideration was again the constitutional validity of the Act. That was a case which arose on a writ petition. As we have already said, S. 46 cannot bar the jurisdiction of the High Court under Art. 226. But during the course of the judgment, Chagla C. J. referred to the decision of the Privy Council in Secy. of State v. Mask and Co., AIR 1940 PC 105 and observed that it was well settled that :"even if jurisdiction of courts is excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105 . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46; the question whether in some extreme circumstances civil courts may have jurisdiction in spite of S. 46 need not be decided just now. However we may add that in Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh. (1964) 1 SCR 752 : (AIR 1984 SC 322 ) this Court observed at p. 763 (of SCR): (at pp. 325-326 of AIR) that the observations in Mask and Co.s case, AIR 1940 PC 105 were in some respects too widely stated. 13. The next case to which reference may be made is S. M. Zaki v. State of Bihar, AIR 1953 Pat 112 There the question was whether the property was evacuee and the court held that the Act had provided adequate remedies and that S. 46 must be construed to mean that the jurisdiction of a civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was referred to and Ramaswami J. (as he then was) rightly held that under S. 7 the whole matter has to be decided by the Custodian and there was no question of the decision of any collateral fact as a condition precedent to assumption of jurisdiction by the Custodian. 14. The last case to which reference may be made is Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR l964 All 362 (FB). The question there was somewhat different, namely, whether S. 46 bars the jurisdiction of the civil court in a pending matter. The majority of the Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of S. 46.of the Act. This case therefore to some extent is in line with the view we have taken. 15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property. | 1[ds]We do not however propose to go into them in detail, for it appears to us that the view taken in some of them - conflicts with the view taken in othersThe definition also includes certain properties and- exclude certain other properties but we are not concerned with thatUnder S. 8 any property declared to be evacuee property under S. 7 vests in the Custodian from certain dates with which we are not concerned7. Section 28 thus clearly hers the jurisdiction of any court to entertain an original suit with respect to an order passed by the authorities mentioned thereinIt is true that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual administration of such property. But before the authorities under the Act take on the duties of administration of evacuee property someone has to determine what properties are evacuee properties of which the authorities provided under the Act can take over administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that provision which gives power to the Custodian to determine what properties are evacuee properties. The Custodian determines that alter notice to persons interested and after such enquiry as the circumstances of the case permit. It is thereafter that the Custodian declares certain property to be evacuee property and on such declaration the property vests in the Custodian under S. 8. Then we have the provision of appeal under S. 24 and revision under S. 27 of the Act so that any person aggrieved by the order of the Custodian has two forums open to him to ventilate his grievance. Clearly the Custodian under S. 7 acts as a quasijudicial authority and so does the authority hearing appeals under S. 24 and the Custodian-General hearing revisions under S. 27Now there is nothing in S. 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the Custodian cannot decide what are called complicated questions of law or questions of title.It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under S. 7. Nor do we find it possible to make a distinction between questions of feet and questions of law that may arise before the Custodian under S. 7. If he has the power to decide questions of fact, which the learned Judges in the order under appeal seem to concede we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in the order under appeal are correct in saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning it can be said that where a question of title depends on a question of law it cannot be finally decided under S. 7 by the Custodian. His power under S. 7 is to decide whether certain property is evacuee property or not and there is nothing in S. 7 which restricts that power to deciding only questions of fact. There can in our opinion be no escape from the conclusion that under S. 7 when deciding whether certain property is evacuee property or not, the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which arise therein That power cannot be denied on the ground that the Custodian, which term for these purposes includes the Deputy Custodian or the Assistant Custodian may not be an experienced judicial officer and therefore may not be in a position to decide questions of title. His decision is not final and is open to appeal under S. 24 and to revision under S. 27. If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him.It is after the matter has been decided under S. 7 and S. 24 if an appeal is filed and under S. 27 if a revision is filed, that S. 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under S. 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the courts from entertaining or adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under S. 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under S. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by S. 28 and S. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicatedTherefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact.Here under S. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the ConstitutionIn any case in view of what we have said above these observations cannot be accepted AS laying down correct lawWe do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105 . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46This case therefore to some extent is in line with the view we have taken15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property. | 1 | 4,858 | 1,382 | ### Instruction:
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jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the Constitution. 11. It now remains to refer to certain oases of other courts in this connection. In M. B. Namazi v. Deputy Custodian of Evacuee Property, AIR 195l Mad 930 the Madras High Court was mainly considering the constitutional validity of the Act. At p. 934, however, Rajamannar C. J. made the following observations :There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the Custodians order would be final. But, does the finality amount to an adjudication on title in case there is any dispute ? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee P I am inclined to hold that The order of the Custodian or the notification under S. 7 of the Ordinance is not final in case of disputed title" These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not directly arise before him He does not seem to have considered the matter in the light of S. 4 and S. 46 of the Act. In any case in view of what we have said above these observations cannot be accepted AS laying down correct law. 12. In Abdul Majid Haji Mahomed v. P. R. Nayak, AIR l951 Bom 440 the main question for consideration was again the constitutional validity of the Act. That was a case which arose on a writ petition. As we have already said, S. 46 cannot bar the jurisdiction of the High Court under Art. 226. But during the course of the judgment, Chagla C. J. referred to the decision of the Privy Council in Secy. of State v. Mask and Co., AIR 1940 PC 105 and observed that it was well settled that :"even if jurisdiction of courts is excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105 . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46; the question whether in some extreme circumstances civil courts may have jurisdiction in spite of S. 46 need not be decided just now. However we may add that in Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh. (1964) 1 SCR 752 : (AIR 1984 SC 322 ) this Court observed at p. 763 (of SCR): (at pp. 325-326 of AIR) that the observations in Mask and Co.s case, AIR 1940 PC 105 were in some respects too widely stated. 13. The next case to which reference may be made is S. M. Zaki v. State of Bihar, AIR 1953 Pat 112 There the question was whether the property was evacuee and the court held that the Act had provided adequate remedies and that S. 46 must be construed to mean that the jurisdiction of a civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was referred to and Ramaswami J. (as he then was) rightly held that under S. 7 the whole matter has to be decided by the Custodian and there was no question of the decision of any collateral fact as a condition precedent to assumption of jurisdiction by the Custodian. 14. The last case to which reference may be made is Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR l964 All 362 (FB). The question there was somewhat different, namely, whether S. 46 bars the jurisdiction of the civil court in a pending matter. The majority of the Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of S. 46.of the Act. This case therefore to some extent is in line with the view we have taken. 15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.
