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WAINGANGA BAHUDDESHIYA VIKAS SANSTHA THR. PRESIDENT B.B. KARANJEKAR Vs. KU. JAYA | find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed — if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373 ] and in Benjamin case [(1967) 1 LLJ 718 (SC)] . In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.?11) In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 wherein, the inquiry conducted to assess the fitness of an employee for continuing on probation was not found to be punitive, the Court held as under:"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. xx xx xx 31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellants ?work and conduct has not been found to be satisfactory?. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic. 32. We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here.?12) In Rajesh Kohli v. High Court of Jammu and Kashmir & Anr. (2010) 12 SCC 783 , again this Court held that order of termination is a fallout of unsatisfactory service adjudged on the basis of overall performance. The Court held as under:?28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.?13) In the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hoc employee. 14) Ms. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hoc basis. 15) Consequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside. | 1[ds]9) We find that the Division Bench has travelled much beyond the controversy involved in the writ petition. The appointment of respondent No. 1 is categorically on ad-hoc basis till such time full time Lecturer is appointed. The order of termination of services is simpliciter without any stigma noticing that the work is not satisfactory. The appointment of respondent No. 1 was not on probation but, it was purely ad-hoc appointment and the Management has kept right to terminate the services during ad-hoc period on account of unsatisfactoryIn the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hocMs. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hocConsequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside. | 1 | 2,011 | 364 | ### 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:
find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed — if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case [AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373 ] and in Benjamin case [(1967) 1 LLJ 718 (SC)] . In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.?11) In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 wherein, the inquiry conducted to assess the fitness of an employee for continuing on probation was not found to be punitive, the Court held as under:"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. xx xx xx 31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellants ?work and conduct has not been found to be satisfactory?. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case[(1999) 3 SCC 60 : 1999 SCC (L&S) 596] as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic. 32. We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here.?12) In Rajesh Kohli v. High Court of Jammu and Kashmir & Anr. (2010) 12 SCC 783 , again this Court held that order of termination is a fallout of unsatisfactory service adjudged on the basis of overall performance. The Court held as under:?28. In the present case, the order of termination is a fallout of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.?13) In the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hoc employee. 14) Ms. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hoc basis. 15) Consequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside.
### Response:
1
### Explanation:
9) We find that the Division Bench has travelled much beyond the controversy involved in the writ petition. The appointment of respondent No. 1 is categorically on ad-hoc basis till such time full time Lecturer is appointed. The order of termination of services is simpliciter without any stigma noticing that the work is not satisfactory. The appointment of respondent No. 1 was not on probation but, it was purely ad-hoc appointment and the Management has kept right to terminate the services during ad-hoc period on account of unsatisfactoryIn the present case, respondent No.1 was appointed on ad-hoc basis. Such temporary appointment pending filling up of a vacancy on regular basis does not confer any right at par with the candidate appointed on regular basis. The appointment of the respondent No.1 was not on probation as there is no such condition in the letter of appointment. The services of an employee can be dispensed with on account of unsatisfactory work. The decision to arrive at the unsatisfactory work is motive and not the foundation of termination of services. We have seen the opinion of the Principal, which does not contain any adverse comments but the comments are in relation to the work of the respondent No. 1, such comments cannot be made basis for setting aside the termination of an ad- hocMs. Mahalaxmi, learned senior counsel for the respondents, has referred to the orders of the High Court of Judicature at Bombay in Wainganga Bahu-uddeshiya & Ors. v. Diwakar & Ors. and Wainganga Bahu-uddeshiya Vikas Sanstha & Ors. v. Anil & Ors. to contend that the appellant has been taking punitive action against the members of the teaching faculty. However, we find that both the cases pertain to disciplinary action after conduct of regular inquiry which has no relevance with the termination of an employee appointed on ad-hocConsequently, we find that the order passed by the Division Bench of the High Court is clearly unsustainable in law. The same is set aside.
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PARAMJIT SINGH Vs. STATE OF PUNJAB | P. Venkatarama Reddi and S.B. Sinha, JJ. 1. The Appellant herein and one Kaka Singh faced trial before the Additional Sessions Judge, Patiala, for murdering one Dildar Singh on the evening of 18.10.1990. Kaka Singh was held guilty of the offence u/s 302, I.P.C. and the SLP filed by him in this Court was dismissed. We are told that Kaka Singh had served out the sentence. As far as the present Appellant is concerned, he was convicted under Sections 302/34, I.P.C. On appeal to the High Court, the conviction of both the accused was affirmed. 2. According to the prosecution case, on the crucial date which happened to be a Diwali day, the deceased Dildar Singh together with his brother Dilbagh Singh (P.W. 2) and his son Tejinder Singh (P.W. 3 aged 11 years) were returning from the fields after lighting the earthen lamps at the tubewell at about 7 p.m. When they reached the spot near the village school, the Appellant Paramjit Singh and the accused Kaka Singh were present there. The Appellant Kaka Singh being an Amritdhari Sikh was carrying a small kirpan. It is the case of the prosecution that about a year back, the Appellant was beaten up by Dildar Singh and Ors. and a panchayat was held at the village in connection with that incident that the matter was compromised. With this background of strained relations between the Appellant and the deceased, the Appellant instigated Kaka Singh not to allow Dildar Singh to escape. Immediately thereafter, Kaka Singh took out the kirpan and inflicted injuries on the chest and the left arm of the deceased. By the time the deceased was carried to the hospital, he succumbed to injuries. It is not necessary to go into the details of the investigation and the post-mortem as nothing turns out on that. The fact that Dildar Singh died on account of stab injuries on vital parts caused by Kaka Singh is not in dispute. The first information report was recorded at 10.15 p.m. on 18.10.1990 pursuant to the statement given by Dilbagh Singh (P.W. 2), the brother of the deceased. Dilbagh Singh and Tejinder Singh were examined as eye-witnesses. 3. The occurrence of the incident and the presence of the Appellant in the company of Kaka Singh at the scene of offence has been established beyond doubt. In fact, no serious attempt has been made to dislodge the findings of the trial court as affirmed by the High Court in this regard. The limited question that has been focused before us is whether on the facts established in this case, the Appellant can be said to have shared common intention with the actual assailant to put an end to the life of Dildar Singh. It is seen from the evidence that the Appellant was unarmed and even the other accused Kaka Singh did not carry any weapon other than the kirpan which he was having with him according to the tradition. The only evidence on the part played by the Appellant-accused is the exhortation made by him not to allow the deceased to go away. There was no exhortation to kill or there is no other overt act attributed to him which can possibly lead to the reasonable inference that the Appellant was keen that Kaka Singh should deal a fatal blow on Dildar Singh. In this fact situation as disclosed by the evidence of the eye-witnesses themselves, it is difficult to come to the conclusion that the Appellant intended to kill the deceased taking the aid of Kaka Singh. The necessary nexus between the exhortation attributed to the Appellant and the act done by the main accused is not, in our opinion, established. At any rate, there is a considerable doubt whether the Appellant entertained such intention pursuant to an incident that took place one year earlier, that too when it ended in a compromise. At the same time, the conduct of the Appellant in exhorting Kaka Singh not to allow him to escape and in not stopping the accused Kaka Singh from attacking with knife more than once would unmistakably indicate that by his exhortation, the Appellant wanted his companion Kaka Singh to cause harm to the deceased. Thus, the reasonable inference that could be drawn from the proved facts is that the Appellant at least instigated Kaka Singh to cause hurt to Dildar Singh and in pursuance of such instigation Kaka Singh acted instantaneously, though the magnitude of injuries inflicted on the deceased was something that was, in all probability, unintended by the Appellant. | 1[ds]It is seen from the evidence that the Appellant was unarmed and even the other accused Kaka Singh did not carry any weapon other than the kirpan which he was having with him according to the tradition. The only evidence on the part played by the Appellant-accused is the exhortation made by him not to allow the deceased to go away. There was no exhortation to kill or there is no other overt act attributed to him which can possibly lead to the reasonable inference that the Appellant was keen that Kaka Singh should deal a fatal blow on Dildar Singh. In this fact situation as disclosed by the evidence of the eye-witnesses themselves, it is difficult to come to the conclusion that the Appellant intended to kill the deceased taking the aid of Kaka Singh. The necessary nexus between the exhortation attributed to the Appellant and the act done by the main accused is not, in our opinion, established. At any rate, there is a considerable doubt whether the Appellant entertained such intention pursuant to an incident that took place one year earlier, that too when it ended in a compromise. At the same time, the conduct of the Appellant in exhorting Kaka Singh not to allow him to escape and in not stopping the accused Kaka Singh from attacking with knife more than once would unmistakably indicate that by his exhortation, the Appellant wanted his companion Kaka Singh to cause harm to the deceased. Thus, the reasonable inference that could be drawn from the proved facts is that the Appellant at least instigated Kaka Singh to cause hurt to Dildar Singh and in pursuance of such instigation Kaka Singh acted instantaneously, though the magnitude of injuries inflicted on the deceased was something that was, in all probability, unintended by the Appellant. | 1 | 831 | 326 | ### 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:
P. Venkatarama Reddi and S.B. Sinha, JJ. 1. The Appellant herein and one Kaka Singh faced trial before the Additional Sessions Judge, Patiala, for murdering one Dildar Singh on the evening of 18.10.1990. Kaka Singh was held guilty of the offence u/s 302, I.P.C. and the SLP filed by him in this Court was dismissed. We are told that Kaka Singh had served out the sentence. As far as the present Appellant is concerned, he was convicted under Sections 302/34, I.P.C. On appeal to the High Court, the conviction of both the accused was affirmed. 2. According to the prosecution case, on the crucial date which happened to be a Diwali day, the deceased Dildar Singh together with his brother Dilbagh Singh (P.W. 2) and his son Tejinder Singh (P.W. 3 aged 11 years) were returning from the fields after lighting the earthen lamps at the tubewell at about 7 p.m. When they reached the spot near the village school, the Appellant Paramjit Singh and the accused Kaka Singh were present there. The Appellant Kaka Singh being an Amritdhari Sikh was carrying a small kirpan. It is the case of the prosecution that about a year back, the Appellant was beaten up by Dildar Singh and Ors. and a panchayat was held at the village in connection with that incident that the matter was compromised. With this background of strained relations between the Appellant and the deceased, the Appellant instigated Kaka Singh not to allow Dildar Singh to escape. Immediately thereafter, Kaka Singh took out the kirpan and inflicted injuries on the chest and the left arm of the deceased. By the time the deceased was carried to the hospital, he succumbed to injuries. It is not necessary to go into the details of the investigation and the post-mortem as nothing turns out on that. The fact that Dildar Singh died on account of stab injuries on vital parts caused by Kaka Singh is not in dispute. The first information report was recorded at 10.15 p.m. on 18.10.1990 pursuant to the statement given by Dilbagh Singh (P.W. 2), the brother of the deceased. Dilbagh Singh and Tejinder Singh were examined as eye-witnesses. 3. The occurrence of the incident and the presence of the Appellant in the company of Kaka Singh at the scene of offence has been established beyond doubt. In fact, no serious attempt has been made to dislodge the findings of the trial court as affirmed by the High Court in this regard. The limited question that has been focused before us is whether on the facts established in this case, the Appellant can be said to have shared common intention with the actual assailant to put an end to the life of Dildar Singh. It is seen from the evidence that the Appellant was unarmed and even the other accused Kaka Singh did not carry any weapon other than the kirpan which he was having with him according to the tradition. The only evidence on the part played by the Appellant-accused is the exhortation made by him not to allow the deceased to go away. There was no exhortation to kill or there is no other overt act attributed to him which can possibly lead to the reasonable inference that the Appellant was keen that Kaka Singh should deal a fatal blow on Dildar Singh. In this fact situation as disclosed by the evidence of the eye-witnesses themselves, it is difficult to come to the conclusion that the Appellant intended to kill the deceased taking the aid of Kaka Singh. The necessary nexus between the exhortation attributed to the Appellant and the act done by the main accused is not, in our opinion, established. At any rate, there is a considerable doubt whether the Appellant entertained such intention pursuant to an incident that took place one year earlier, that too when it ended in a compromise. At the same time, the conduct of the Appellant in exhorting Kaka Singh not to allow him to escape and in not stopping the accused Kaka Singh from attacking with knife more than once would unmistakably indicate that by his exhortation, the Appellant wanted his companion Kaka Singh to cause harm to the deceased. Thus, the reasonable inference that could be drawn from the proved facts is that the Appellant at least instigated Kaka Singh to cause hurt to Dildar Singh and in pursuance of such instigation Kaka Singh acted instantaneously, though the magnitude of injuries inflicted on the deceased was something that was, in all probability, unintended by the Appellant.
### Response:
1
### Explanation:
It is seen from the evidence that the Appellant was unarmed and even the other accused Kaka Singh did not carry any weapon other than the kirpan which he was having with him according to the tradition. The only evidence on the part played by the Appellant-accused is the exhortation made by him not to allow the deceased to go away. There was no exhortation to kill or there is no other overt act attributed to him which can possibly lead to the reasonable inference that the Appellant was keen that Kaka Singh should deal a fatal blow on Dildar Singh. In this fact situation as disclosed by the evidence of the eye-witnesses themselves, it is difficult to come to the conclusion that the Appellant intended to kill the deceased taking the aid of Kaka Singh. The necessary nexus between the exhortation attributed to the Appellant and the act done by the main accused is not, in our opinion, established. At any rate, there is a considerable doubt whether the Appellant entertained such intention pursuant to an incident that took place one year earlier, that too when it ended in a compromise. At the same time, the conduct of the Appellant in exhorting Kaka Singh not to allow him to escape and in not stopping the accused Kaka Singh from attacking with knife more than once would unmistakably indicate that by his exhortation, the Appellant wanted his companion Kaka Singh to cause harm to the deceased. Thus, the reasonable inference that could be drawn from the proved facts is that the Appellant at least instigated Kaka Singh to cause hurt to Dildar Singh and in pursuance of such instigation Kaka Singh acted instantaneously, though the magnitude of injuries inflicted on the deceased was something that was, in all probability, unintended by the Appellant.
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Secretary to Govt. Commercial Taxes and Registration Department, Secretariat and Ors Vs. A.Singamuthu | something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1 , M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636 , S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279 , Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1."(emphasis added) 16. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondents service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006. 17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs. 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also. 18. It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. | 1[ds]9. Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciouslyaccepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.In the present case, the respondent herein was engaged to fetch water, to sweep and other connected menial works for one or two hours in a day as part-time Masalchi. The post of part-time Masalchi is not included in ClassIV or V of the Tamil Nadu Basic Service. Further a part-time Masalchi cannot be treated as equivalent to the post of Masalchi (full- time) basis because the post of part-time Masalchi does not come under the purview of service rules. The respondent herein was only a part-time Masalchi and hence the question of applying G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006, which is applicable only to the daily wage full-time employees,does not arise.The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondents service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs. 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012.impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. | 1 | 4,635 | 933 | ### 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:
something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1 , M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636 , S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279 , Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1."(emphasis added) 16. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondents service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006. 17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs. 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also. 18. It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside.