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shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the Custodian cannot decide what are called complicated questions of law or questions of title.It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under S. 7. Nor do we find it possible to make a distinction between questions of feet and questions of law that may arise before the Custodian under S. 7. If he has the power to decide questions of fact, which the learned Judges in the order under appeal seem to concede we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in the order under appeal are correct in saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning it can be said that where a question of title depends on a question of law it cannot be finally decided under S. 7 by the Custodian. His power under S. 7 is to decide whether certain property is evacuee property or not and there is nothing in S. 7 which restricts that power to deciding only questions of fact. There can in our opinion be no escape from the conclusion that under S. 7 when deciding whether certain property is evacuee property or not, the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which arise therein That power cannot be denied on the ground that the Custodian, which term for these purposes includes the Deputy Custodian or the Assistant Custodian may not be an experienced judicial officer and therefore may not be in a position to decide questions of title. His decision is not final and is open to appeal under S. 24 and to revision under S. 27. If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him.It is after the matter has been decided under S. 7 and S. 24 if an appeal is filed and under S. 27 if a revision is filed, that S. 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under S. 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the courts from entertaining or adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under S. 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under S. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by S. 28 and S. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicatedTherefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact.Here under S. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the ConstitutionIn any case in view of what we have said above these observations cannot be accepted AS laying down correct lawWe do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105 . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46This case therefore to some extent is in line with the view we have taken15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.
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Management of The Kirlampudi Sugar Mills Limited Vs. Industrial Tribunal, A.P. and Another | about Rs. 30 lakhs on its personal security to pay these demands and that is why Rs. 16 lakhs loss is paid off and hence in the year 1962-63 the unsecured debt is shown as Rs. 28 lakhs. The Tribunal was therefore justified in coming to the conclusion that the Company was not in a sound financial position to implement the recommendations of the Wage Board to increase Rs. 10/- on the basic wage and the dearness allowance or Rs. 51- as weightage. Apart from these losses the general reserves are very negligible. Each year about Rs. 3, 000/- is being provided for. In all Rs. 8 lakhs reserves were accumulated from its inception which is not very encouraging.While this is so having regard to its working we had called for the balance-sheets subsequent to 1964-65 to assess the financial prospects of the Appellant during this period. These reveal the following position The balance-sheet for the year ending 30-6-65 Showed a profit of Rs. 12, 72, 126/- before depreciation. After deducting Rs. 5, 25, 545/- towards depreciation and Rs. 1, 16, 138/- as reserve towards development rebate and after adjusting the loss brought forward from last year, a loss of Rs. 30, 943/- was carried forward to the next year. 15. The balance-sheet for the year ending 30-6-66 showed a profit of Rs. 3, 23, 789/-. After setting apart depreciation a sum of Rs. 2 .27, 942/- was the loss carried forward and in the balance sheet for the period ending 30-6-67 there was shown a loss of Rs. 5, 10, 771/- and after providing for depreciation there was a loss of Rs. 9, 90, 526/-. It may also be noticed that in the year of account the Company had to provide a sum of Rs. 2, 16, 353/towards additional cane price payable to the cane growers for the seasons 1958-59 and 1959-60. After allowing for this there was a total loss of Rs. 14, 23, 505/- which was carried forward , to the next year. In the balance-sheet for the year ending 30-6-68 there was a gross profit of Rs. 13, 22, 932/- and after providing for depreciation and adjustment of loss brought forward there was a balance, of loss of Rs. 5, 93, 620/- carried forward to the next year. The year ending 30-6-69 was one year in which dividend of 7.15% was paid on the 5-1/2% income-tax Free Cumulative Preference shares. The profits for the year after adjusting all the losses and providing for depreciation, payment of bonus to staff and taxation it showed a balance of Rs. 2, 27, 430/- out of which dividend was declared as aforesaid. For the year ending June 70 there was again a loss of Rs. 5, 96, 913/- after providing for depreciation. The Directors explained this loss due mainly to high rates of interest charges, provision for depreciation and the passing on of the entire realisable profit on 1968-69 season production for the benefit of the cane growers in that year.The balance-sheets for the years 1960 to 1970-for a period of 10 years show that except for the year ending 30-6-69 the Company was not in a position to declare any dividends. , Though the factory appears to have been expanded after 1964 to 1300 tons capacity it did not show uniform net profits; on the other hand losses continued. The profits that it made in any year seem to be consumed by losses of the previous years. In some years the yield of cane seem to be slightly over 100% the average being a little over 9% which no doubt is encouraging but in spite of it there are various factors which seem to contribute to its financial unsteadiness. 16. This being the position we think that the Tribunal was justified in holding that the Appellant did not have the financial capacity to bear the burden of payment of Rs. 10/- increase and Rs. 51- as weightage in accordance with the recommendations of the Sugar Wage Board. On this conclusion and also on an examination of the relevant material it is evident that the Company is not in a financial position to meet the burden of implementing the recommendations of the Wage Board. The claim of the Respondent for categorisation and fitment in accordance therewith cannot in the circumstances be accepted. The Appeal of the Respondents which challenges the Award of the Tribunal rejecting their claim, for an increase of Rs. 10/and a weightage of Rs. 5/- and for the categorisation and fitments in respect of the heirarchy of supervising category namely Assistant Cane Organisers, Liaison Field Supervisors and Field Supervisors as also in respect of Head Panman, and Panman Incharge of shift, Panman, Asstt. Panman, Bench Chemists and Cane analysists and Canteen Supervisor are all dependent upon the financial capacity of the Respondent Company to implement the Wage Boards recommendations which we have held it has not. As stated earlier the Company which is the Appellant in Civil Appeal No. 1602 of 1966 has already implemented the Award of the Tribunal in respect of a large number of workers both as to categorisation and fitment. It is in respect of fitment of only four categories that it has not implemented, namely Welders, Turbine Engine Drivers, Switch Board Attendants and Boiler Masons that the Appellant has objected to the award on the ground that the Tribunal has acted without evidence and in some cases contrary to the recommendations. The learned Advocate for the Respondents felt that he could not really challenge the contention in respect of the Switch Board Attendants and Turbine Engine Driver, as it would appear that the Tribunal has acted without any evidence. Why we have referred to these specific cases objected to by the Company in their Appeal is to indicate that, notwithstanding the finding that the Wage Boards recommendations in the circumstances, cannot be implemented, the Company has given effect to the Tribunals Award, which will remain in force till a revision takes place. | 1[ds]In answer it is pointed out that the contention raised on behalf of the Respondents is implicit in issue 1 (a) which is as follows:1(a) "Whether the demand for categorisation of workers and their fitment and work load should be in accordance with the recommendations of the Wage Board for Sugar industry is justified"7. These cases were considered in Worknen v. Bajrang Jute Mills([1969] 2 S.C.R. 593.) to which one of us was a party (Vaidialingam, J.). That case was considering the Report of the Jute Wage Board which in making recommendations for the industry adopted a different approach. The Wage Board took the whole of India. as one unit while in fact almost all the Jute Mills were situated in West Bengal and a few in Bihar and still fewer in Andhra Pradesh. What the Wage Board did was to compare 20 Mills from West Bengal and 9 mills from the rest of India as representing a fair cross section of the industry. The Respondents have a fairly small unit in Andhra Pradesh which was considered as a comparable unit with two larger mills in the State and with some of the prosperous Mills in West Bengal. The management of the Mill refused to accede to the demand of the workman to pay the wages in accordance with the recommendations of the Wage Board, fixing uniform wage scale for the industry on the plea that the Mill had no financial capacity to bear the burden of the wage scale On the dispute being referred to the Tribunal it upheld the claim of the management. This Court in Appeal sustained the Award of the Tribunal that the payment of the workmen for implementation of the, recommendation of the Wage Board is not justified. In this connection at page0 it was observed by reference to the manner in which the Wage Board had laid down uniform scales for the entire industry irrespective of where its several units were situate and of the different conditions prevailing in various areas, that it would have been better if it had "considered the units in each area separately and mined thes for each such area by taking from that area a representativen of the industry where possible or where that was not possible by taking comparable units from mother industries within that area, thus following the principle oft was further observed:"It is true that in doing so uniformity of wage scales for the entire industry would not have been attained. But in a vast country like ours, where conditions differ often radically from region to region and even the index of living differs within a fairly wide range, such a target cannot always be just or equitable. If the wage scales had been determined by the Board in the manner aforesaid, even though the Board is not a statutory body and consequently its decision are of a recommendatory character, it would be possible for industrial tribunals to give due weight to its recommendations as such recommendations would have been in conformity with the principle of9. It would therefore appear that the Wage Board following the principles laid down by this Court has considered the capacity of the industrye and has also fixed wages different from region to region having regard to the difference in the capacity of the industry. Further it has given good reason for not furnishing a criteria for further classification of the industry within the region. In these circumstances prescribing the same wage for all units of industry in the same region is in our view justified and the fact that the industry in the region has not been divided into classes cannot vitiate the recommendations of the Wage BoardIt appears to us that if in law it, is open to the unit to plead financial inability to implement the recommendations of the Wage Board the hypothesis on which the question has been posed will not be relevant because in such a contingency as is envisaged there would be a specific issue and a determination of the wage structure by the Tribunal will be on the evidence produced before it according to the financial capacity of the unit. Once this is finally determined, the unit cannot continue to assert that it has no financial capacity to implement the Award11. In our view there is warrant for the submission of the learned Advocate for the Appellant that notwithstanding the fact that a fair wage has been fixed by the Board which would be applicable to all the units in the region for which wage has been fixed, it may be open to any particular unit to plead that in fact its financial position is not such that it can bear the burden of implementing the recommendations. In Ahmedabad Mill Owners Association etc. v. The Textile Labour Association([1966] 1 S.C.R. 392), the observations of this Court at page 421 lend support to our conclusions13. The details of debts would show that they are far in excess of the paid up share capital and even taking the profit and development rebate reserves and other reserves into account the financial position of the Company is certainly bad. A reference has also been made to the notices issued by the Revenue Divisional Officer, Ex. M. 53 for showing that on 30th December 1962, a sum of Rs. 15, 91,1 ps. was due towards Sugar cane cess for2 and a sum of Rs. 11.66, 718.37 ps. towards cane price in accordance with the details given there under. Subsequently it would appear from Ex. M. 53/1 that notices under Sec. 53 of the Revenue Recovery Act were also issued by the Revenue Divisional Officer, Kakinada for the recovery of these amounts. There were also other notices and a press note published in the Indian Express showing that the Government was going to auction the Sugar Mills for recovering its dues. The Minister concerned is reported to have said that its Department was taking action to collect its dues as arrears of land revenue.It is on the other hand contended that the Appellants unit is an economic unit and has been expanded into a 1000 ton unit in 1956 and there is nothing to show thereafter what its financial , position was. In any case the profit and loss figures for the four years starting with 1960 would indicate that there was loss only in one year whereas in all the other three years there was profit and from this we are asked to conclude that the Appellant company was in a sound financial position. No doubt any unusual profits or losses in any year due to advantageous circumstances should not be allowed to cloud the decision one way or the otherThe conclusion of the Tribunal in respect of the claim for increase of Rs. 10/is that having regard to thes ", the profits made in the 4 years are about Rs. 4 lakhs and the loss sustained in3 is of Rs. 16 lakhs and after wiping it off to some extent by sale of debentures it is about Rs. 9 lakhs. This will show that the financial position of the concern is not satisfactory". After noting that except for this one year the concern has always been making profits, it went on to observe: "Still, to judge the financial position of a concern, it is always relevant to see what are its reserves. It appears from thet that the reserves have never risen beyond Rs. 8 lakhs or so. In the circumstances, it appears to me that it will be difficult to hold that the financial position of the Company is sound. 