### Response:
1
### Explanation:
9. Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciouslyaccepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.In the present case, the respondent herein was engaged to fetch water, to sweep and other connected menial works for one or two hours in a day as part-time Masalchi. The post of part-time Masalchi is not included in ClassIV or V of the Tamil Nadu Basic Service. Further a part-time Masalchi cannot be treated as equivalent to the post of Masalchi (full- time) basis because the post of part-time Masalchi does not come under the purview of service rules. The respondent herein was only a part-time Masalchi and hence the question of applying G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006, which is applicable only to the daily wage full-time employees,does not arise.The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondents service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs. 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012.impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside.
|
Secretary, Home (Endowments), Andhra Pradesh Vs. Digyadarsam Rajindra Ram Dasjee | conditions are necessary, viz., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession to such office. In this case, it is possible to say, in view of the claim made by Devendra Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in sub-sec. (1), of Section 53, the two conditions adverted to above, will have to exist. In this case it is the claim of the appellant that there was a vacancy, in the office of the trustee of the Math, on March 18, 1962, when Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, the respondent succeeded to the office of the Mahant. Therefore, the point to be considered is, as to whether a vacancy, has occurred, in the office of the trustee of the Math, on March l8, 1962.That there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) when it deals with two different contingencies, providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math and there is a dispute in respect of the succession to such office. That is, the office has not been filled in, by anybody having a prima facie legal right to assume management. Similarly, the second contingency, contemplated under Section 53 (1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact in the sense that nobody with any legal right has assumed office of the trustee of a Math. 13. In this case, as we have pointed out earlier, the High Court has accepted the claim of the respondent that by virtue of the Panchayat agreement dated Oct. 29, 1947, and the compromise agreement, dated July 15, 1961 the respondent has succeeded to the office of the trustee of the Math, on March 18, 1962, on the death of Chetam Doss. The supreme authority, according to the High Court, the Akada Panchayat, has also approved of the said appointment, by resolution of the same date. We do not propose to consider the findings recorded in O. S. 50 of 1962, which are no doubt in favour of the respondent, because that decision is the subject of an appeal, in A. S. No. 476 of 1966.Nor do we propose to consider the claim of Bhagwan Doss, in O. S. 69 of 1965 which is still pending adjudication, at the hands of the Court. But even without reference to those litigations, the view of the High Court that there is no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under Section 58 (1), can he accepted as correct, for the other reasons, mentioned by us, earlier. 14. Mr. Ram Reddy, learned counsel for the appellants, further points out that in this case, the respondent is in management of the Math, by virtue of the appointment made, by the State Government, on June 5, l962, and therefore the State Government is entitled to take disciplinary action against him for breach of conditions, under which he was holding that office Counsel also invited our attention to the averments made by the respondent himself, in Writ Petition No. 602 of 1962, that the State Government has appointed him as interim Mahant. The stand taken by the respondent, in Writ Petition No. 602 of 1962, cannot assist the appellant because he was interested then in fighting the claim made by Devendra Dass, in the said writ petition. In resisting such claim, he has, no doubt, made reference to the fact that his right to function, as Mahant, cannot be disturbed, as the State Government has appointed him as interim Mahant. Therefore, the stand taken by the respondent in the said writ petition, must be understood in the said context. 15. No doubt, normally, if it is established that the respondents only right to function as Manager of this institution, is exclusively on the basis of the Government order, dated June 5, 1962, there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action, against the respondent. But the facts in this case show that the position is entirely different.If the respondent, as held by the High Court-with which view we are in agreement-has succeeded to the office of the trustee of the Math, on the death of Chetam Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that respondent is not holding the office of the Mahant, exclusively on the basis of the order of the Government, dated June 5, 1962, it follows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that virtually amounts to a removal of the trustee of a Math. The removal of a trustee of a Math can be done only in the manner, and in the circumstances mentioned in Section 52 of the Act. Therefore, the view of the High Court that the order of the Government, placing the respondent under suspension is not valid, is correct. | 0[ds]That there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) when it deals with two different contingencies, providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math and there is a dispute in respect of the succession to such office. That is, the office has not been filled in, by anybody having a prima facie legal right to assume management. Similarly, the second contingency, contemplated under Section 53 (1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact in the sense that nobody with any legal right has assumed office of the trustee of a Math13. In this case, as we have pointed out earlier, the High Court has accepted the claim of the respondent that by virtue of the Panchayat agreement dated Oct. 29, 1947, and the compromise agreement, dated July 15, 1961 the respondent has succeeded to the office of the trustee of the Math, on March 18, 1962, on the death of Chetam Doss. The supreme authority, according to the High Court, the Akada Panchayat, has also approved of the said appointment, by resolution of the same date. We do not propose to consider the findings recorded in O. S. 50 of 1962, which are no doubt in favour of the respondent, because that decision is the subject of an appeal, in A. S. No. 476 of 1966.Nor do we propose to consider the claim of Bhagwan Doss, in O. S. 69 of 1965 which is still pending adjudication, at the hands of the Court. But even without reference to those litigations, the view of the High Court that there is no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under Section 58 (1), can he accepted as correct, for the other reasons, mentioned by us, earlierThe stand taken by the respondent, in Writ Petition No. 602 of 1962, cannot assist the appellant because he was interested then in fighting the claim made by Devendra Dass, in the said writ petition. In resisting such claim, he has, no doubt, made reference to the fact that his right to function, as Mahant, cannot be disturbed, as the State Government has appointed him as interim Mahant. Therefore, the stand taken by the respondent in the said writ petition, must be understood in the said context15. No doubt, normally, if it is established that the respondents only right to function as Manager of this institution, is exclusively on the basis of the Government order, dated June 5, 1962, there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action, against the respondent. But the facts in this case show that the position is entirely different.If the respondent, as held by the High Court-with which view we are in agreement-has succeeded to the office of the trustee of the Math, on the death of Chetam Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that respondent is not holding the office of the Mahant, exclusively on the basis of the order of the Government, dated June 5, 1962, it follows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that virtually amounts to a removal of the trustee of a Math. The removal of a trustee of a Math can be done only in the manner, and in the circumstances mentioned in Section 52 of the Act. Therefore, the view of the High Court that the order of the Government, placing the respondent under suspension is not valid, is correctThe answer to the above question is to be decided, by reference to Section 53 of the Act. Section 52 of the Act occurs in Chapter IV, relating to Maths.n (1) of that Section, enables the Commissioner or any two or more persons, having interest and having obtained the consent, in writing of the Commissioner, to institute a suit, to obtain a decree for removing the trustee of a math or a specific endowment attached to a math, for any one or more of the grounds mentioned, in clauses (a) to (f), therein. Section 53, which is the material Section, and which relates to filling of vacancies, is as follows :53. (1) When a vacancy occurs in the office of the trustee of a math or specific endowment attached to a math and there is a dispute respecting the right of succession to such office or,when such vacancy cannot be filled up immediately, orwhen the trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, orwhen the trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unable to discharge the functions of the trustee,the Assistant Commissioner may take such steps and pass such order as he thinks proper for the temporary custody and protection of the endowments of the math or of the specific endowment, as the case may be, and shall report the matter forthwith to the Commissioner(2) Upon the receipt of such report, if the Commissioner, after making such inquiry as he deems necessary, is satisfied that an arrangement for the administration of the math and its endowments or of the specific endowment, as the case may be, is necessary, he shall make such arrangement as he thinks fit until the disability of the trustee ceases or another trustee succeeds to the office as the case may be(3) In making any such arrangement, the Commissioner shall have due regard to the claims of the disciples of the math, if any(4) Nothing in this Section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902Section 53 (1) contemplates four contingencies, under which the Assistant Commissioner may take steps for the temporary custody and protection of the math. We are concerned, in this case, only with the first contingency, referred to in that. Before that provision can be invoked, two conditions are necessary, viz., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession to such office. In this case, it is possible to say, in view of the claim made by Devendra Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in. (1), of Section 53, the two conditions adverted to above, will have to exist. In this case it is the claim of the appellant that there was a vacancy, in the office of the trustee of the Math, on March 18, 1962, when Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, the respondent succeeded to the office of the Mahant. Therefore, the point to be considered is, as to whethera vacancy, has occurred, in the office of the trustee of the Math, on March l8,t there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) when it deals with two different contingencies, providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math and there is a dispute in respect of the succession to such office. That is, the office has not been filled in, by anybody having a prima facie legal right to assume management. Similarly, the second contingency, contemplated under Section 53 (1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact in the sense that nobody with any legal right has assumed office of the trustee of a | 0 | 4,246 | 1,695 | ### 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:
conditions are necessary, viz., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession to such office. In this case, it is possible to say, in view of the claim made by Devendra Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in sub-sec. (1), of Section 53, the two conditions adverted to above, will have to exist. In this case it is the claim of the appellant that there was a vacancy, in the office of the trustee of the Math, on March 18, 1962, when Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, the respondent succeeded to the office of the Mahant. Therefore, the point to be considered is, as to whether a vacancy, has occurred, in the office of the trustee of the Math, on March l8, 1962.That there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) when it deals with two different contingencies, providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math and there is a dispute in respect of the succession to such office. That is, the office has not been filled in, by anybody having a prima facie legal right to assume management. Similarly, the second contingency, contemplated under Section 53 (1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact in the sense that nobody with any legal right has assumed office of the trustee of a Math. 13. In this case, as we have pointed out earlier, the High Court has accepted the claim of the respondent that by virtue of the Panchayat agreement dated Oct. 29, 1947, and the compromise agreement, dated July 15, 1961 the respondent has succeeded to the office of the trustee of the Math, on March 18, 1962, on the death of Chetam Doss. The supreme authority, according to the High Court, the Akada Panchayat, has also approved of the said appointment, by resolution of the same date. We do not propose to consider the findings recorded in O. S. 50 of 1962, which are no doubt in favour of the respondent, because that decision is the subject of an appeal, in A. S. No. 476 of 1966.Nor do we propose to consider the claim of Bhagwan Doss, in O. S. 69 of 1965 which is still pending adjudication, at the hands of the Court. But even without reference to those litigations, the view of the High Court that there is no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under Section 58 (1), can he accepted as correct, for the other reasons, mentioned by us, earlier. 14. Mr. Ram Reddy, learned counsel for the appellants, further points out that in this case, the respondent is in management of the Math, by virtue of the appointment made, by the State Government, on June 5, l962, and therefore the State Government is entitled to take disciplinary action against him for breach of conditions, under which he was holding that office Counsel also invited our attention to the averments made by the respondent himself, in Writ Petition No. 602 of 1962, that the State Government has appointed him as interim Mahant. The stand taken by the respondent, in Writ Petition No. 602 of 1962, cannot assist the appellant because he was interested then in fighting the claim made by Devendra Dass, in the said writ petition. In resisting such claim, he has, no doubt, made reference to the fact that his right to function, as Mahant, cannot be disturbed, as the State Government has appointed him as interim Mahant. Therefore, the stand taken by the respondent in the said writ petition, must be understood in the said context. 15. No doubt, normally, if it is established that the respondents only right to function as Manager of this institution, is exclusively on the basis of the Government order, dated June 5, 1962, there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action, against the respondent. But the facts in this case show that the position is entirely different.If the respondent, as held by the High Court-with which view we are in agreement-has succeeded to the office of the trustee of the Math, on the death of Chetam Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that respondent is not holding the office of the Mahant, exclusively on the basis of the order of the Government, dated June 5, 1962, it follows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that virtually amounts to a removal of the trustee of a Math. The removal of a trustee of a Math can be done only in the manner, and in the circumstances mentioned in Section 52 of the Act. Therefore, the view of the High Court that the order of the Government, placing the respondent under suspension is not valid, is correct.