1, therefore, agree with learned Advocate, that it has not the financial capacity to implement this increase of Rs. 10/over and above the fitment in the grade recommended by the Board. I hold accordingly". The comment of the learned Advocate for the Respondent is that these losses did not preclude the management from accepting the recommendations of the Wage Board and willingly agreeing to its implementation. In a letter dated the 18th December 61 to the President of the Workers Union, the Management stated that as per their talks on 10th December 61, it accepts the implementation of the Wage Board recommendations and will pay from December 61 onwards salary as per fitments made by it. Final figures and fitments will be made after the Government Tripartite Committee comes and discusses with it and the Union and arrives at a decision. It also promised to pay the difference in the wage as per wages paid till the month of November 1961 and the Wage Board fitments as made by them will be paid to the workers before the end of March 1962. Again in the agreement between the Management and the employees under see. 18(1) of the Industrial Disputes Act dated3 it was Specifically stated that "the question of fitments will be taken up as per the Sugar Boards recommendations in the month of January 1964 and finalise before the end of the. Even at that stage it was never the case of the Management that the Wage Boards recommendations could not be implemented. Even the new management in its letter of September 5, 1964 addressed to the Union (Ex. W. 36) stated:"With a view to arrive at an amicable settlement with regard to fitments a discussion had taken place between the members of the Tripartite Committee constituted by the Commissioner of Labour and it was agreed during the discussions among other matters, that(1)Wherever there is a standard nomenclature in the Wage Board Report corresponding to the previous designation held by an individual before November 1960, he will be given that designation provided the duties and responsibilities of the individual are similar to the duties assigned by the Wage Board(2)In other cases, where no standard nomenclature can be applied to the existing cadre, the cadre will be fixed with reference to duties and responsibilities and the time scale of pay attached to the cadre in factory before November 1960"From the several exhibits it would appear that both old and the new management were anxious to implement the Wage Boards recommendation but according to the fitments made by it. But the employees as represented by the Workers Union were not prepared to accept those fitments and wanted fitments in a higher cadre and other advantages according to their reading of the Wage Boards recommendations which the management felt, it is not able to accommodate not only because those recommendations did not justify it but on the ground of financial incapacity14. No doubt it is for the management to show what its financial position is and how it is going to place undue or impossible burden upon it to implement the recommendations. That burden it seeks to discharge by production of the balancesheets which have not been challenged and the contents of which are, therefore deemed to have been accepted. We find from the balance sheet and the Directors Report for the period ending0 that a sum of Rs. 6, 15, 254/had to be written off against the old losses leaving a balance of Rs. 40, 774/in the profit and loss account. The Directors thought that the Companys financial position has now been stabilised and all the old losses have been wiped off but that hope was only short lived as the subsequents for the period ending 30th June 61 would show. According to the report for 1961 though there was a net profit of Rs. 1, 08, 005/which together with the carry forward profit of the previous year of Rs. 40, 774/amounted to Rs. 1, 48, 779/and after making provision for reserve for development rebate of Rs. 38, 788/a balance of Rs. 1, 09, 991/was , carried forward to next years account. For that year no dividends were declared and the Managing Agents also waived their remuneration. For the year ending 30th June 1962, the position is more or less thee net profit for the year amounted to Rs30, 616/which together with the profits of the previous year of Rs. 1, 09, 991/amounted to Rs. 1, 40,. This amount was again recommended by the Directors to be carried forward for the next year. No dividend was declared and the Managing Agents also waived their remuneration. In 1963 the position had become critical the loss incurred was Rs. 16, 12, 196 which wiped out the previous years profits. There was no question of declaration of any dividends but Managing Agents remuneration of Rs. 30, 000/(minimum) was drawn. These losses would have the effect of eating into the capital of the Company, unless it could borrow and tide over them. In the year ending 30th June 64 a loss of Rs. 6, 61, 386/was carried forward to next year. It may be noted that in that year in June 1964 the Government of India had approved the change in the Constitution of the Managing Agency of the Company and it is stated that because of the efforts of the new Management who borrowed large sums on their personal security for putting the Appellant in better shape, large sums were in fact advanced to the Appellant. As could be seen from the statement M. 51 that for the years3 and4 the Secured and unsecured debts were approximately Rs. 81 lakhs, Rs. 70 lakhs, Rs. 61 lakhs and Rs. 51 lakhs respectively. It is stated that the losses were coming down and therefore the financial position is getting better but in our view this by itself does not mean that , the Company is in a sound financial position. What was happening evidently is as suggested by the learned Advocate for the Appellant that the Sugar stocks pledged were being sold and therefore the debts were getting less. It is no doubt true that attachment orders which were made in 1962 must have been paid off and the attachment withdrawn. That again is not an indication of the soundness of its financial position because there is evidence to show that the new management had to secure a large loan of about Rs. 30 lakhs on its personal security to pay these demands and that is why Rs. 16 lakhs loss is paid off and hence in the year3 the unsecured debt is shown as Rs. 28 lakhs. The Tribunal was therefore justified in coming to the conclusion that the Company was not in a sound financial position to implement the recommendations of the Wage Board to increase Rs. 10/on the basic wage and the dearness allowance or Rs. 51as weightage. Apart from these losses the general reserves are very negligible. Each year about Rs. 3, 000/is being provided for. In all Rs. 8 lakhs reserves were accumulated from its inception which is not very encouraging.While this is so having regard to its working we had called for thes subsequent to5 to assess the financial prospects of the Appellant during this period. These reveal the following position Thet for the year ending5 Showed a profit of Rs. 12, 72, 126/before depreciation. After deducting Rs. 5, 25, 545/towards depreciation and Rs. 1, 16, 138/as reserve towards development rebate and after adjusting the loss brought forward from last year, a loss of Rs. 30, 943/was carried forward to the next year15. Thet for the year ending6 showed a profit of Rs. 3, 23,. After setting apart depreciation a sum of Rs. 2 .27, 942/was the loss carried forward and in the balance sheet for the period ending7 there was shown a loss of Rs. 5, 10, 771/and after providing for depreciation there was a loss of Rs. 9, 90,. It may also be noticed that in the year of account the Company had to provide a sum of Rs. 2, 16, 353/towards additional cane price payable to the cane growers for the seasons9 and. After allowing for this there was a total loss of Rs. 14, 23, 505/which was carried forward , to the next year. In thet for the year ending8 there was a gross profit of Rs. 13, 22, 932/and after providing for depreciation and adjustment of loss brought forward there was a balance, of loss of Rs. 5, 93, 620/carried forward to the next year. The year ending9 was one year in which dividend of 7.15% was paid on thex Free Cumulative Preference shares. The profits for the year after adjusting all the losses and providing for depreciation, payment of bonus to staff and taxation it showed a balance of Rs. 2, 27, 430/out of which dividend was declared as aforesaid. For the year ending June 70 there was again a loss of Rs. 5, 96, 913/after providing for depreciation. The Directors explained this loss due mainly to high rates of interest charges, provision for depreciation and the passing on of the entire realisable profit on9 season production for the benefit of the cane growers in that year.Thes for the years 1960 tor a period of 10 years show thatexcept forthe year ending9 the Company was not in a position to declare any dividends. , Though the factory appears to have been expanded after 1964 to 1300 tons capacity it did not show uniform net profits; on the other hand losses continued. The profits that it made in any year seem to be consumed by losses of the previous years. In some years the yield of cane seem to be slightly over 