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is exclusively on the basis of the Government order, dated June 5, 1962, there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action, against the respondent. But the facts in this case show that the position is entirely different.If the respondent, as held by the High Court-with which view we are in agreement-has succeeded to the office of the trustee of the Math, on the death of Chetam Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that respondent is not holding the office of the Mahant, exclusively on the basis of the order of the Government, dated June 5, 1962, it follows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that virtually amounts to a removal of the trustee of a Math. The removal of a trustee of a Math can be done only in the manner, and in the circumstances mentioned in Section 52 of the Act. Therefore, the view of the High Court that the order of the Government, placing the respondent under suspension is not valid, is correctThe answer to the above question is to be decided, by reference to Section 53 of the Act. Section 52 of the Act occurs in Chapter IV, relating to Maths.n (1) of that Section, enables the Commissioner or any two or more persons, having interest and having obtained the consent, in writing of the Commissioner, to institute a suit, to obtain a decree for removing the trustee of a math or a specific endowment attached to a math, for any one or more of the grounds mentioned, in clauses (a) to (f), therein. Section 53, which is the material Section, and which relates to filling of vacancies, is as follows :53. (1) When a vacancy occurs in the office of the trustee of a math or specific endowment attached to a math and there is a dispute respecting the right of succession to such office or,when such vacancy cannot be filled up immediately, orwhen the trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, orwhen the trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unable to discharge the functions of the trustee,the Assistant Commissioner may take such steps and pass such order as he thinks proper for the temporary custody and protection of the endowments of the math or of the specific endowment, as the case may be, and shall report the matter forthwith to the Commissioner(2) Upon the receipt of such report, if the Commissioner, after making such inquiry as he deems necessary, is satisfied that an arrangement for the administration of the math and its endowments or of the specific endowment, as the case may be, is necessary, he shall make such arrangement as he thinks fit until the disability of the trustee ceases or another trustee succeeds to the office as the case may be(3) In making any such arrangement, the Commissioner shall have due regard to the claims of the disciples of the math, if any(4) Nothing in this Section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902Section 53 (1) contemplates four contingencies, under which the Assistant Commissioner may take steps for the temporary custody and protection of the math. We are concerned, in this case, only with the first contingency, referred to in that. Before that provision can be invoked, two conditions are necessary, viz., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession to such office. In this case, it is possible to say, in view of the claim made by Devendra Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in. (1), of Section 53, the two conditions adverted to above, will have to exist. In this case it is the claim of the appellant that there was a vacancy, in the office of the trustee of the Math, on March 18, 1962, when Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, the respondent succeeded to the office of the Mahant. Therefore, the point to be considered is, as to whethera vacancy, has occurred, in the office of the trustee of the Math, on March l8,t there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) when it deals with two different contingencies, providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math and there is a dispute in respect of the succession to such office. That is, the office has not been filled in, by anybody having a prima facie legal right to assume management. Similarly, the second contingency, contemplated under Section 53 (1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact in the sense that nobody with any legal right has assumed office of the trustee of a
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Oswal Agro Mills Ltd Vs. Hindustan Petroleum Corp. Ltd. | binding to me, to my heirs, executors, assignees, assigns and to everybody derives title through or under me.Dated this 7th day of January, 2011Yours faithfullyOswalAgro Mills Ltd.” In view of this Indemnity Bond, the Municipal Corporation had no reason to file any appeal against the order of the High Court, and we disapprove of the same. We refrain from saying anything more. 16. (i) It was contended on behalf of Oswal, as well as on behalf of the Municipal Corporation, that the Corporation is not required to go into the security aspect and the environmental clearance as a pre-requisite before any such proposal is cleared. It was submitted that this was outside its jurisdiction. In this behalf, we may refer to the relevant portion of DCR No.16 which falls in Part II of the DC Regulation of 1991 containing ‘General planning requirements, Land uses and manner of development’. The relevant portion reads as follows:- “16. Requirements of SitesNo land shall be used as a site for the construction of buildings-(a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time;(b) ……(c) …..(d) …..(e) if the use of the said site is for a purpose which in the Commissioner’s opinion may be a source of danger to the health and safety of the inhabitants of the neighbourhood;(f) …..(g) …..(h) …..(i) …..(j) …..(k) …..(l) …..(m) …..(n) if the proposed development is likely to involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or on historical/architectural/ aesthetical buildings and precincts or is not in the public interest.” Even DCR No.64 which gives the ‘Discretionary powers’ to the Commissioner, does not permit him under sub-clause (b) thereof to grant relaxation which will affect safety, fire safety and public safety of the inhabitants of the building and the neighbourhood. Thus, this power is coupled with the duty to give paramount importance to safety. These provisions cast an obligation on the Municipal Commissioner to take into consideration the objections in this behalf. (ii) DCR 57 (4) (c) was relied upon by the appellant and the Municipal Corporation in defence of the change of user. We are conscious that this DCR contains a non-obstante clause, but all that it states is that ‘notwithstanding anything contained above’ (i.e. earlier in the DCRs), such a change of user may be permitted. Thus, it is an enabling provision, though it does not mean that the power therein is to be exercised disregarding the objections that are raised. The power under DCR 57 (4) (c) could not be exercised as a stand alone power, when specific objections relatable to DCR 16 had been raised. MRTP Act being an act to provide for planned development, the provisions of the DCRs will have to be read purposively and harmoniously, and not disjunctively. The appellants had relied upon paragraphs 41 and 42 of the judgment of this Court in Bombay Dyeing & MFG Co. Ltd. Vs. Bombay Environmental Action Group and Ors. reported in 2006 (3) SCC 434. However, all that these paragraphs state is that DCR 57 (4) (c) is pari materia with DCR 56 (3) (c), which is on the General Industrial Zone (I-2 Zone). However, the judgment does not lead us anywhere further on the issue in hand. As against that, we must note that this Court has held that the wide amplitude of a non-obstante clause must be kept confined to the legislative policy, and it can be given effect to, to the extent Parliament intended and not beyond the same (See Para 36 of ICICI Bank Vs. Sidco Leather Ltd. 2006 (10) SCC 452). HPCL had lodged their objections, and the Municipal authorities were required to consider the same but they have not. Rather, they refused to consider these objections on a totally erroneous reading of the DCRs as can be seen from their earlier referred letter dated 28.10.2010. Where human habitation is permitted in proximity of hazardous plants, there is an immediate, as well as long term, danger of exposure to health hazards. The planning authority cannot ignore these aspects. The public interest cannot be sacrificed at the altar of commercial interests. The submissions of the Municipal Corporation and Oswal are clearly contrary to the above regulations, and are therefore rejected. (iii) Oswal and the Municipal Corporation had contended that the Writ Petition was belated. With reference to this submission, we must note that the I.O.D was issued to Oswal on 11.11.2010, and the Commencement Certificate (to start the construction upto the stilt) was issued on 11.11.2011. The Writ Petition filed on 16.9.2011 could not therefore be said to have been filed belatedly. 17. Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of the appellant’s buildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law. In | 0[ds]13. (i) Our Learned Brother Singhvi, J. appears to have been persuaded to accept the submissions of the appellant in view of the affidavit of Dr. Seema Garg, Vice President of the appellant. The affidavit points out that on the southern side of the refinery, the Gavanapada Village is located with a population of about 7000 people. We must, however, note that this is an old village establishment and one cannot do away with it. It is stated that on the eastern side there is a slum at a distance of about 18.53 meters. On the northern side, there are two slums at Vishnu Nagar and Bharat Nagar, and on the western side, there are some shops and hutments. In our view, HPCL cannot be held responsible for these structures. We must, in any case, note that they are all structures of an insignificant height. On eastern side, there is a high-rise tower of 14 storeys which is almost completed, but yet not occupied, but which had all throughout been objected to by HPCL. On the northern side, there are more than 50 multi-storey buildings constructed in the Slum Rehabilitation Scheme which also are not occupied. We must, however, note that because of the resistance of the first respondent, the upper floors of these buildings are to be allotted to the Police department.(ii) The affidavit of Dr. Seema Garg has emphasized all these aspects which have been quoted in the order prepared by our Learned Brother, but he has not considered the above explanation of HPCL in that behalf. It has been stated in paragraph 22 of his judgment that the High Court has allowed the Writ Petition by relying upon the report of Intelligence Bureau and the affidavit of the Assistant Commissioner of Police, but according to him they are not based on any scientific study or expert analysis. In our view, the statement in the affidavit of the Assistant Commissioner of Police as well as the extracts from the report of the Intelligence Bureau are quite cogent. The view of the Police Commissioner is reinforced by the Central Home Ministry on the background of the terrorist attack in the city on 26.11.2008. It has also been mentioned in paragraph 23 of his judgment that some other buildings are coming up at a distance of about 800 meters from the refinery. As stated above that all throughout these developments have been objected to by HPCL.Therefore, HPCL cannot be faulted for such constructions which are permitted by the Municipal Corporation. Besides, merely because such constructions have been permitted so far, that does not justify any more high-rise constructions coming up in the vicinity. We are aware of the serious accidents which took place at the IOCL refinery at Jaipur, and also at the Union Carbide Factory, Bhopal. Any such accident would cause serious loss of life and property, and would be hazardous to the occupants of these constructions.14. What is most relevant to note is that when the refinery of the first respondent came up in the year 1952, and the other earlier referred vital installations of national importance also came up in the nearby area, the population over there was sparse, and that is why these installations were permitted to be set up at locations in the Mahul area of Chembur far away from the Island city of Mumbai. Now the city has grown-up, as also the suburbs, and people are trying to occupy the vacant spaces wherever available. The Municipal Corporation and the State of Maharashtra ought to have checked and stopped these constructions, particularly the high-rise ones in the vicinity of these installations, but they have failed in doing the same. It cannot, however, justify further dereliction of their responsibilities. Merely because some constructions have been permitted at some distance from the refinery of the first respondent, does not mean that further high-rise constructions should be permitted to come up nearby. Two wrongs do not make one right.Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of thebuildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law. | 0 | 13,040 | 949 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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binding to me, to my heirs, executors, assignees, assigns and to everybody derives title through or under me.Dated this 7th day of January, 2011Yours faithfullyOswalAgro Mills Ltd.” In view of this Indemnity Bond, the Municipal Corporation had no reason to file any appeal against the order of the High Court, and we disapprove of the same. We refrain from saying anything more. 16. (i) It was contended on behalf of Oswal, as well as on behalf of the Municipal Corporation, that the Corporation is not required to go into the security aspect and the environmental clearance as a pre-requisite before any such proposal is cleared. It was submitted that this was outside its jurisdiction. In this behalf, we may refer to the relevant portion of DCR No.16 which falls in Part II of the DC Regulation of 1991 containing ‘General planning requirements, Land uses and manner of development’. The relevant portion reads as follows:- “16. Requirements of SitesNo land shall be used as a site for the construction of buildings-(a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time;(b) ……(c) …..(d) …..(e) if the use of the said site is for a purpose which in the Commissioner’s opinion may be a source of danger to the health and safety of the inhabitants of the neighbourhood;(f) …..(g) …..(h) …..(i) …..(j) …..(k) …..(l) …..(m) …..(n) if the proposed development is likely to involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or on historical/architectural/ aesthetical buildings and precincts or is not in the public interest.” Even DCR No.64 which gives the ‘Discretionary powers’ to the Commissioner, does not permit him under sub-clause (b) thereof to grant relaxation which will affect safety, fire safety and public safety of the inhabitants of the building and the neighbourhood. Thus, this power is coupled with the duty to give paramount importance to safety. These provisions cast an obligation on the Municipal Commissioner to take into consideration the objections in this behalf. (ii) DCR 57 (4) (c) was relied upon by the appellant and the Municipal Corporation in defence of the change of user. We are conscious that this DCR contains a non-obstante clause, but all that it states is that ‘notwithstanding anything contained above’ (i.e. earlier in the DCRs), such a change of user may be permitted. Thus, it is an enabling provision, though it does not mean that the power therein is to be exercised disregarding the objections that are raised. The power under DCR 57 (4) (c) could not be exercised as a stand alone power, when specific objections relatable to DCR 16 had been raised. MRTP Act being an act to provide for planned development, the provisions of the DCRs will have to be read purposively and harmoniously, and not disjunctively. The appellants had relied upon paragraphs 41 and 42 of the judgment of this Court in Bombay Dyeing & MFG Co. Ltd. Vs. Bombay Environmental Action Group and Ors. reported in 2006 (3) SCC 434. However, all that these paragraphs state is that DCR 57 (4) (c) is pari materia with DCR 56 (3) (c), which is on the General Industrial Zone (I-2 Zone). However, the judgment does not lead us anywhere further on the issue in hand. As against that, we must note that this Court has held that the wide amplitude of a non-obstante clause must be kept confined to the legislative policy, and it can be given effect to, to the extent Parliament intended and not beyond the same (See Para 36 of ICICI Bank Vs. Sidco Leather Ltd. 2006 (10) SCC 452). HPCL had lodged their objections, and the Municipal authorities were required to consider the same but they have not. Rather, they refused to consider these objections on a totally erroneous reading of the DCRs as can be seen from their earlier referred letter dated 28.10.2010. Where human habitation is permitted in proximity of hazardous plants, there is an immediate, as well as long term, danger of exposure to health hazards. The planning authority cannot ignore these aspects. The public interest cannot be sacrificed at the altar of commercial interests. The submissions of the Municipal Corporation and Oswal are clearly contrary to the above regulations, and are therefore rejected. (iii) Oswal and the Municipal Corporation had contended that the Writ Petition was belated. With reference to this submission, we must note that the I.O.D was issued to Oswal on 11.11.2010, and the Commencement Certificate (to start the construction upto the stilt) was issued on 11.11.2011. The Writ Petition filed on 16.9.2011 could not therefore be said to have been filed belatedly. 17. Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of the appellant’s buildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law. In
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13. (i) Our Learned Brother Singhvi, J. appears to have been persuaded to accept the submissions of the appellant in view of the affidavit of Dr. Seema Garg, Vice President of the appellant. The affidavit points out that on the southern side of the refinery, the Gavanapada Village is located with a population of about 7000 people. We must, however, note that this is an old village establishment and one cannot do away with it. It is stated that on the eastern side there is a slum at a distance of about 18.53 meters. On the northern side, there are two slums at Vishnu Nagar and Bharat Nagar, and on the western side, there are some shops and hutments. In our view, HPCL cannot be held responsible for these structures. We must, in any case, note that they are all structures of an insignificant height. On eastern side, there is a high-rise tower of 14 storeys which is almost completed, but yet not occupied, but which had all throughout been objected to by HPCL. On the northern side, there are more than 50 multi-storey buildings constructed in the Slum Rehabilitation Scheme which also are not occupied. We must, however, note that because of the resistance of the first respondent, the upper floors of these buildings are to be allotted to the Police department.(ii) The affidavit of Dr. Seema Garg has emphasized all these aspects which have been quoted in the order prepared by our Learned Brother, but he has not considered the above explanation of HPCL in that behalf. It has been stated in paragraph 22 of his judgment that the High Court has allowed the Writ Petition by relying upon the report of Intelligence Bureau and the affidavit of the Assistant Commissioner of Police, but according to him they are not based on any scientific study or expert analysis. In our view, the statement in the affidavit of the Assistant Commissioner of Police as well as the extracts from the report of the Intelligence Bureau are quite cogent. The view of the Police Commissioner is reinforced by the Central Home Ministry on the background of the terrorist attack in the city on 26.11.2008. It has also been mentioned in paragraph 23 of his judgment that some other buildings are coming up at a distance of about 800 meters from the refinery. As stated above that all throughout these developments have been objected to by HPCL.Therefore, HPCL cannot be faulted for such constructions which are permitted by the Municipal Corporation. Besides, merely because such constructions have been permitted so far, that does not justify any more high-rise constructions coming up in the vicinity. We are aware of the serious accidents which took place at the IOCL refinery at Jaipur, and also at the Union Carbide Factory, Bhopal. Any such accident would cause serious loss of life and property, and would be hazardous to the occupants of these constructions.14. What is most relevant to note is that when the refinery of the first respondent came up in the year 1952, and the other earlier referred vital installations of national importance also came up in the nearby area, the population over there was sparse, and that is why these installations were permitted to be set up at locations in the Mahul area of Chembur far away from the Island city of Mumbai. Now the city has grown-up, as also the suburbs, and people are trying to occupy the vacant spaces wherever available. The Municipal Corporation and the State of Maharashtra ought to have checked and stopped these constructions, particularly the high-rise ones in the vicinity of these installations, but they have failed in doing the same. It cannot, however, justify further dereliction of their responsibilities. Merely because some constructions have been permitted at some distance from the refinery of the first respondent, does not mean that further high-rise constructions should be permitted to come up nearby. Two wrongs do not make one right.Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of thebuildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law.
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Dattatreya Shanker Mote and Others Vs. Anand Chintaman Datar and Others | 1944 Nag 1) the plea of a defendant charge-holder under a decree was repelled as against the plaintiff-respondent who had brought a suit to enforce a subsequent mortgage because the mortgagee had no notice of the charge. Grille, C.J. observed, with regard to the distinction between the unamended and amended sections (at page 5) :The main difference to be noticed in the two section is that the section as amended explicitly states that no charge would be enforced against a person taking the property for consideration and without notice of the charge. The amendment was made in order to set at rest the conflict of decisions that existed before. The view taken by the Judicial Commissioners Court, Nagpur, before the amendment was that no charge could be enforced against property in the hands of a person to whom such property had been transferred for consideration and without notice of the charge : 15 NLJ 141. This view was approved in 30 NLR 303, at p. 305. The view taken in several other cases was that inasmuch as there is no transfer of interest in property in a charge while there is such a transfer of interest in a mortgage a charge would be good against subsequent transferees such as mortgagees or purchasers only if the subsequent transferees had notice of the prior charge. (33 Cal 985, 993 : 38 All 254, 258 : 42 Cal 625) 65. Of course, the precise question raised before us was not actually raised in the cases mentioned above, and, therefore, it was not decided there. But, each of these decisions rests on the assumption that a simple mortgagee is also covered by the protection conferred by the amended proviso. If this has been the basis on which decisions have been given until now since the amendment of Section 100 by Act XX of 1929, we should, I think, be most reluctant to tread a new path on the meaning of such a statutory provision unless we could not avoid doing so because some clear misconception of the law is revealed.66. Another contention advanced on behalf of the appellant was that their prior rights would be protected by either the terms of or the principles underlying Section 48 of the Act which reads as follows :Section 48. Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.67. The contention was that, although a charge may not be described as "a transfer", yet, the result of Section 100 of the Act was to equate it with a simple mortgage which is a transfer because Section 100 says : "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge". I think that, apart from the qualifying words, "so far as may be", used by Section 100 of the Act, a condition essential to the applicability of Section 48 of the Act is that there must be an actual transfer of property. Further more, another condition for invoking Section 48 of the Act is that the previous and the subsequently created rights "cannot all exist or be exercised to their full extent together". In the case before us, this does not appear from facts found. In any case, the prior right of the charge-holders could only obtain priority provided other things are not unequal. This follows from words used indicating that each of the two or more transactions must at least be a "transfer". Furthermore, the conditions of priority as between the holder of a previous charge and a subsequent simple mortgage are completely covered by Section 100 of the Act. The principle underlying Section 48 is one expressed in the maxim of Equity : "Qui prior est tempore potior est jure" (first in time is stronger in right). This principle, applied to ranking between rival equitable claims, is applied by Section 48 to contending claims of otherwise equal legal validity. The effect of Section 100 is that wile a charge, which is not a "transfer" of property, gets recognition as a legally enforceable claim, that enforceability is subjected by the proviso to the requirements of a prior notice in order to give it precedence over a legally valid transfer of property. The rights of the appellants charge-holders could only be exercised, on facts found, subject to the priority obtained by the respondent mortgagees rights. This clear result of the law, as contained in Section 100 of the Act, cannot be defeated by invoking either the terms of or the principles underlying Section 48 of the Act read with the first part only of Section 100 of the Act. If the respondent simple mortgagee Oswal could not have claimed the benefit of the proviso to Section 100, the first part of Section 100, read with Section 48 of the Act, could have come to the aid of the appellants. But, on the view adopted by me, this line of reasoning does not help the unfortunate charge-holders at all.68. Lastly, learned Counsel for the appellants suggested that the mortgages made subsequent to the charge by a decree in favour of the Motes were struck by the doctrine of Lis Pendens. The Bombay High Court had repelled this contention on two grounds : firstly, the properties which were subsequently charged with the payment of the debts to the Motes were not the subject-matter of Suit No. 741 of 1938 : and, secondly, there was no Darkhast or execution application pending at the time when the simple mortgages in favour of the plaintiff-respondent Oswal were created in 1949. I agree with these reasons for holding that the doctrine of Lis Pendens has no application on the facts of the case before us. | 0[ds]It is apparent from the provisions of the above section that a charge does not amount to a mortgage though all the provisions which apply to a simple mortgage contained in the preceding provisions shall, so far as may be, apply to such charge. While a charge can be created either by act of parties or operation of law, a mortgage can only be created by act of parties. A charge is thus a wider term as it includes also a mortgage, in that every mortgage is a charge, but every charge is not a mortgage. The Legislature while defining a charge in Section 100 indicated specifically that it does not amount to a mortgage. It may be incongruous and in terms even appear to be an antithesis to say on the one hand that a charge does not amount to a mortgage and yet apply the provisions applicable to a simple mortgage to it as if it has been equated to a simple mortgage both in respect of the nature and efficacy of the security. This misconception had given rise to certain decisions where it was held that a charge created by a decree was enforceable against a transferee for consideration without notice, because of the fact that a charge has been erroneously assumed to have created an interest in property reducing the full ownership to a limited ownership. The declaration that "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge" does not have the effect of changing the nature of a charge to one of interest in property.The reason for the above provision in Section 100 of the Act, read with Order 34, Rule 15, is merely to declare that the rights and liabilities of a charge-holder are to be that which a simple mortgagee has under the provisions of the Act in so far as they may be applicable. The words "So far as may be" indicate that provisions which apply to simple mortgage may not be applicable to the charge. It has been held that Section 56, 67(2), 68(3), 73(4), 83(5) and 92(6) are applicable to charges. On the other hand, Section 67A has been held to be applicable to charges created by act of parties and not to charges created by operation of law on the ground that the clause "in the absence of a contract to the contrary" occurring in that section is an essential part of it and cannot be given effect to in a statutory charge. If a charge carries with it a personal liability as in the case of a sellers charge for price not paid, the charge-holder is entitled under Order 34, Rule 6 of theCode of Civil Procedure to a personal decree.10. The Privy Council had observed that in a suit for enforcement of a charge under Section 100 of the Act read with Order 34, Rule 15Code of Civil Procedure, a decree for sale, as in a suit for a mortgage, should have been passed. See Ram Raghubir Singh Lal v. United Refineries ((1933) 60 IA 183) The several aspects of the application of the provisions of a simple mortgage have not been and need not be considered by us as they are not relevant for our purpose. Our object is merely to illustrate the reason for a reference in Section 100 to a simplemay be several views as to why this amendment was effected, but certainly one of them is to get over the effect of certain decisions of the courts which have held that a charge was valid as against a subsequent purchaser of property without notice on the assumption that a charge created an interest in property and since its effect is similar to a simple mortgage it being first in point of time has a priority over a subsequent sale to a purchaser of property who has taken it with consideration and without notice. It is contended that even after the Amendment of 1929 since no charge can be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge, the saving clause applies to a simple mortgage as well as to mortgages with possession inasmuch as in both cases property which could be transferred under Section 6 of the Act can be said to be transferred. In other words, the saving clause is not confined only to an out and out sale.In order to ascertain the true import of the terminology used in Section 100 of the Act, it is necessary to state clearly some of the basic concepts embodied in the Act which are beyond controversy. Section 5 defined "transfer of property" as meaning "an Act by which a living person conveys property, in present or in future to one or more other living persons, or to himself, or to himself and one or more other living persons", and "to transfer property" is to perform such act. Section 6 says that property of any kind may be transferred, except as otherwise provided by the Act or by any other law for the time being in force other than those mentioned specifically in clauses (a) to (i) which cannot be transferred. Section 8 deals with the operation of transfer and says that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. It then narrates all such incidents having regard to the land, debt, etc., etc. Chapter III of the Act deals specifically with sales of immoveable property, the sale in Section 54 being defined as transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Mortgages are dealt with in Chapter IV where mortgage is defined in Section 58(a) as the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. Different kinds of mortgages are also specified in that section of which clause (b) states what a simple mortgage is, namely,where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.In so far as competing mortgagees are concerned, Section 48 of the Act gives priority to the first in point of time in whose favour transfer of an interest in respect of the same immoveable property is created, if the interest which he has taken and the interest acquired sub-sequently by other persons cannot all exist or be exercised to their full extent together. This section speaks of a person who purports to create by transfer at different times rights in or over the same immoveable property, and since charge is not a transfer of an interest in or over the immoveable property he gets no security as against mortgagees of the same property unless he can show that the subsequent mortgagee or mortgagees had notice of the existence of his prior charge.The doctrine of notice, even apart from the statutory provisions, is firmly embedded in the jurisprudence of this country as part of the equitable principles which courts administer in conformity with the maxim "justice, equity and good conscience". On this approach the conclusion would be the same as if the proviso to Section 100 of the Act was applicable to mortgages also, but it is no answer to say that merely because the ultimate result is the same, we should read the language of Section 100 of the Act ignoring the purpose for which the amendment was made, or give it an interpretation which is totally at variance with the tenor of the entire Act in order that it may conform with the ultimate result, which in any case has been reached, even if it was by a different road.The result of a close examination of the several aspects of the question posed before us leads us to the conclusion that a subsequent mortgagee with notice of a prior charge takes the mortgage subject to the charge. But as in this case the finding is that the respondent did not have notice of the appellants charge, the appeals will have to be dismissed, and are accordingly, dismissed, but in the circumstances without costs.In several of the cases mentioned above the question arose whether the terms of the decree were sufficient to confer the rights upon the parties or their representatives in interest to execute the decree to satisfy the claim or a separate unit was needed. That question has not been raised before us. We are concerned here with a charge created by the terms of an agreement between the parties which was embodied in the compromise decree. This agreement satisfies the requirements of Section 100 of the Act inasmuch as it is a charge created by the Act of parties. It is immaterial that the charge was subsequently incorporated in a decree. We also find that no contention was advanced either in the trial Court or in the High Court, that a charge under the terms embodied in a compromise decree operates or binds outside the conditions laid down by Section 100 of the Act for enforcing charges in general. I am not impressed by the argument.41. I hold that a charge was created by the terms of the agreement embodied in the consent decree, which was actually registered even though, unfortunately for the charge-holders, the provisions of Section 51 of the Registration Act were not fully complied with in keeping a record of the charge. That charge against Budhwar Peth property would be enforceable if the plaintiff-respondent is not protected by the terms of the proviso after its amendment by the Transfer of Property (Amendment) Act XX of 1929. If the rights of a simple mortgagee, who is not in possession of the mortgaged property are not protected by the proviso at all, there is no doubt that the first part of Section 100 will confer uponOn the evidence on record, the trial Court came to the conclusionthat only the property at Shukrawar Peth, Poona city, was mentioned in the various official records maintained by the Sub-Registrar and City Survey Officer as affected by the charge, though property in Budhwar Peth, which was also included therein, was not at all referred to therein.The High Court affirmed this finding and held :that from inspection of the records it could not have been possible for any one to find out if the suit property was charged and the plaintiff, therefore, could not be fixed with notice, either actual or constructive, of the above decretal charge in favour of defendants Nos. 9 to 13.After having been taken through the evidence mentioned above, I see no reason to differ from the views taken by the trial Court and the High Court which preclude the existence of "gross negligence" on the part of the plaintiff who had made such attempts as could be expected of a reasonable and prudent individual to find out whether the property to be mortgaged was subject to a previous charge. The failure of the plaintiff to learn of the prior charge on the Budhwar Peth property could be ascribed to the negligence of the Sub-Registrar concerned for which the plaintiff Oswal could not be made to suffer.45. Coming back to the principal question indicated above, which was most strenuously argued on behalf of the appellants, relating to the interpretation of the proviso to Section 100 of the Act, I think that the correct meaning of this provision will emerge by determining what its object is by firstly, considering the language employed in the context of other sections of the Act defining the concepts involved; and, secondly, if there is any uncertainty left, by glancing at some legal history so as to appreciate what the provisions could be aimed at achieving.46. I have set out above the requirements of notice, both actual and constructive, found in Section 3 of the Act. So far as constructive notice is concerned, it is evident that the three explanations lay down what is deemed to be notice under each of the three sets of circumstances dealt with separately by each Explanation. There is a presumption against redundance or meaningless overlapping of statutory provisions. Explanation I, within which the case of the plaintiff Oswal was sought to be brought by Motes, deals with a very different set of circumstances, and, apparently, dispenses with circumstances bringing in Explanation II which makes it clear that a person acquiring any share or interest in immoveable property will be "deemed to have notice of the title, if any of any person who is in actual possession thereon". In other words, Explanation II constitutes an independent category of a deemed or constructive notice of entitlement of the person shown to be in possession. The significance of this provision is that it shows that, where actual possession was to constitute notice of entitlement, it is clearly and specifically dealt with in Section 3 of the Act. It indicates that reference to the factum of possession is made in the Act itself where this constitutes a part of a set of facts which has to be proved for establishing a right or liability.Thus, we see that to have possession of an object is only one of the several dictionary meanings but not the only meaning of the expression "in hand". Moreover, the concept of possession in legal terminology is so well known that, whenever it is intended to convey what is signifies, lawyers and draftsmen do not hesitate to use the word possession just as we find it used in Section 3, Explanation II, relating to deemed "notice". It seems that, in the proviso to Section 100 of the Act, the Legislature deliberately employed the concept of "property in hand", in contra-distinction with "property in the possession of" a transferee, so as to include cases where a person has a right, which is intangible property, vested in him.51. The right of a simple mortgagee may be capable of being spoken of as "possessed" by the mortgagee. But, since it is an intangible right, even the word possession, when used in conjunction with mortgagees rights, would not denote an actual physical handling of the right which is intangible. The right may be evidenced by a document kept in the vaults of a bank or in an almirah in a private home, but, the right itself is incorporeal. It is something distinct from the document which evidences it. It is incapable of being "handled" physically. The right could more appropriately be spoken of as either "vested in the transferee", or, as property "in the hands of the transferee". The object of employing this terminology in proviso to Section 100 of the Act seems to be to include such rights as those of a simple mortgagee. I, therefore, think that the Bombay High Court was correct in adopting the view that the plaintiff-respondent Oswal, as a simple mortgagee, was not outside the protection conferred by the proviso to Section 100 because he was both a bona fide transferee for consideration with simple mortgagee rights "in hand", as well as a person who had no notice, actual or constructive, of the prior charge of the Motes for reasons already mentioned above.It will be seen that in the passage set out above, the term "holder of the legal estate" is obviously used for one who holds the property "either as absolute owner or until his mortgage is discharged as the case may be". In other words, for applying the equitable principle explained there, a mortgagee is equated with the absolute owner under an outright sale of rights of ownership. A reference to Berwick & Co. v. Price (supra) also shows that the meaning of the term "purchaser for value" as including a mortgagee was so well settled in English law that it received statutory recognition in Section 2(viii) of the Conveyancing Act, 1882, there. Again Section 285(1)(xxi) of the Law of Property Act, 1925, in defining "purchaser", made it abundantly clear, that both an outright purchaser and a mortgagee could fall under the protective cover of the doctrine of a "bona fide purchaser for value". This only meant that English law too gave statutory form and expression to doctrines evolved by Courts of Equity. A bare perusal of passages in Pomeroys Equity Jurisprudence is enough to show that the concept of a "bona fide purchaser for value" includes the mortgagee and that a "legal mortgagee" has, for the purposes of applying the doctrine, a "legal estate". In a discussion of "what constitutes a bona fide purchase", the need to show a purchase of the whole interest which a transferor could pass finds no place (see Pomeroys Equity Jurisprudence, 5th Edn. Vol. 3, Para 745, pp. 19-20). A distinction is made between the claims of a "legal mortgagee", who is described as "holding of course, the legal estate", and those of a merely "equitableThe effect of provisions of our Act is that a legally valid charge, even though Sanction 100 makes it a legally enforcible claim, is not a transfer of property which, as Section 58 of the Act shows, a mortgage is. Nevertheless, a charge for purposes to enforceability would rank equally with a transfer of interest in property provided the transferee had notice of that charge within the meaning of "notice" as defined by Section 3 of the Act. If a simple mortgage amounts to a transfer of property for the purposes of Section 100, as it does, it is immaterial that a transfer of property implies a transfer of the whole bundle of rights in property which the transferor has for the purposes of situations dealt with by other Sections.A number of other provisions of the Act to which references have been made in the course of arguments do not, in my opinion, really help us in arriving at the correct meaning of the transfer of property contemplated by the proviso to Section 100 of the Act. It is enough, for the purposes of interpreting Section 100, to reach the conclusion, as I think we have to in view of other provisions of the Act, that the transfer may be of even an interest in property.59. I regret that I am unable to share the view that the Bombay High Court, in the judgment under appeal, stretched the meaning of the words "in the hands of" too far to read something into Section 100 of the Act which is not there. On the other hand, I think that we will have to add some words if we import a limitation, which is not there, into the words : "any property in the hands of a person to whom such property has been transferred for consideration". We will have to so read them as to confine the meaning to a transfer of "full rights of ownership in property". To do that, we will have to at least after the words "such property" into "rights of ownership in such property". The words "such property" do not, it seems to me, stand only for "full ownership of property". They obviously denote that property which has been transferred. If the transfer of an interest in property to a mortgagee, whether simple or usufructuary, is a transfer of property, "such property" could only mean, in the case of a mortgagee, the interest in property which has been transferred to the mortgagee because that is also "property". The words used could not, in the context, stand only for the whole bundle of rights which ownership of such property may be made up of. In any case, what the mortgagee has "in hand" is only an interest in property, so that this, and nothing more, is "property in the hands of" a mortgagee. When his case is under consideration that is all we are concerned with. We need indulge in no semantic refinements at all to reach this result which flows directly from the words used in the section. And, we need not unnecessarily cut down the apparent amplitude of their scope.60. If we can reach the same result on the question of priority of a simple mortgage as against a charge, of which the mortgagee has no notice, by resorting to the principles of "equity justice and good conscience", the question arises : why can we not read Section 100 of the Act itself as a direct statutory recognition of those very principles when this provision contains, comprehensively, as it appears to me to be meant to do, the requirements of equity, justice, and good conscience, on the question of priority between a charge-holder and other possible transferees including a simple mortgagee against whom the question of enforceability of a prior charge could arise ? To answer this question satisfactorily I think we are, necessity, driven to seek light from the principles developed by the Chancellors Court of Equity in England which a number of our statutory provisions are intended to incorporate into our statutory law just as a number of them have been embodied in English statutory law now. If the maxim of equity is that "equity follows the law", it is no less true that statutory law generally purports to follow the behests of equity, justice, and good conscience.61. A wide and liberal enough interpretation of the proviso to Section 100 of the Act to extend the benefit of it, as amended and clarified by Section 50 of the Transfer of Property (Amendment) Act XX of 1929, to mortgagees also as bona fide transferees for value (the word "purchaser" seems to have been deliberately eschewed), is supported by an examination of all such relevant cases decided by different High Court on the amended provision as have come to my notice, with the solitary exception of Arumilli Surayyas case (supra) of the Madras High Court containing an observation, quoted already, by Horwill, J. The amendment was apparently made to negative the view expressed in some cases that a charge could be enforced even against a bona fide purchaser for value without notice. The proviso should I think, be so interpreted as to amplify the remedy and to suppress the mischief aimed at by the amendment. I may mention some cases decided on the assumption that the mortgagees were also protected by the proviso.The contention was that, although a charge may not be described as "a transfer", yet, the result of Section 100 of the Act was to equate it with a simple mortgage which is a transfer because Section 100 says : "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge". I think that, apart from the qualifying words, "so far as may be", used by Section 100 of the Act, a condition essential to the applicability of Section 48 of the Act is that there must be an actual transfer of property. Further more, another condition for invoking Section 48 of the Act is that the previous and the subsequently created rights "cannot all exist or be exercised to their full extent together". In the case before us, this does not appear from facts found. In any case, the prior right of the charge-holders could only obtain priority provided other things are not unequal. This follows from words used indicating that each of the two or more transactions must at least be a "transfer". Furthermore, the conditions of priority as between the holder of a previous charge and a subsequent simple mortgage are completely covered by Section 100 of the Act. The principle underlying Section 48 is one expressed in the maxim of Equity : "Qui prior est tempore potior est jure" (first in time is stronger in right). This principle, applied to ranking between rival equitable claims, is applied by Section 48 to contending claims of otherwise equal legal validity. The effect of Section 100 is that wile a charge, which is not a "transfer" of property, gets recognition as a legally enforceable claim, that enforceability is subjected by the proviso to the requirements of a prior notice in order to give it precedence over a legally valid transfer of property. The rights of the appellants charge-holders could only be exercised, on facts found, subject to the priority obtained by the respondent mortgagees rights. This clear result of the law, as contained in Section 100 of the Act, cannot be defeated by invoking either the terms of or the principles underlying Section 48 of the Act read with the first part only of Section 100 of the Act. If the respondent simple mortgagee Oswal could not have claimed the benefit of the proviso to Section 100, the first part of Section 100, read with Section 48 of the Act, could have come to the aid of the appellants. But, on the view adopted by me, this line of reasoning does not help the unfortunate charge-holders at all.68. Lastly, learned Counsel for the appellants suggested that the mortgages made subsequent to the charge by a decree in favour of the Motes were struck by the doctrine of Lis Pendens. The Bombay High Court had repelled this contention on two grounds : firstly, the properties which were subsequently charged with the payment of the debts to the Motes were not the subject-matter of Suit No. 741 of 1938 : and, secondly, there was no Darkhast or execution application pending at the time when the simple mortgages in favour of the plaintiff-respondent Oswal were created in 1949. I agree with these reasons for holding that the doctrine of Lis Pendens has no application on the facts of the case before us. | 0 | 18,065 | 4,878 | ### Instruction:
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1944 Nag 1) the plea of a defendant charge-holder under a decree was repelled as against the plaintiff-respondent who had brought a suit to enforce a subsequent mortgage because the mortgagee had no notice of the charge. Grille, C.J. observed, with regard to the distinction between the unamended and amended sections (at page 5) :The main difference to be noticed in the two section is that the section as amended explicitly states that no charge would be enforced against a person taking the property for consideration and without notice of the charge. The amendment was made in order to set at rest the conflict of decisions that existed before. The view taken by the Judicial Commissioners Court, Nagpur, before the amendment was that no charge could be enforced against property in the hands of a person to whom such property had been transferred for consideration and without notice of the charge : 15 NLJ 141. This view was approved in 30 NLR 303, at p. 305. The view taken in several other cases was that inasmuch as there is no transfer of interest in property in a charge while there is such a transfer of interest in a mortgage a charge would be good against subsequent transferees such as mortgagees or purchasers only if the subsequent transferees had notice of the prior charge. (33 Cal 985, 993 : 38 All 254, 258 : 42 Cal 625) 65. Of course, the precise question raised before us was not actually raised in the cases mentioned above, and, therefore, it was not decided there. But, each of these decisions rests on the assumption that a simple mortgagee is also covered by the protection conferred by the amended proviso. If this has been the basis on which decisions have been given until now since the amendment of Section 100 by Act XX of 1929, we should, I think, be most reluctant to tread a new path on the meaning of such a statutory provision unless we could not avoid doing so because some clear misconception of the law is revealed.66. Another contention advanced on behalf of the appellant was that their prior rights would be protected by either the terms of or the principles underlying Section 48 of the Act which reads as follows :Section 48. Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.67. The contention was that, although a charge may not be described as "a transfer", yet, the result of Section 100 of the Act was to equate it with a simple mortgage which is a transfer because Section 100 says : "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge". I think that, apart from the qualifying words, "so far as may be", used by Section 100 of the Act, a condition essential to the applicability of Section 48 of the Act is that there must be an actual transfer of property. Further more, another condition for invoking Section 48 of the Act is that the previous and the subsequently created rights "cannot all exist or be exercised to their full extent together". In the case before us, this does not appear from facts found. In any case, the prior right of the charge-holders could only obtain priority provided other things are not unequal. This follows from words used indicating that each of the two or more transactions must at least be a "transfer". Furthermore, the conditions of priority as between the holder of a previous charge and a subsequent simple mortgage are completely covered by Section 100 of the Act. The principle underlying Section 48 is one expressed in the maxim of Equity : "Qui prior est tempore potior est jure" (first in time is stronger in right). This principle, applied to ranking between rival equitable claims, is applied by Section 48 to contending claims of otherwise equal legal validity. The effect of Section 100 is that wile a charge, which is not a "transfer" of property, gets recognition as a legally enforceable claim, that enforceability is subjected by the proviso to the requirements of a prior notice in order to give it precedence over a legally valid transfer of property. The rights of the appellants charge-holders could only be exercised, on facts found, subject to the priority obtained by the respondent mortgagees rights. This clear result of the law, as contained in Section 100 of the Act, cannot be defeated by invoking either the terms of or the principles underlying Section 48 of the Act read with the first part only of Section 100 of the Act. If the respondent simple mortgagee Oswal could not have claimed the benefit of the proviso to Section 100, the first part of Section 100, read with Section 48 of the Act, could have come to the aid of the appellants. But, on the view adopted by me, this line of reasoning does not help the unfortunate charge-holders at all.68. Lastly, learned Counsel for the appellants suggested that the mortgages made subsequent to the charge by a decree in favour of the Motes were struck by the doctrine of Lis Pendens. The Bombay High Court had repelled this contention on two grounds : firstly, the properties which were subsequently charged with the payment of the debts to the Motes were not the subject-matter of Suit No. 741 of 1938 : and, secondly, there was no Darkhast or execution application pending at the time when the simple mortgages in favour of the plaintiff-respondent Oswal were created in 1949. I agree with these reasons for holding that the doctrine of Lis Pendens has no application on the facts of the case before us.
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only an interest in property, so that this, and nothing more, is "property in the hands of" a mortgagee. When his case is under consideration that is all we are concerned with. We need indulge in no semantic refinements at all to reach this result which flows directly from the words used in the section. And, we need not unnecessarily cut down the apparent amplitude of their scope.60. If we can reach the same result on the question of priority of a simple mortgage as against a charge, of which the mortgagee has no notice, by resorting to the principles of "equity justice and good conscience", the question arises : why can we not read Section 100 of the Act itself as a direct statutory recognition of those very principles when this provision contains, comprehensively, as it appears to me to be meant to do, the requirements of equity, justice, and good conscience, on the question of priority between a charge-holder and other possible transferees including a simple mortgagee against whom the question of enforceability of a prior charge could arise ? To answer this question satisfactorily I think we are, necessity, driven to seek light from the principles developed by the Chancellors Court of Equity in England which a number of our statutory provisions are intended to incorporate into our statutory law just as a number of them have been embodied in English statutory law now. If the maxim of equity is that "equity follows the law", it is no less true that statutory law generally purports to follow the behests of equity, justice, and good conscience.61. A wide and liberal enough interpretation of the proviso to Section 100 of the Act to extend the benefit of it, as amended and clarified by Section 50 of the Transfer of Property (Amendment) Act XX of 1929, to mortgagees also as bona fide transferees for value (the word "purchaser" seems to have been deliberately eschewed), is supported by an examination of all such relevant cases decided by different High Court on the amended provision as have come to my notice, with the solitary exception of Arumilli Surayyas case (supra) of the Madras High Court containing an observation, quoted already, by Horwill, J. The amendment was apparently made to negative the view expressed in some cases that a charge could be enforced even against a bona fide purchaser for value without notice. The proviso should I think, be so interpreted as to amplify the remedy and to suppress the mischief aimed at by the amendment. I may mention some cases decided on the assumption that the mortgagees were also protected by the proviso.The contention was that, although a charge may not be described as "a transfer", yet, the result of Section 100 of the Act was to equate it with a simple mortgage which is a transfer because Section 100 says : "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge". I think that, apart from the qualifying words, "so far as may be", used by Section 100 of the Act, a condition essential to the applicability of Section 48 of the Act is that there must be an actual transfer of property. Further more, another condition for invoking Section 48 of the Act is that the previous and the subsequently created rights "cannot all exist or be exercised to their full extent together". In the case before us, this does not appear from facts found. In any case, the prior right of the charge-holders could only obtain priority provided other things are not unequal. This follows from words used indicating that each of the two or more transactions must at least be a "transfer". Furthermore, the conditions of priority as between the holder of a previous charge and a subsequent simple mortgage are completely covered by Section 100 of the Act. The principle underlying Section 48 is one expressed in the maxim of Equity : "Qui prior est tempore potior est jure" (first in time is stronger in right). This principle, applied to ranking between rival equitable claims, is applied by Section 48 to contending claims of otherwise equal legal validity. The effect of Section 100 is that wile a charge, which is not a "transfer" of property, gets recognition as a legally enforceable claim, that enforceability is subjected by the proviso to the requirements of a prior notice in order to give it precedence over a legally valid transfer of property. The rights of the appellants charge-holders could only be exercised, on facts found, subject to the priority obtained by the respondent mortgagees rights. This clear result of the law, as contained in Section 100 of the Act, cannot be defeated by invoking either the terms of or the principles underlying Section 48 of the Act read with the first part only of Section 100 of the Act. If the respondent simple mortgagee Oswal could not have claimed the benefit of the proviso to Section 100, the first part of Section 100, read with Section 48 of the Act, could have come to the aid of the appellants. But, on the view adopted by me, this line of reasoning does not help the unfortunate charge-holders at all.68. Lastly, learned Counsel for the appellants suggested that the mortgages made subsequent to the charge by a decree in favour of the Motes were struck by the doctrine of Lis Pendens. The Bombay High Court had repelled this contention on two grounds : firstly, the properties which were subsequently charged with the payment of the debts to the Motes were not the subject-matter of Suit No. 741 of 1938 : and, secondly, there was no Darkhast or execution application pending at the time when the simple mortgages in favour of the plaintiff-respondent Oswal were created in 1949. I agree with these reasons for holding that the doctrine of Lis Pendens has no application on the facts of the case before us.