100% the average being a little over 9% which no doubt is encouraging but in spite of it there are various factors which seem to contribute to its financial unsteadiness16. This being the position we think that the Tribunal was justified in holding that the Appellant did not have the financial capacity to bear the burden of payment of Rs. 10/increase and Rs. 51as weightage in accordance with the recommendations of the Sugar Wage Board. On this conclusion and also on an examination of the relevant material it is evident that the Company is not in a financial position to meet the burden of implementing the recommendations of the Wage Board. The claim of the Respondent for categorisation and fitment in accordance therewith cannot in the circumstances be accepted. The Appeal of the Respondents which challenges the Award of the Tribunal rejecting their claim, for an increase of Rs. 10/and a weightage of Rs. 5/and for the categorisation and fitments in respect of the heirarchy of supervising category namely Assistant Cane Organisers, Liaison Field Supervisors and Field Supervisors as also in respect of Head Panman, and Panman Incharge of shift, Panman, Asstt. Panman, Bench Chemists and Cane analysists and Canteen Supervisor are all dependent upon the financial capacity of the Respondent Company to implement the Wage Boards recommendations which we have held it has not. As stated earlier the Company which is the Appellant in Civil Appeal No. 1602 of 1966 has already implemented the Award of the Tribunal in respect of a large number of workers both as to categorisation and fitment. It is in respect of fitment of only four categories that it has not implemented, namely Welders, Turbine Engine Drivers, Switch Board Attendants and Boiler Masons that the Appellant has objected to the award on the ground that the Tribunal has acted without evidence and in some cases contrary to the recommendations. The learned Advocate for the Respondents felt that he could not really challenge the contention in respect of the Switch Board Attendants and Turbine Engine Driver, as it would appear that the Tribunal has acted without any evidence. Why we have referred to these specific cases objected to by the Company in their Appeal is to indicate that, notwithstanding the finding that the Wage Boards recommendations in the circumstances, cannot be implemented, the Company has given effect to the Tribunals Award, which will remain in force till a revision takes place. | 1 | 10,098 | 3,621 | ### Instruction:
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about Rs. 30 lakhs on its personal security to pay these demands and that is why Rs. 16 lakhs loss is paid off and hence in the year 1962-63 the unsecured debt is shown as Rs. 28 lakhs. The Tribunal was therefore justified in coming to the conclusion that the Company was not in a sound financial position to implement the recommendations of the Wage Board to increase Rs. 10/- on the basic wage and the dearness allowance or Rs. 51- as weightage. Apart from these losses the general reserves are very negligible. Each year about Rs. 3, 000/- is being provided for. In all Rs. 8 lakhs reserves were accumulated from its inception which is not very encouraging.While this is so having regard to its working we had called for the balance-sheets subsequent to 1964-65 to assess the financial prospects of the Appellant during this period. These reveal the following position The balance-sheet for the year ending 30-6-65 Showed a profit of Rs. 12, 72, 126/- before depreciation. After deducting Rs. 5, 25, 545/- towards depreciation and Rs. 1, 16, 138/- as reserve towards development rebate and after adjusting the loss brought forward from last year, a loss of Rs. 30, 943/- was carried forward to the next year. 15. The balance-sheet for the year ending 30-6-66 showed a profit of Rs. 3, 23, 789/-. After setting apart depreciation a sum of Rs. 2 .27, 942/- was the loss carried forward and in the balance sheet for the period ending 30-6-67 there was shown a loss of Rs. 5, 10, 771/- and after providing for depreciation there was a loss of Rs. 9, 90, 526/-. It may also be noticed that in the year of account the Company had to provide a sum of Rs. 2, 16, 353/towards additional cane price payable to the cane growers for the seasons 1958-59 and 1959-60. After allowing for this there was a total loss of Rs. 14, 23, 505/- which was carried forward , to the next year. In the balance-sheet for the year ending 30-6-68 there was a gross profit of Rs. 13, 22, 932/- and after providing for depreciation and adjustment of loss brought forward there was a balance, of loss of Rs. 5, 93, 620/- carried forward to the next year. The year ending 30-6-69 was one year in which dividend of 7.15% was paid on the 5-1/2% income-tax Free Cumulative Preference shares. The profits for the year after adjusting all the losses and providing for depreciation, payment of bonus to staff and taxation it showed a balance of Rs. 2, 27, 430/- out of which dividend was declared as aforesaid. For the year ending June 70 there was again a loss of Rs. 5, 96, 913/- after providing for depreciation. The Directors explained this loss due mainly to high rates of interest charges, provision for depreciation and the passing on of the entire realisable profit on 1968-69 season production for the benefit of the cane growers in that year.The balance-sheets for the years 1960 to 1970-for a period of 10 years show that except for the year ending 30-6-69 the Company was not in a position to declare any dividends. , Though the factory appears to have been expanded after 1964 to 1300 tons capacity it did not show uniform net profits; on the other hand losses continued. The profits that it made in any year seem to be consumed by losses of the previous years. In some years the yield of cane seem to be slightly over 100% the average being a little over 9% which no doubt is encouraging but in spite of it there are various factors which seem to contribute to its financial unsteadiness. 16. This being the position we think that the Tribunal was justified in holding that the Appellant did not have the financial capacity to bear the burden of payment of Rs. 10/- increase and Rs. 51- as weightage in accordance with the recommendations of the Sugar Wage Board. On this conclusion and also on an examination of the relevant material it is evident that the Company is not in a financial position to meet the burden of implementing the recommendations of the Wage Board. The claim of the Respondent for categorisation and fitment in accordance therewith cannot in the circumstances be accepted. The Appeal of the Respondents which challenges the Award of the Tribunal rejecting their claim, for an increase of Rs. 10/and a weightage of Rs. 5/- and for the categorisation and fitments in respect of the heirarchy of supervising category namely Assistant Cane Organisers, Liaison Field Supervisors and Field Supervisors as also in respect of Head Panman, and Panman Incharge of shift, Panman, Asstt. Panman, Bench Chemists and Cane analysists and Canteen Supervisor are all dependent upon the financial capacity of the Respondent Company to implement the Wage Boards recommendations which we have held it has not. As stated earlier the Company which is the Appellant in Civil Appeal No. 1602 of 1966 has already implemented the Award of the Tribunal in respect of a large number of workers both as to categorisation and fitment. It is in respect of fitment of only four categories that it has not implemented, namely Welders, Turbine Engine Drivers, Switch Board Attendants and Boiler Masons that the Appellant has objected to the award on the ground that the Tribunal has acted without evidence and in some cases contrary to the recommendations. The learned Advocate for the Respondents felt that he could not really challenge the contention in respect of the Switch Board Attendants and Turbine Engine Driver, as it would appear that the Tribunal has acted without any evidence. Why we have referred to these specific cases objected to by the Company in their Appeal is to indicate that, notwithstanding the finding that the Wage Boards recommendations in the circumstances, cannot be implemented, the Company has given effect to the Tribunals Award, which will remain in force till a revision takes place.