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Global Energy Ltd. Vs. Central Electricity Regulatory Com | no further action had been taken. In the aforementioned fact situation, this Court while opining that applications for grant of mining lease should be dealt with within a reasonable time but on that account the applicant would not be clothed with a right for disposal thereof, stating: "...No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application." No exception thereto can be taken. Here, however, appellant was found eligible for grant of trading licence. He was found to be qualified. 38. Reliance has also been placed on S.B. International Limited & ors. vs. Assistant Director General of Foreign Trade & ors. [(1996) 2 SCC 439] , wherein in the scheme and context, it was held that no vested right accrued to the licensee for issuance of advance licence. LEGITIMATE EXPECTATION 39. Appellant applied for grant of licence. He was found to be qualified therefor having satisfied the statutory requirements. It was granted an interim licence. It has started trading in electricity. It, therefore, had a legitimate expectation that in considering the application for grant of licence, the same criteria as laid down in the statute shall be applied. In P.T.R. Exports (Madras) Private Limited & ors. vs. Union of India & ors. [(1996) 5 SCC 268] , whereupon reliance has been placed, this Court inter alia opined that in the matter of grant of licence the doctrine of legitimate expectation would have no role to play as it would depend upon the policy prevailing on the date of grant of licence. It was again a case where an Export and Import Policy to be notified by the Central Government under the Foreign Trade (Development and Regulation) Act, 1992 was involved. 40. Reliance has also been placed on M.P. Ram Mohan Raja vs. State of T.N. & ors. (supra). Therein also like Hind Stone (supra) there was no intimation from the State Government to the applicant that it was found qualified for grant of mining lease. 41. Reliance has also been placed by Mr. Tripathi on Commissioner of Municipal Corporation, Shimla vs. Prem Lata Sood & ors. [(2007) 11 SCC 40] . This Court therein was concerned with a planning and development statute framed under the Himachal Pradesh Town and Country Planning Act, 1977. In that case, this Court was considering the enforcement of right in several stages holding that the `conditions precedent laid down therein unless satisfied no right can be said to have vested in the person concerned. 42. The cases relied upon by Mr. Tripathi are distinguishable on fact. We accept the general principle that an applicant by filing a mere application cannot be said to have derived a vested right but we are of the opinion that he has a right to be considered. It will bear repetition to state that such consideration must be made not only on the basis of a valid statute but also rationale and objective criteria should be applied therefore. EPILOGUE 43. The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the government. If the statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from Due Process requirement under Article 21, Equal Protection clause embodied in Article 14 and Fundamental Freedoms clause ingrained under Article 19. A modern deliberative democracy can not function without these attributes. The constitutive understanding of aforementioned guarantees under the Fundamental Rights chapter in the Constitution does not give rise to a mere rhetoric and symbolic value inhered by the polity but has to be reflected in minute functioning of all the three wings of state - executive, legislature and judiciary. When we talk of state action, devil lies in the detail. The approach to writing of laws, rules, notifications etc. has to showcase these concerns. The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the context of rule making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of legislative acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters. A subjectively worded normative device also enables the agency to acquire rents. It determines the degree of accountability and responsiveness of officials and of political and judicial control of the bureaucracy. However, when the provision inherently perpetuates injustice in the award of licenses and brings uncertainty and arbitrariness it would be best to stop the government in the tracks. Since the vires of the regulation is under challenge, we took the opportunity to consider the propriety and constitutionality of generic decision-making process encapsulated under the impugned legislation. Amongst others, in this context, we strike down the impugned clause. | 1[ds]29. Our attention has been drawn to some other legislations wherein the concept of `fit and proper person had been applied, namely, Securities and Exchange Board of India (Criteria for Fit and Proper Person) Regulations, 2004.30. We have not been shown as to how the purpose and object of the said Regulations can be said to be in pari materia with the Regulations in question. It must also be borne in mind that an elaborate public hearing process is provided for grant of licence in terms of Section 15 of the Act. Such an independent inquiry cannot be carried out de hors the statute. But the Parliament thought it fit to confer a hearing as regards public objection only.Regulation 6A in effect confers powers/discretion on matters of licensing even in public hearing. Such relevant factors which provide for the criteria laid down in Regulation 6A could be brought on record. Section 15, however, empowers the Commission to specify the form and manner of the application and the fees that is required to be attached. The parliamentary object must be read in the context of the preamble.The reform legislation sought to bring in transparency in the work of the public sector. It postulates competition from the private sector. Only such a competition now would give rise to a development of a proper market in the long run. The power of the Regulatory Commission to impose qualification/restrictions should be read in line with the larger object of the Act. The Consumer tariff is to be laid down by the Commission. How licensees would operate their business to the extent permissible under law should be subject to Regulation, which ordinarily should not be resorted to discourage private participation in the power sector. A trader of electricity does not deal with consumers; he is merely an intermediary between a generating company and a distribution licensee. The tariff that a distribution licensee will charge from its consumers is regulated. Even the margin that a trader can make is regulated. It is, therefore, not correct to contend that Regulation 6A is in consumer interest as it has not been shown how it will protect the consumer interest.ULTRA VIRES ISSUE31. Section 52 of the Act is without prejudice to the provisions contained in(c) of Section 12. By reason of the said provision the appropriate Government is vested with the power to specify:(1) Technical requirement; (2) Capital adequacy requirement and; (3) Creditworthiness in relation to an electricity trader.Regulation 6 deals with capital adequacy requirement and creditworthiness. Regulation 6A (b), therefore, cannot have anything to do with capital adequacy requirement and creditworthiness. The finding of the High Court to that effect cannot be upheld as Regulation 6A is a stand alone provision providing for a set of disqualifications. Although by the said provisions, it cannot be said that the legislature has exhausted itself but the same should also be taken into consideration for the purpose of determining the effect of the Regulations. As Section 52 does not empower the Regulation making authority to provide for qualification or disqualification, the delegated legislation or a subordinate legislation as is well known must conform exactly to the power granted.We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Section 12 and 14 of the Act, the Regulation making power may also be available for the said purpose.33. We have noticed hereinbefore the effect of(1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation. | 1 | 8,144 | 716 | ### 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:
no further action had been taken. In the aforementioned fact situation, this Court while opining that applications for grant of mining lease should be dealt with within a reasonable time but on that account the applicant would not be clothed with a right for disposal thereof, stating: "...No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application." No exception thereto can be taken. Here, however, appellant was found eligible for grant of trading licence. He was found to be qualified. 38. Reliance has also been placed on S.B. International Limited & ors. vs. Assistant Director General of Foreign Trade & ors. [(1996) 2 SCC 439] , wherein in the scheme and context, it was held that no vested right accrued to the licensee for issuance of advance licence. LEGITIMATE EXPECTATION 39. Appellant applied for grant of licence. He was found to be qualified therefor having satisfied the statutory requirements. It was granted an interim licence. It has started trading in electricity. It, therefore, had a legitimate expectation that in considering the application for grant of licence, the same criteria as laid down in the statute shall be applied. In P.T.R. Exports (Madras) Private Limited & ors. vs. Union of India & ors. [(1996) 5 SCC 268] , whereupon reliance has been placed, this Court inter alia opined that in the matter of grant of licence the doctrine of legitimate expectation would have no role to play as it would depend upon the policy prevailing on the date of grant of licence. It was again a case where an Export and Import Policy to be notified by the Central Government under the Foreign Trade (Development and Regulation) Act, 1992 was involved. 40. Reliance has also been placed on M.P. Ram Mohan Raja vs. State of T.N. & ors. (supra). Therein also like Hind Stone (supra) there was no intimation from the State Government to the applicant that it was found qualified for grant of mining lease. 41. Reliance has also been placed by Mr. Tripathi on Commissioner of Municipal Corporation, Shimla vs. Prem Lata Sood & ors. [(2007) 11 SCC 40] . This Court therein was concerned with a planning and development statute framed under the Himachal Pradesh Town and Country Planning Act, 1977. In that case, this Court was considering the enforcement of right in several stages holding that the `conditions precedent laid down therein unless satisfied no right can be said to have vested in the person concerned. 42. The cases relied upon by Mr. Tripathi are distinguishable on fact. We accept the general principle that an applicant by filing a mere application cannot be said to have derived a vested right but we are of the opinion that he has a right to be considered. It will bear repetition to state that such consideration must be made not only on the basis of a valid statute but also rationale and objective criteria should be applied therefore. EPILOGUE 43. The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the government. If the statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from Due Process requirement under Article 21, Equal Protection clause embodied in Article 14 and Fundamental Freedoms clause ingrained under Article 19. A modern deliberative democracy can not function without these attributes. The constitutive understanding of aforementioned guarantees under the Fundamental Rights chapter in the Constitution does not give rise to a mere rhetoric and symbolic value inhered by the polity but has to be reflected in minute functioning of all the three wings of state - executive, legislature and judiciary. When we talk of state action, devil lies in the detail. The approach to writing of laws, rules, notifications etc. has to showcase these concerns. The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the context of rule making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of legislative acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters. A subjectively worded normative device also enables the agency to acquire rents. It determines the degree of accountability and responsiveness of officials and of political and judicial control of the bureaucracy. However, when the provision inherently perpetuates injustice in the award of licenses and brings uncertainty and arbitrariness it would be best to stop the government in the tracks. Since the vires of the regulation is under challenge, we took the opportunity to consider the propriety and constitutionality of generic decision-making process encapsulated under the impugned legislation. Amongst others, in this context, we strike down the impugned clause.
### Response:
1
### Explanation:
29. Our attention has been drawn to some other legislations wherein the concept of `fit and proper person had been applied, namely, Securities and Exchange Board of India (Criteria for Fit and Proper Person) Regulations, 2004.30. We have not been shown as to how the purpose and object of the said Regulations can be said to be in pari materia with the Regulations in question. It must also be borne in mind that an elaborate public hearing process is provided for grant of licence in terms of Section 15 of the Act. Such an independent inquiry cannot be carried out de hors the statute. But the Parliament thought it fit to confer a hearing as regards public objection only.Regulation 6A in effect confers powers/discretion on matters of licensing even in public hearing. Such relevant factors which provide for the criteria laid down in Regulation 6A could be brought on record. Section 15, however, empowers the Commission to specify the form and manner of the application and the fees that is required to be attached. The parliamentary object must be read in the context of the preamble.The reform legislation sought to bring in transparency in the work of the public sector. It postulates competition from the private sector. Only such a competition now would give rise to a development of a proper market in the long run. The power of the Regulatory Commission to impose qualification/restrictions should be read in line with the larger object of the Act. The Consumer tariff is to be laid down by the Commission. How licensees would operate their business to the extent permissible under law should be subject to Regulation, which ordinarily should not be resorted to discourage private participation in the power sector. A trader of electricity does not deal with consumers; he is merely an intermediary between a generating company and a distribution licensee. The tariff that a distribution licensee will charge from its consumers is regulated. Even the margin that a trader can make is regulated. It is, therefore, not correct to contend that Regulation 6A is in consumer interest as it has not been shown how it will protect the consumer interest.ULTRA VIRES ISSUE31. Section 52 of the Act is without prejudice to the provisions contained in(c) of Section 12. By reason of the said provision the appropriate Government is vested with the power to specify:(1) Technical requirement; (2) Capital adequacy requirement and; (3) Creditworthiness in relation to an electricity trader.Regulation 6 deals with capital adequacy requirement and creditworthiness. Regulation 6A (b), therefore, cannot have anything to do with capital adequacy requirement and creditworthiness. The finding of the High Court to that effect cannot be upheld as Regulation 6A is a stand alone provision providing for a set of disqualifications. Although by the said provisions, it cannot be said that the legislature has exhausted itself but the same should also be taken into consideration for the purpose of determining the effect of the Regulations. As Section 52 does not empower the Regulation making authority to provide for qualification or disqualification, the delegated legislation or a subordinate legislation as is well known must conform exactly to the power granted.We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Section 12 and 14 of the Act, the Regulation making power may also be available for the said purpose.33. We have noticed hereinbefore the effect of(1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation.
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CHIEF GENERAL MANAGER GUJARAT TELECOM CIRCLE, BHARAT SANCHAR NIGAM LTD Vs. MANILAL AMBALAL PATEL | under Rule 13(3) and also keeping in mind that the applicant did not take steps to challenge the order dated 04.08.2008, we would think that much may not turn on our even accepting the view of the High Court, that there was no criminal proceeding as on the date of the retirement. It also must be noted that the present is not a case where the authorities acted without any material at all even. We proceed on the basis that the criminal revision petition is not criminal proceeding under Rule (9) of the Pension Rules. A view was taken by the authorities regarding the same at the point of time which could not be said to have been taken without any basis at all. This, we say as the basis for interest on CVP can only be state action which is arbitrary. It is relevant to note that both sides proceeded on the basis that there was a proceeding within the meaning of Rule 9 and 69 of the Pension Rules. Further, even at the time when the order dated 04.08.2008 was passed it was open to the applicant to complain that there was no judicial proceeding, having regard to the nature of the proceeding pending in the High Court. The applicant instead chose not to question the sanctioning of provisional pension under Rule 69 and continued to receive the provisional pension. We will notice the consequences of the said order on his right to apply under Rule 13(1). 45. We have noticed that a claim for interest in regard to CVP may lie when an application has been made in time under rule 13(3) and the payment is delayed. But in a case where application is made under Rule 13(1) which can be made within a period of one year from the date of retirement, the same would have to be processed and undoubtedly at the earliest it must be brought to its logical culmination as per the rules. But certainly, in a case falling under Rule 13(1) there can be no question of paying interest from the date of retirement as the application itself is predicated after the date of retirement. No doubt the question as to payment of interest even in such cases would arise based on the date of application and the reasonableness of the time taken in processing it and the arbitrariness in a particular case in delaying the matter. This we say for the reason that as held in by this Court in S.K. Dua (supra) the premise on which interest can be granted in the case of CVP also is the breach of Articles 14 and 21 and it is a matter to be decided on the facts of each case. 46. It is significant to note that in this case the applicant has no case even that he made an application within the meaning of Rule 13(3) of the Commutation Rules as contemplated before three months of his retirement. Nothing stood in the way of the applicant applying under Rule 13(3) apparently. If on the other hand, there was any legal impediment which stood in the way, then also he cannot claim the CVP on retirement. Without having made such an application under the Commutation Rules, it is clear that there can be no question of even becoming entitled to commute pension w.e.f. first day following his retirement. The Tribunal and the High Court have completely overlooked the conspectus of the Rules. The Tribunal, in fact, has proceeded to consider the matter from the standpoint of interest payable on gratuity which also was claimed by the applicant and has not focused on the question relating to the point of time when CVP becomes payable, and that the nature of CVP being one dependent entirely on an application from the Government servant and therefore we have no hesitation in coming to the conclusion that the direction to pay interest on the CVP, as ordered by the Tribunal, from the date of retirement from 01.08.2008 is clearly erroneous. Now, as far as Rule 13(1) is concerned, it enables a person who is in receipt of a pension under Rule 12, to apply after retirement but within one year thereof for CVP. It is true that the applicant was not in receipt of any pension under Rule 12 and therefore, he could not have applied under Rule 13(1). This is for the reason that as per order dated 04.08.2008, he was to be given provisional pension which as we have noted was under Rule 69 of the Pension Rules. The applicant, however, proceeded to accept the provisional pension. It is true that the effect of the order dated 04.08.2008 of the sanctioning of the provisional pension under Rule 69, was that he was precluded from applying for commuting the provisional pension, in view of Rule 4 and on the other hand, as he was not in receipt of superannuation pension, he could not have filed an application under Rule 13(1). Thus, a question may arise. Having issued order dated 04.08.2008, the effect of which we have clarified, should interest be ordered on the basis that the applicant was prevented from applying for CVP under Rule 13(1). We have already found that the applicant was not precluded from making any application under Rule 13(3). Had he done so, his claim for interest from the date of retirement could have been considered under Articles 14 and 21. We also take note of the fact that the applicant did not challenge the order dated 04.08.2008 and he continued to accept the provisional pension sanctioned thereunder. There could be no question of granting interest from the date of retirement in view of the absence of any application under Rule 13(3). We make it clear that we are not pronouncing about the liability to interest on DCRG amount which is not subject matter of controversy before us and the direction to pay interest on gratuity is not being interfered with. | 1[ds]10. There is no dispute that CVP has been paid to the applicant after the conclusion of the vigilance proceedings, clearing the applicant, but the question to be considered by us as to whether the applicant was entitled to be paid interest for the period immediately after retirement till the date on which the CVP was actually paid to him. The scheme of the Pension Rules, inter alia, indicate that under Rule 59, the authorities are duty bound to set in motion, the proceedings for calculating and paying the pension by the due date. Rule 59 would indicate that the said procedure is divided into three stages; first stage - verification of service; second stage – making good omission in the service book; third stage - as soon as the second stage is completed, but not later than eight months prior to the date of retirement of the Government servant various steps are to be undertaken. Rule 61 contemplates that after complying with the requirement of Rules 59 and 60, pension papers are to be forwarded to the accounts officer. Rule 64 contemplates provisional pension being paid for reasons other than departmental or judicial proceedings15. The above discussion relate to the persons who are eligible to