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made in 1962 must have been paid off and the attachment withdrawn. That again is not an indication of the soundness of its financial position because there is evidence to show that the new management had to secure a large loan of about Rs. 30 lakhs on its personal security to pay these demands and that is why Rs. 16 lakhs loss is paid off and hence in the year3 the unsecured debt is shown as Rs. 28 lakhs. The Tribunal was therefore justified in coming to the conclusion that the Company was not in a sound financial position to implement the recommendations of the Wage Board to increase Rs. 10/on the basic wage and the dearness allowance or Rs. 51as weightage. Apart from these losses the general reserves are very negligible. Each year about Rs. 3, 000/is being provided for. In all Rs. 8 lakhs reserves were accumulated from its inception which is not very encouraging.While this is so having regard to its working we had called for thes subsequent to5 to assess the financial prospects of the Appellant during this period. These reveal the following position Thet for the year ending5 Showed a profit of Rs. 12, 72, 126/before depreciation. After deducting Rs. 5, 25, 545/towards depreciation and Rs. 1, 16, 138/as reserve towards development rebate and after adjusting the loss brought forward from last year, a loss of Rs. 30, 943/was carried forward to the next year15. Thet for the year ending6 showed a profit of Rs. 3, 23,. After setting apart depreciation a sum of Rs. 2 .27, 942/was the loss carried forward and in the balance sheet for the period ending7 there was shown a loss of Rs. 5, 10, 771/and after providing for depreciation there was a loss of Rs. 9, 90,. It may also be noticed that in the year of account the Company had to provide a sum of Rs. 2, 16, 353/towards additional cane price payable to the cane growers for the seasons9 and. After allowing for this there was a total loss of Rs. 14, 23, 505/which was carried forward , to the next year. In thet for the year ending8 there was a gross profit of Rs. 13, 22, 932/and after providing for depreciation and adjustment of loss brought forward there was a balance, of loss of Rs. 5, 93, 620/carried forward to the next year. The year ending9 was one year in which dividend of 7.15% was paid on thex Free Cumulative Preference shares. The profits for the year after adjusting all the losses and providing for depreciation, payment of bonus to staff and taxation it showed a balance of Rs. 2, 27, 430/out of which dividend was declared as aforesaid. For the year ending June 70 there was again a loss of Rs. 5, 96, 913/after providing for depreciation. The Directors explained this loss due mainly to high rates of interest charges, provision for depreciation and the passing on of the entire realisable profit on9 season production for the benefit of the cane growers in that year.Thes for the years 1960 tor a period of 10 years show thatexcept forthe year ending9 the Company was not in a position to declare any dividends. , Though the factory appears to have been expanded after 1964 to 1300 tons capacity it did not show uniform net profits; on the other hand losses continued. The profits that it made in any year seem to be consumed by losses of the previous years. In some years the yield of cane seem to be slightly over 100% the average being a little over 9% which no doubt is encouraging but in spite of it there are various factors which seem to contribute to its financial unsteadiness16. This being the position we think that the Tribunal was justified in holding that the Appellant did not have the financial capacity to bear the burden of payment of Rs. 10/increase and Rs. 51as weightage in accordance with the recommendations of the Sugar Wage Board. On this conclusion and also on an examination of the relevant material it is evident that the Company is not in a financial position to meet the burden of implementing the recommendations of the Wage Board. The claim of the Respondent for categorisation and fitment in accordance therewith cannot in the circumstances be accepted. The Appeal of the Respondents which challenges the Award of the Tribunal rejecting their claim, for an increase of Rs. 10/and a weightage of Rs. 5/and for the categorisation and fitments in respect of the heirarchy of supervising category namely Assistant Cane Organisers, Liaison Field Supervisors and Field Supervisors as also in respect of Head Panman, and Panman Incharge of shift, Panman, Asstt. Panman, Bench Chemists and Cane analysists and Canteen Supervisor are all dependent upon the financial capacity of the Respondent Company to implement the Wage Boards recommendations which we have held it has not. As stated earlier the Company which is the Appellant in Civil Appeal No. 1602 of 1966 has already implemented the Award of the Tribunal in respect of a large number of workers both as to categorisation and fitment. It is in respect of fitment of only four categories that it has not implemented, namely Welders, Turbine Engine Drivers, Switch Board Attendants and Boiler Masons that the Appellant has objected to the award on the ground that the Tribunal has acted without evidence and in some cases contrary to the recommendations. The learned Advocate for the Respondents felt that he could not really challenge the contention in respect of the Switch Board Attendants and Turbine Engine Driver, as it would appear that the Tribunal has acted without any evidence. Why we have referred to these specific cases objected to by the Company in their Appeal is to indicate that, notwithstanding the finding that the Wage Boards recommendations in the circumstances, cannot be implemented, the Company has given effect to the Tribunals Award, which will remain in force till a revision takes place.
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M/s. B.P.L. Ltd. & Others Vs. R. Sudhakar & Others | not that the workmen do not have remedy to challenge the order of dismissal. They can raise dispute challenging the said order of dismissal by initiating separate proceedings. Even if the an application was to be made under proviso to Section 33(2)(b), the Tribunal could not have proceeded to pass any order because of the interim order passed by the High Court staying the operation of the order of reference. If the Tribunal were to proceed to pass any order there would have been a possibility of it committing contempt of the order passed by the High Court. This Court in Baradakanta Mishra, Ex-Commissioner of Endowments vs. Bhimsen Dixit [1973 (2) SCR 495 ], dealing with the case that where the authority did not follow a binding precedent of the High Court and tried to justify not following it on some grounds, observed thus:-- Contempt of Court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the courts order, it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute. (Vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14. Oswalds Contempt of Court (1910 Edn.) pages 5 and 6). It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardize the preservations of the law and order. The appellants case is to be examined in the light of the foregoing principles and analogy.. That was a case where binding precedent of High Court was not followed, but in the present case the Tribunal, if was to proceed with an application under Section 33(2)(b) of the Act, it would have been direct disobedience of the interim order of stay passed by the High Court. 19. A situation may arise where workman commits a grave misconduct and situation does not allow any delay in taking action against such workman and the interim order staying operation of order of reference is operative and if it was to prolong for a long time, it would lead to anomalous situation. The case of the appellant-companies, as can be seen from paragraph 3 of the Counter Statement filed by them in reply to the complaint made by the workmen under Section 33A of the Act, reads:-- It is submitted that the services of the First Party was terminated on 31.3.1999 for his involvement in the barbaric incident of setting fire to a bus carrying workmen resulting in the death of TWO women workers and critically injuring six others besides injuring Several Others. The Second Party, in the normal course, would have held inquiries before taking any action but the fear psychosis generated in the minds of the workmen by the said act of First Party necessitated the Second Party apprehended that the situation may go out of control and the delinquents may be emboldened to indulge in further acts of violence. Therefore, the Second Party had no other option other than to dispense with the services of the First Party in order to ensure that the services of the other employees were protected and that further acts of violence, if contemplated upon, could be curbed. Considering the gravity of the situation and in view of the apprehension expressed by the witnesses of their safety and security, the Second Party felt that holding an enquiry was neither possible nor was it just and expedient. Hence, the services of the First Party was terminated for indulging in serious acts of violence and this was strictly in accordance with the standing order. The Second Party will lead evidence on the acts of misconduct for which the First Party was dismissed from service and will justify its order of dismissal before this Honble Court in the event of this Honble court holding the complaint as maintainable. No doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal was pre-requisite condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable. 20. The question set out above in the beginning of this judgment is answered in the negative. 21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by the respondent-workmen is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law. | 1[ds]11. In the present case then were dismissed from service on account of misconduct during the period when operation of the order of reference remained stayed. Compliance of proviso to Section 33(2)(b) would be required if the dispute was pending on the date when the workmen were dismissed from service. The Tribunal held that the dispute was pending before it notwithstanding stay of the operation of the order of reference by the GovernmentWhile admitting the liability to pay the appellant company stated that it was expecting certain sums of money towards developmental loan from the Government of Karnataka and as soon as the same was received it would pay the outstanding amount. Since the amount was not paid respondent issued a notice under Section 434 of the Companies Act and, thereafter, a petition was filed in the High Court under Section 433(e) of the Companies Act for winding up of the appellant company12. We are concerned only with question number one. The proceedings before the Board under Sections 15 and 16 of the SICA had been terminated on 26.4.1990. The appeal filed by the appellant company before the appellate authority had been dismissed on 7.1.1991. As a result of these orders no proceeding under the Act was pending either before the Board or before the appellate authority on 21.2.1991 when the Delhi High Court passed the interim order staying the operation of the order of appellate authority dated 7.1.1991. This Court held that the said stay order could not have the effect of reviving the proceedings, which had been disposed of by the appellate authority by its order dated 7.1.1991 observing that While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the appellate authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the appellate authority would be restored and it can be said to be pending before the appellate authority after the quashing of the order of the appellate authority. The same cannot be said with regard to an order staying the operation of the order of the appellate authority because in spite of the said order, the order of the appellate authority continues to exist in law and so long as it exists it cannot be said that the appeal, which has been disposed of by the said order has not been disposed of and is still pending. In that view this Court held that it cannot be said that any proceedings under the Act were pending before the Board or the appellate authority on the date of passing the order dated 14.8.1991 by the learned single Judge of the Karnataka High Court for winding up of the company or on 6.1.1991 when the Division Bench passed the order dismissing OSA No. 16 of 1991 filed by the company and, therefore, there was no impediment in the High Court dealing with the winding up petition filed by the respondents13. In the case on hand the situation is entirely different. The Tribunal gets jurisdiction only on reference made by the Government. When the operation of the very order of reference was stayed the question of dispute pending before the Tribunal did not arise inasmuch as the reference order itself stood suspended. So long as stay order was operating it could not be said that the dispute was pending before the Tribunal. Admittedly, when workmen were dismissed from service stay order was operating. Learned single Judge as well as the Division Bench of the High Court have proceeded on wrong footing relying upon the decision of this Court in Shri Chamundi Mopeds Ltd. (supra), that the order of the reference was not wiped out by virtue of staying of the operation of order of reference. It is not the question as to whether the order of the reference is wiped out but the question is what is the effect of the staying of the operation of order of reference itself. Once the operation of order of reference is stayed there is no question of dispute pending before the Tribunal so long as the said order remains in operation because reference precedes dispute. To put it differently, dispute could come up for adjudication by the Tribunal pursuant to the order of reference only. If in a pending proceeding operation of order is stayed pending disposal of the main matter such as an appeal or revision, obviously the impugned order does not get quashed or wiped out. It only remains suspended. But the position is different in this case, as already stated above. It was not a case where the dispute was pending and only further proceedings were stayed. When the order of reference itself was stayed the Tribunal did not have the jurisdiction to pass any further order. As such the question of either management making an application under the proviso to Section 33(2)(b) or the Tribunal passing an order of such application would not arise. In case any tribunal proceeds to pass an order in spite of stay of the operation of the order of reference by the High Court it may amount to contempt of the order of the High Court. In case of some grave misconduct the management cannot afford to sit idle or simply wait to take action, particularly, when stay of the operation of the order of reference is obtained at the instance of union on behalf of the workmen. The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and it is on the facts of that case. Even in that case it is stated that the order of stay did not amount to revival of appeal or proceedings16. The effect of grant of stay of operation of the order of industrial reference was that the Industrial Tribunal could not take up the reference for adjudication. Consequently, no action based on such reference could be taken by the Tribunal including grant or refusal of approval to the disciplinary action under Section 33(2) of the Act. The employer could not have, therefore, approached the Tribunal for seeking approval to its disciplinary action so long as the order of reference remained stayed by the order of the High Court. The industrial reference stood revived, only when the writ petition against the industrial reference was finally disposed of by the High Court on 12.4.1999. The industrial reference would be said to be pending only from 12.4.1999. The action of dismissal of the services of the workmen was taken on 31.3.1999. On that date, as a result of the order of the stay of the operation of reference by the High Court on 11.3.1999, no reference was pending for adjudication before the Tribunal. The provisions of Section 33 of the Act are attracted only when an industrial dispute is pending for adjudication and not merely when an order of reference is made by the Government. In the present case, proceedings were not pending before the Tribunal because of the stay of the order of reference itself. Bothn (2) of Section 33 employ the language during the pendency of any proceeding which clearly convey that obligation on the part of the employer under the said Section of seeking express permission for the purpose ofn (1) or approval for the purpose ofn (2) arises only when there are proceedings pending on industrial dispute before the Tribunal or other specified statutory adjudicatory authorities under the Act17. In the present case as on date of dismissal of workmen from service the interim order staying the operation of the order of reference was operative. Hence the question of dispute being pending on that day did not arise. As already stated above, in order to make an application under proviso to Section 33(2)(b) of the Act, pendency of the proceeding was essential. In this view the appellant companies did not contravene the provisions of Section 33(2)(b) of the ActNo doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal wase condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable20. The question set out above in the beginning of this judgment is answered in the negative21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by then is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law. | 1 | 6,262 | 1,878 | ### Instruction:
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not that the workmen do not have remedy to challenge the order of dismissal. They can raise dispute challenging the said order of dismissal by initiating separate proceedings. Even if the an application was to be made under proviso to Section 33(2)(b), the Tribunal could not have proceeded to pass any order because of the interim order passed by the High Court staying the operation of the order of reference. If the Tribunal were to proceed to pass any order there would have been a possibility of it committing contempt of the order passed by the High Court. This Court in Baradakanta Mishra, Ex-Commissioner of Endowments vs. Bhimsen Dixit [1973 (2) SCR 495 ], dealing with the case that where the authority did not follow a binding precedent of the High Court and tried to justify not following it on some grounds, observed thus:-- Contempt of Court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the courts order, it also signifies such conduct as tends to bring the authority of the court and the administration of law into disrepute. (Vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14. Oswalds Contempt of Court (1910 Edn.) pages 5 and 6). It is a commonplace that where the superior courts order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeopardize the preservations of the law and order. The appellants case is to be examined in the light of the foregoing principles and analogy.. That was a case where binding precedent of High Court was not followed, but in the present case the Tribunal, if was to proceed with an application under Section 33(2)(b) of the Act, it would have been direct disobedience of the interim order of stay passed by the High Court. 19. A situation may arise where workman commits a grave misconduct and situation does not allow any delay in taking action against such workman and the interim order staying operation of order of reference is operative and if it was to prolong for a long time, it would lead to anomalous situation. The case of the appellant-companies, as can be seen from paragraph 3 of the Counter Statement filed by them in reply to the complaint made by the workmen under Section 33A of the Act, reads:-- It is submitted that the services of the First Party was terminated on 31.3.1999 for his involvement in the barbaric incident of setting fire to a bus carrying workmen resulting in the death of TWO women workers and critically injuring six others besides injuring Several Others. The Second Party, in the normal course, would have held inquiries before taking any action but the fear psychosis generated in the minds of the workmen by the said act of First Party necessitated the Second Party apprehended that the situation may go out of control and the delinquents may be emboldened to indulge in further acts of violence. Therefore, the Second Party had no other option other than to dispense with the services of the First Party in order to ensure that the services of the other employees were protected and that further acts of violence, if contemplated upon, could be curbed. Considering the gravity of the situation and in view of the apprehension expressed by the witnesses of their safety and security, the Second Party felt that holding an enquiry was neither possible nor was it just and expedient. Hence, the services of the First Party was terminated for indulging in serious acts of violence and this was strictly in accordance with the standing order. The Second Party will lead evidence on the acts of misconduct for which the First Party was dismissed from service and will justify its order of dismissal before this Honble Court in the event of this Honble court holding the complaint as maintainable. No doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal was pre-requisite condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable. 20. The question set out above in the beginning of this judgment is answered in the negative. 21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by the respondent-workmen is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law.
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wiped out by virtue of staying of the operation of order of reference. It is not the question as to whether the order of the reference is wiped out but the question is what is the effect of the staying of the operation of order of reference itself. Once the operation of order of reference is stayed there is no question of dispute pending before the Tribunal so long as the said order remains in operation because reference precedes dispute. To put it differently, dispute could come up for adjudication by the Tribunal pursuant to the order of reference only. If in a pending proceeding operation of order is stayed pending disposal of the main matter such as an appeal or revision, obviously the impugned order does not get quashed or wiped out. It only remains suspended. But the position is different in this case, as already stated above. It was not a case where the dispute was pending and only further proceedings were stayed. When the order of reference itself was stayed the Tribunal did not have the jurisdiction to pass any further order. As such the question of either management making an application under the proviso to Section 33(2)(b) or the Tribunal passing an order of such application would not arise. In case any tribunal proceeds to pass an order in spite of stay of the operation of the order of reference by the High Court it may amount to contempt of the order of the High Court. In case of some grave misconduct the management cannot afford to sit idle or simply wait to take action, particularly, when stay of the operation of the order of reference is obtained at the instance of union on behalf of the workmen. The case of Shri Chamundi Mopeds Ltd. is quite distinguishable and it is on the facts of that case. Even in that case it is stated that the order of stay did not amount to revival of appeal or proceedings16. The effect of grant of stay of operation of the order of industrial reference was that the Industrial Tribunal could not take up the reference for adjudication. Consequently, no action based on such reference could be taken by the Tribunal including grant or refusal of approval to the disciplinary action under Section 33(2) of the Act. The employer could not have, therefore, approached the Tribunal for seeking approval to its disciplinary action so long as the order of reference remained stayed by the order of the High Court. The industrial reference stood revived, only when the writ petition against the industrial reference was finally disposed of by the High Court on 12.4.1999. The industrial reference would be said to be pending only from 12.4.1999. The action of dismissal of the services of the workmen was taken on 31.3.1999. On that date, as a result of the order of the stay of the operation of reference by the High Court on 11.3.1999, no reference was pending for adjudication before the Tribunal. The provisions of Section 33 of the Act are attracted only when an industrial dispute is pending for adjudication and not merely when an order of reference is made by the Government. In the present case, proceedings were not pending before the Tribunal because of the stay of the order of reference itself. Bothn (2) of Section 33 employ the language during the pendency of any proceeding which clearly convey that obligation on the part of the employer under the said Section of seeking express permission for the purpose ofn (1) or approval for the purpose ofn (2) arises only when there are proceedings pending on industrial dispute before the Tribunal or other specified statutory adjudicatory authorities under the Act17. In the present case as on date of dismissal of workmen from service the interim order staying the operation of the order of reference was operative. Hence the question of dispute being pending on that day did not arise. As already stated above, in order to make an application under proviso to Section 33(2)(b) of the Act, pendency of the proceeding was essential. In this view the appellant companies did not contravene the provisions of Section 33(2)(b) of the ActNo doubt, the object of Section 33 of the Act is to protect the workman concerned during pendency of the proceedings in a dispute against victimization by the employer for having raised industrial dispute or his continuing the pending proceedings. Further it is to ensure that the proceedings in connection with the industrial disputes already pending should be concluded in a peaceful atmosphere and to say that no employer should, during pendency of the proceedings, take action of any kind mentioned in this said Section, giving rise to fresh disputes leading to straining the relations between the employer and the workman. But, then, the requirements of the said Section are to be satisfied in order to invoke the jurisdiction of the Tribunal under the said provision. For the purpose of the present case pendency of the proceedings before the Tribunal wase condition for making an application under the proviso to Section 33(2)(b) of the Act. Since the proceedings were not pending at the relevant time, i.e. on the date of dismissal of the workmen by virtue of the interim order granted by the High Court, the preliminary objection raised by the appellant Companies as to the very maintainability of complaint under Section 33A is valid and sustainable20. The question set out above in the beginning of this judgment is answered in the negative21. Thus, viewed from any angle in our considered opinion the impugned order cannot be sustained. The preliminary objection raised by the appellant companies is upheld and consequently the complaint made by then is dismissed as not maintainable. We must, however, make it clear that this order does not prejudice or preclude the respondent workmen from questioning the validity and correctness of the order of their dismissal from service by raising appropriate dispute in accordance with law.
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