commute and the pension which qualify. As we have noted ordinarily by the time the person is to retire, papers are to be got ready so that he becomes entitled to the CVP. Thus, if application is made and if all goes well, a person eligible, on his applying, as provided in the Rules, would become entitled to the pension without delay after the retirement19. In this case, admittedly the applicant was sanctioned a provisional pension under Rule 69 on the basis that there was a judicial proceeding pending. We have set out the broad scheme of the Commutation Rules.20. A scanning of the Commutation Rules reveals that there is no provision which contemplates payment of interest. In fact, the appellants have produced Office Memorandum dated 05.10.1999 and the contention appears to be raised that it does not contemplate the grant of interest. We have gone through the said Office Memorandum. On the one hand the Office Memorandum does not contemplate grant of interest when CVP is paid belatedly. But on the other hand, we notice that the order does not declare that no interest shall be payable when CVP is paid belatedly21. The next exercise is to ascertain the true nature of CVP. As we have noticed from the Commutation Rules that CVP is inter-linked with pension. Pension is not a bounty. It is a legal as well as a fundamental right of a Government servant to receive his pension. It is not an act of grace by the employer but it is the right of the Government servant who has put in the required number of years of service. This is subject no doubt to Rule 9 of the Pension rules under which there is power to withhold and recover part or whole of the pension. In regard to pension, it is beyond dispute that for belated payment of pension, interest can be ordered to be paid.22. Commutation of pension is nothing but payment of a portion of the pension calculated on a formula provided in the Rules, the result of which is that the employer will be absolved from payment of the pension to the extent it is commuted and the employee will receive the value of commuted pension in a lump sum at one go. No doubt after a certain number of years (15 years) the full pension gets restored. Therefore, CVP flows out of his right to receive pension. In fact, it is a part of his pension which is paid in lump sum to the employee.23. It is undoubtedly true that it is entirely optional for the officer to commute a part of his pension. In that sense it can be said that without an application, he has no right to get commuted value.28. Rule 6 declares that the commutation in regard to a person covered by Rule 13(1) is to become absolute when Form 1 is received by the Head of Office. In the case of application under sub-rule (3) of Rule (13), it becomes absolute on the date following the date of his retirement. We are not to be detained by Chapter 4 which deals with cases where medical examination is necessary. It is important to notice Clause (c) to the proviso to Rule 6. It clearly contemplates that in the case of person who applied under Rule 13(3), the CVP becomes payable on the date following the date of his retirement. This interpretation is inevitable having regard to the express language of the said Rule. In fact, it contemplates that the reduction in the amount of pension on account of commutation shall be operative from its inception. This means that consequent upon commutation, the full pension which he would otherwise receive would suffer a diminution and it is to take effect from the very first day following his retirement. In fact, Clause (c) proviso to Rule 6 does contemplate a situation where the CVP is not made within the first month from the date of retirement as it provides that the difference of monthly pension for the period between the day following the date of retirement and the date preceding the date on which the CVP is deemed to have been paid in terms of the Central Government Account (Receipts and Payments) Rules, 198329. We have noticed the Rules. We have found out that the Rules declare the categories of pension which would qualify for commutation. In other words, those persons who fall in Rule 12 of the Commutation Rules, without undergoing any medical examination can apply for commutation, as provided in Rule 13, which includes a person who receives superannuation pension. If such a person applies under Rule 13, well within the time, he is indeed conferred a legal right under the Statutory Rules to receive commutated pension. It does not lie in the mouth of Government which is excepted to act as a model employer to sit over the papers and delay the sanctioning or the payment of the CVP30. Therefore in a case where Rule 13(3) applies and the Government servant who is due to retire on superannuation applies for getting CVP along with pension papers, prior to the date of his retirement as provided and he actually retires on superannuation and his application is within time, the CVP must be paid immediately after the retirement. It may be true that in the case of a person covered by Rule 18 which deals with the cases, which we have mentioned, like invalid pension, pension under Rule 40 of the Pension Rules on being compulsorily retired by way of penalty or compassionate allowance on being dismissed or removed he must undergo a medical examination. Therefore, applications by a person covered under Rules 12 and 18 stand on a different footing. As far as application by a person governed by Rule 12, provided he makes an application as contemplated under Rule and the application gives details of the amount of percentage of commutation which he requires subject to the maximum of forty percent, he is entitled to demand the payment of CVP. We have already noticed that the Rule does not provide the payment of interest. The Office Memorandum dated 05.10.1999 does not prohibit payment of interest.32. Coming to the facts of this case, we notice that the applicant was given provisional pension under Rule 69 of the Pension Rules. This immediately attracts Rule 4 of the Commutation Rules prohibiting commutation of the provisional pension. In fact, Rule 69 of the Pension Rules contemplates sanctioning of provisional pension which is to be equal to the maximum pension which would have been admissible on the basis of the qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately before being placed under suspension.34. The learned counsel for the appellants and the learned ASG are no doubt correct in contending that there is prohibition against commuting of pension but we must notice one aspect. What Rule 4 taboos is commutation of provisional pension which is granted under Rule 69 during the pendency of the proceedings35. As we have noticed, there are three situations. The first category is where the pension is finalized immediately upon retirement and on the basis of the application, the commutation as permissible subject to the limit of forty percent, is ordered. The second category is where there is provisional pension granted under Rule 64. In such a case also commutation is permissible but of the provisional pension again subject to the limit under Rule 5. In the third category where provisional pension is sanctioned on account of pendency of judicial or departmental proceeding Rule 4 applies and it forbids the commutation of the provisional pension granted under Rule 69. Since, in this case the applicant was admittedly sanctioned provisional pension, while the provisional pension was in place, the applicant could not have sought commutation of the provisional pension granted under Rule 69 in view of the embargo against such commutation contained in Rule 439. As far as the argument of the learned ASG that there was a departmental proceeding pending by virtue of the fact that an order of suspension was passed within the meaning of Rule 9(6), which we have already referred to, we are of the view that there is no merit in the said contention. While the applicant was placed under suspension, in the year 1997, it is equally indisputable that the said suspension was revoked in the year 1999 well before the date of superannuation of the applicant. It is not the law that to constitute a departmental proceeding that a Government servant has been placed under suspension at some point of time of his career. What is contemplated is that there must be a suspension when the applicant would have otherwise retired on superannuation. In this case the suspension stood revoked several years prior to his date of superannuation. Therefore, the suspension which was subsequently revoked cannot constitute suspension within the meaning of Rule 9(6)(b) of the Pension Rules and we have no hesitation in repelling the argument of learned ASG41. This order was passed prior to the date of superannuation of the applicant. It is, therefore, that Criminal Revision Application No.52 of 2007 came to be filed before the High Court of Gujarat. By order dated 30.03.2012, the revision came to be allowed. It is noticed that the applicant opposed the revision. The A-summary was to be given in a case where the case is found to be true but the accused is absconding. Further, if the evidence against the accused is not sufficient to prosecute the accused, also A-summary could be given.42. It is true that well before his retirement the agency which had no doubt conducted a trap against the applicant, had itself found that there was no material in view of subsequent developments. It could be said that this is a case where the applicant was exonerated by the agency well before the date of his retirement. No doubt this is not a case where the applicant has been acquitted honourably after trial. In fact, there was never a trial and the case was not sent up for trial in view of the submission of A-summary43. The other question also must be considered and that question is whether there was a judicial proceeding pending at the time of the retirement. A perusal of Rule 9 of the Pension Rules would show that Government had a right to withhold the pension or gratuity or both either in full or in part or withdraw a pension in full or in part either permanently or for the specified period. Government is also authorized to order recovery from pension or gratuity of the whole or in part of any pecuniary loss caused, if in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service which includes service after reemployment. Thereafter, sub-rule 9(6) deals with what constitutes when a departmental or a judicial proceeding will be deemed to commence. Judicial proceedings are divided into two categories. First category is a criminal proceeding. Second category is civil proceeding. As far as civil proceeding is concerned, it is deemed to be instituted when a plaint is presented. In other words, upon presentation of a plaint in a civil case judicial proceeding commences. In the case of a criminal proceeding by the deeming provision, it is deemed to have been instituted for the purpose of Rule 9 when the complaint or report of a police officer is made, but that is not sufficient. In a case where a complaint or a report of a police officer is made to a Court, it should culminate in cognizance being taken by the Magistrate, for the department to contend that the date of the complaint or report is to be the date of institution of the proceedings44. From the order of the Sessions Judge which alone is produced, it is not clear that cognizance was taken. The criminal revision is a criminal proceeding. But the case was about the A diary not being accepted. If the criminal revision was dismissed then the matter would have been proceeded with by the Sessions Judge. It is in the region of conjecture as to what would have followed suit. At the time of the retirement, the authorities could not have divined what would happen in the revision. No doubt, the purport of the revision petition was that the State wanted the A Summary to be accepted. The acceptance of A Summary which, in fact, was ordered by the High Court would have brought the litigation as against the applicant to an end. In so far as, we later propose to render our finding on the effect of no application being filed under Rule 13(3) and also keeping in mind that the applicant did not take steps to challenge the order dated 04.08.2008, we would think that much may not turn on our even accepting the view of the High Court, that there was no criminal proceeding as on the date of the retirement. It also must be noted that the present is not a case where the authorities acted without any material at all even. We proceed on the basis that the criminal revision petition is not criminal proceeding under Rule (9) of the Pension Rules. A view was taken by the authorities regarding the same at the point of time which could not be said to have been taken without any basis at all. This, we say as the basis for interest on CVP can only be state action which is arbitrary. It is relevant to note that both sides proceeded on the basis that there was a proceeding within the meaning of Rule 9 and 69 of the Pension Rules. Further, even at the time when the order dated 04.08.2008 was passed it was open to the applicant to complain that there was no judicial proceeding, having regard to the nature of the proceeding pending in the High Court. The applicant instead chose not to question the sanctioning of provisional pension under Rule 69 and continued to receive the provisional pension. We will notice the consequences of the said order on his right to apply under Rule 13(1)45. We have noticed that a claim for interest in regard to CVP may lie when an application has been made in time under rule 13(3) and the payment is delayed. But in a case where application is made under Rule 13(1) which can be made within a period of one year from the date of retirement, the same would have to be processed and undoubtedly at the earliest it must be brought to its logical culmination as per the rules. But certainly, in a case falling under Rule 13(1) there can be no question of paying interest from the date of retirement as the application itself is predicated after the date of retirement. No doubt the question as to payment of interest even in such cases would arise based on the date of application and the reasonableness of the time taken in processing it and the arbitrariness in a particular case in delaying the matter. This we say for the reason that as held in by this Court in S.K. Dua (supra) the premise on which interest can be granted in the case of CVP also is the breach of Articles 14 and 21 and it is a matter to be decided on the facts of each case46. It is significant to note that in this case the applicant has no case even that he made an application within the meaning of Rule 13(3) of the Commutation Rules as contemplated before three months of his retirement. Nothing stood in the way of the applicant applying under Rule 13(3) apparently. If on the other hand, there was any legal impediment which stood in the way, then also he cannot claim the CVP on retirement. Without having made such an application under the Commutation Rules, it is clear that there can be no question of even becoming entitled to commute pension w.e.f. first day following his retirement. The Tribunal and the High Court have completely overlooked the conspectus of the Rules. The Tribunal, in fact, has proceeded to consider the matter from the standpoint of interest payable on gratuity which also was claimed by the applicant and has not focused on the question relating to the point of time when CVP becomes payable, and that the nature of CVP being one dependent entirely on an application from the Government servant and therefore we have no hesitation in coming to the conclusion that the direction to pay interest on the CVP, as ordered by the Tribunal, from the date of retirement from 01.08.2008 is clearly erroneous. Now, as far as Rule 13(1) is concerned, it enables a person who is in receipt of a pension under Rule 12, to apply after retirement but within one year thereof for CVP. It is true that the applicant was not in receipt of any pension under Rule 12 and therefore, he could not have applied under Rule 13(1). This is for the reason that as per order dated 04.08.2008, he was to be given provisional pension which as we have noted was under Rule 69 of the Pension Rules. The applicant, however, proceeded to accept the provisional pension. It is true that the effect of the order dated 04.08.2008 of the sanctioning of the provisional pension under Rule 69, was that he was precluded from applying for commuting the provisional pension, in view of Rule 4 and on the other hand, as he was not in receipt of superannuation pension, he could not have filed an application under Rule 13(1). Thus, a question may arise. Having issued order dated 04.08.2008, the effect of which we have clarified, should interest be ordered on the basis that the applicant was prevented from applying for CVP under Rule 13(1). We have already found that the applicant was not precluded from making any application under Rule 13(3). Had he done so, his claim for interest from the date of retirement could have been considered under Articles 14 and 21. We also take note of the fact that the applicant did not challenge the order dated 04.08.2008 and he continued to accept the provisional pension sanctioned thereunder. There could be no question of granting interest from the date of retirement in view of the absence of any application under Rule 13(3). We make it clear that we are not pronouncing about the liability to interest on DCRG amount which is not subject matter of controversy before us and the direction to pay interest on gratuity is not being interfered with. | 1 | 9,620 | 3,672 | ### 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:
under Rule 13(3) and also keeping in mind that the applicant did not take steps to challenge the order dated 04.08.2008, we would think that much may not turn on our even accepting the view of the High Court, that there was no criminal proceeding as on the date of the retirement. It also must be noted that the present is not a case where the authorities acted without any material at all even. We proceed on the basis that the criminal revision petition is not criminal proceeding under Rule (9) of the Pension Rules. A view was taken by the authorities regarding the same at the point of time which could not be said to have been taken without any basis at all. This, we say as the basis for interest on CVP can only be state action which is arbitrary. It is relevant to note that both sides proceeded on the basis that there was a proceeding within the meaning of Rule 9 and 69 of the Pension Rules. Further, even at the time when the order dated 04.08.2008 was passed it was open to the applicant to complain that there was no judicial proceeding, having regard to the nature of the proceeding pending in the High Court. The applicant instead chose not to question the sanctioning of provisional pension under Rule 69 and continued to receive the provisional pension. We will notice the consequences of the said order on his right to apply under Rule 13(1). 45. We have noticed that a claim for interest in regard to CVP may lie when an application has been made in time under rule 13(3) and the payment is delayed. But in a case where application is made under Rule 13(1) which can be made within a period of one year from the date of retirement, the same would have to be processed and undoubtedly at the earliest it must be brought to its logical culmination as per the rules. But certainly, in a case falling under Rule 13(1) there can be no question of paying interest from the date of retirement as the application itself is predicated after the date of retirement. No doubt the question as to payment of interest even in such cases would arise based on the date of application and the reasonableness of the time taken in processing it and the arbitrariness in a particular case in delaying the matter. This we say for the reason that as held in by this Court in S.K. Dua (supra) the premise on which interest can be granted in the case of CVP also is the breach of Articles 14 and 21 and it is a matter to be decided on the facts of each case. 46. It is significant to note that in this case the applicant has no case even that he made an application within the meaning of Rule 13(3) of the Commutation Rules as contemplated before three months of his retirement. Nothing stood in the way of the applicant applying under Rule 13(3) apparently. If on the other hand, there was any legal impediment which stood in the way, then also he cannot claim the CVP on retirement. Without having made such an application under the Commutation Rules, it is clear that there can be no question of even becoming entitled to commute pension w.e.f. first day following his retirement. The Tribunal and the High Court have completely overlooked the conspectus of the Rules. The Tribunal, in fact, has proceeded to consider the matter from the standpoint of interest payable on gratuity which also was claimed by the applicant and has not focused on the question relating to the point of time when CVP becomes payable, and that the nature of CVP being one dependent entirely on an application from the Government servant and therefore we have no hesitation in coming to the conclusion that the direction to pay interest on the CVP, as ordered by the Tribunal, from the date of retirement from 01.08.2008 is clearly erroneous. Now, as far as Rule 13(1) is concerned, it enables a person who is in receipt of a pension under Rule 12, to apply after retirement but within one year thereof for CVP. It is true that the applicant was not in receipt of any pension under Rule 12 and therefore, he could not have applied under Rule 13(1). This is for the reason that as per order dated 04.08.2008, he was to be given provisional pension which as we have noted was under Rule 69 of the Pension Rules. The applicant, however, proceeded to accept the provisional pension. It is true that the effect of the order dated 04.08.2008 of the sanctioning of the provisional pension under Rule 69, was that he was precluded from applying for commuting the provisional pension, in view of Rule 4 and on the other hand, as he was not in receipt of superannuation pension, he could not have filed an application under Rule 13(1). Thus, a question may arise. Having issued order dated 04.08.2008, the effect of which we have clarified, should interest be ordered on the basis that the applicant was prevented from applying for CVP under Rule 13(1). We have already found that the applicant was not precluded from making any application under Rule 13(3). Had he done so, his claim for interest from the date of retirement could have been considered under Articles 14 and 21. We also take note of the fact that the applicant did not challenge the order dated 04.08.2008 and he continued to accept the provisional pension sanctioned thereunder. There could be no question of granting interest from the date of retirement in view of the absence of any application under Rule 13(3). We make it clear that we are not pronouncing about the liability to interest on DCRG amount which is not subject matter of controversy before us and the direction to pay interest on gratuity is not being interfered with.
### Response:
1
### Explanation:
being filed under Rule 13(3) and also keeping in mind that the applicant did not take steps to challenge the order dated 04.08.2008, we would think that much may not turn on our even accepting the view of the High Court, that there was no criminal proceeding as on the date of the retirement. It also must be noted that the present is not a case where the authorities acted without any material at all even. We proceed on the basis that the criminal revision petition is not criminal proceeding under Rule (9) of the Pension Rules. A view was taken by the authorities regarding the same at the point of time which could not be said to have been taken without any basis at all. This, we say as the basis for interest on CVP can only be state action which is arbitrary. It is relevant to note that both sides proceeded on the basis that there was a proceeding within the meaning of Rule 9 and 69 of the Pension Rules. Further, even at the time when the order dated 04.08.2008 was passed it was open to the applicant to complain that there was no judicial proceeding, having regard to the nature of the proceeding pending in the High Court. The applicant instead chose not to question the sanctioning of provisional pension under Rule 69 and continued to receive the provisional pension. We will notice the consequences of the said order on his right to apply under Rule 13(1)45. We have noticed that a claim for interest in regard to CVP may lie when an application has been made in time under rule 13(3) and the payment is delayed. But in a case where application is made under Rule 13(1) which can be made within a period of one year from the date of retirement, the same would have to be processed and undoubtedly at the earliest it must be brought to its logical culmination as per the rules. But certainly, in a case falling under Rule 13(1) there can be no question of paying interest from the date of retirement as the application itself is predicated after the date of retirement. No doubt the question as to payment of interest even in such cases would arise based on the date of application and the reasonableness of the time taken in processing it and the arbitrariness in a particular case in delaying the matter. This we say for the reason that as held in by this Court in S.K. Dua (supra) the premise on which interest can be granted in the case of CVP also is the breach of Articles 14 and 21 and it is a matter to be decided on the facts of each case46. It is significant to note that in this case the applicant has no case even that he made an application within the meaning of Rule 13(3) of the Commutation Rules as contemplated before three months of his retirement. Nothing stood in the way of the applicant applying under Rule 13(3) apparently. If on the other hand, there was any legal impediment which stood in the way, then also he cannot claim the CVP on retirement. Without having made such an application under the Commutation Rules, it is clear that there can be no question of even becoming entitled to commute pension w.e.f. first day following his retirement. The Tribunal and the High Court have completely overlooked the conspectus of the Rules. The Tribunal, in fact, has proceeded to consider the matter from the standpoint of interest payable on gratuity which also was claimed by the applicant and has not focused on the question relating to the point of time when CVP becomes payable, and that the nature of CVP being one dependent entirely on an application from the Government servant and therefore we have no hesitation in coming to the conclusion that the direction to pay interest on the CVP, as ordered by the Tribunal, from the date of retirement from 01.08.2008 is clearly erroneous. Now, as far as Rule 13(1) is concerned, it enables a person who is in receipt of a pension under Rule 12, to apply after retirement but within one year thereof for CVP. It is true that the applicant was not in receipt of any pension under Rule 12 and therefore, he could not have applied under Rule 13(1). This is for the reason that as per order dated 04.08.2008, he was to be given provisional pension which as we have noted was under Rule 69 of the Pension Rules. The applicant, however, proceeded to accept the provisional pension. It is true that the effect of the order dated 04.08.2008 of the sanctioning of the provisional pension under Rule 69, was that he was precluded from applying for commuting the provisional pension, in view of Rule 4 and on the other hand, as he was not in receipt of superannuation pension, he could not have filed an application under Rule 13(1). Thus, a question may arise. Having issued order dated 04.08.2008, the effect of which we have clarified, should interest be ordered on the basis that the applicant was prevented from applying for CVP under Rule 13(1). We have already found that the applicant was not precluded from making any application under Rule 13(3). Had he done so, his claim for interest from the date of retirement could have been considered under Articles 14 and 21. We also take note of the fact that the applicant did not challenge the order dated 04.08.2008 and he continued to accept the provisional pension sanctioned thereunder. There could be no question of granting interest from the date of retirement in view of the absence of any application under Rule 13(3). We make it clear that we are not pronouncing about the liability to interest on DCRG amount which is not subject matter of controversy before us and the direction to pay interest on gratuity is not being interfered with.
|
State Of Punjab Vs. V.K. Khanna | Scale Industries and Export Corporation) reported in writing that they paid Rs. 2 lacs for laying the Cricket Pitch at Mohali.(iv) The note dated 21.1.1997 of Chief Administrator PUDA brought out may serious irregularities in regard to grant of funds for the Cricket Stadium and the `PCA Club.(v) It had also come to the Petitioners notice that Sh. Bindra directed other companies like Punjab Tractors Ltd., Punwire, PACL etc. not to furnish any information to the Chief Secretary about payments made by them to the Punjab Cricket Association.(vi) The glaring fact that Sh. Bindra had transferred the land to the Punjab Cricket Association at his own level, without the approval of the Finance Department or any higher authority like Minister or Chief Minister, even though the approval of Council of Ministers was mandatory under the rules. The Sports Department itself did not have any title to the property. It still does not have it.(vii) The land use was changed by the Housing Development Board from Sports Complex/Cycle Velodrome to Cricket Stadium at Sh. Bindras behest, following collusive and malafide "interdepartmental meetings" with Sh. Mann.(viii) Housing Board connived at serious encroachments made by the PCA which is actually in occupation of about 20 acres, as against 105. acres, as against 10.5 acres mentioned in the decision of the Governor-in-Council (order dated 29.4.91) which in any case was not for a Cricket Stadium, but for a Sports Complex/Velodrome." It is on this score Mr. Subramaniam for respondent No. 1 contended that the factual context as noted hereinbefore prompted the Chief Secretary to submit the note to the Chief Minister and the allegation of not assessing the factual situation in its entirety cannot be said to be correct. 36. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malce or malafide, motive involved in the mater of issue of a charge-sheet or the concerned authority is so based that the inquiry would be a mere farcical show and the conclusion are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. 37. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, a such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mind set viz. : the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. it is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt to the charge-sheet or show-cause as th case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows by not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. 38. Admittedly, two enquiries were floated through CBI but purity and probity being the key words in public service and in the event a civil servant is alleged to have assets dis-proportionate to his income or in the event, there was parting of a huge property in support of which adequate data was not available - can the action be said to be the resultant effect of the personal vendetta or can any chargesheet be issued on the basis thereof, the answer cannot possibly be but in the negative. 39. The contextual facts depict that there is a noting by an official in the administration that certain vigilance matters are pending as against open of Secretaries but that stands ignored. We have dealt with this aspect of the matter in detail therein before in this judgment thus suffice it to note that further effort on the part of Shri Khanna in bringing to notice to the Chief Minister would not have resulted any further development and in that perspective that conduct of Shri Khanna cannot be faulted in any way. These are the instances which the High Court ascribed to be not in accordance with the known principles of law and attributed motive as regards initiation of the chargesheet. Opinion of the Court40. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decision cited from the Bar since facts are otherwise different in each of the decisions. | 0[ds]40. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decision cited from the Bar since facts are otherwise different in each of the decisions. | 0 | 11,195 | 70 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
Scale Industries and Export Corporation) reported in writing that they paid Rs. 2 lacs for laying the Cricket Pitch at Mohali.(iv) The note dated 21.1.1997 of Chief Administrator PUDA brought out may serious irregularities in regard to grant of funds for the Cricket Stadium and the `PCA Club.(v) It had also come to the Petitioners notice that Sh. Bindra directed other companies like Punjab Tractors Ltd., Punwire, PACL etc. not to furnish any information to the Chief Secretary about payments made by them to the Punjab Cricket Association.(vi) The glaring fact that Sh. Bindra had transferred the land to the Punjab Cricket Association at his own level, without the approval of the Finance Department or any higher authority like Minister or Chief Minister, even though the approval of Council of Ministers was mandatory under the rules. The Sports Department itself did not have any title to the property. It still does not have it.(vii) The land use was changed by the Housing Development Board from Sports Complex/Cycle Velodrome to Cricket Stadium at Sh. Bindras behest, following collusive and malafide "interdepartmental meetings" with Sh. Mann.(viii) Housing Board connived at serious encroachments made by the PCA which is actually in occupation of about 20 acres, as against 105. acres, as against 10.5 acres mentioned in the decision of the Governor-in-Council (order dated 29.4.91) which in any case was not for a Cricket Stadium, but for a Sports Complex/Velodrome." It is on this score Mr. Subramaniam for respondent No. 1 contended that the factual context as noted hereinbefore prompted the Chief Secretary to submit the note to the Chief Minister and the allegation of not assessing the factual situation in its entirety cannot be said to be correct. 36. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malce or malafide, motive involved in the mater of issue of a charge-sheet or the concerned authority is so based that the inquiry would be a mere farcical show and the conclusion are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. 37. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, a such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mind set viz. : the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. it is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt to the charge-sheet or show-cause as th case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows by not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. 38. Admittedly, two enquiries were floated through CBI but purity and probity being the key words in public service and in the event a civil servant is alleged to have assets dis-proportionate to his income or in the event, there was parting of a huge property in support of which adequate data was not available - can the action be said to be the resultant effect of the personal vendetta or can any chargesheet be issued on the basis thereof, the answer cannot possibly be but in the negative. 39. The contextual facts depict that there is a noting by an official in the administration that certain vigilance matters are pending as against open of Secretaries but that stands ignored. We have dealt with this aspect of the matter in detail therein before in this judgment thus suffice it to note that further effort on the part of Shri Khanna in bringing to notice to the Chief Minister would not have resulted any further development and in that perspective that conduct of Shri Khanna cannot be faulted in any way. These are the instances which the High Court ascribed to be not in accordance with the known principles of law and attributed motive as regards initiation of the chargesheet. Opinion of the Court40. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decision cited from the Bar since facts are otherwise different in each of the decisions.
### Response:
0
### Explanation:
40. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decision cited from the Bar since facts are otherwise different in each of the decisions.
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Management Of National & Grindlaysbank Ltd Vs. Their Workmen | be admissible to the workmen of National and Grindlays Bank Ltd., Kanpur Branch and from which date".The Tribunal called for information in respect of the number of employees in the category of workmen, as well as of officers or staff on special rates and pay working at the Kanpur Branch. It also required the Bank to give the monetary ceilings which have been fixed by the Bank for its officers. After receiving the information in respect of the aforesaid matter the Tribunal made the impugned Award.7. It was sought to be contended before the Tribunal that the Sastry and Desai Awards which preserved the benefits enjoyed by the employees of the Kanpur Branch of the Appellant Bank could not be curtailed to their disadvantage and that the matter is concluded by resjudicata. This argument was rejected as being misconceived. It was pointed out that the bipartite settlement clearly stated that the medical aid and expenses have to be standardised for the workmen of the Kanpur Branch for bringing them in line with the employees of the other Branches. In order to achieve this aim a direction was given to the parties to hold discussions in an endeavour to come to a settlement The Tribunal further pointed out that the terms of reference of the dispute itself envisaged the determination of the question of fixation of the monetary limit and hence it was not precluded from going into that question.8. The Award is assailed on the ground that the Tribunal having recognised the need for standardising the benefits in respect of Medical aid and expenses it ought not to have fixed them at a rate higher than those fixed for the employees of the Bank in other Branches particularly when nothing has been shown as to why the Kanpur Branch employees should be given a favoured treatment. It is also contended that the Award relating to hospitalisation has been made applicable to the members of the family of the employees at Kanpur while no such facility is available to the other workers. On the other hand the Respondents adopt the stand taken up before the Tribunal namely that benefits enjoyed by the employees of the Kanpur Branch of having unlimited medical aid facilities cannot be curtailed.9. It appears to us that the object of the bipartite agreement was to standardise the facility in respect of medical aid and expenses, but when it was found that one of the Branches of the Appellant Bank was not able to fall in line that was left to further negotiations, but nonetheless it was made clearly manifest that standardisation should be achieved to bring them in line with the other workmen of the Bank in regard to Medical aid and expenses.10. There can be no doubt as to the validity of the principle of standardisation and particularly when nothing has been stated nor any material placed before us as to why the Kanpur employees of the Appellant Bank should be given a favoured treatment. When we consider the workmen in cities bigger than Kanpur like Calcutta, Bombay and Madras being given the same facility as that which was agreed to, there appears no justification for giving the Kanpur employees who fall in the same category i.e Class A, Area I, a different and more advantageous treatment. Even when the Kanpur employees enjoyed unlimited medical benefits, those benefits were not available to the members of their family nor was the hospitalisation extended to them. It was pointed out that under the unlimited scheme the expenditure incurred on the employees on an average was Rs 250/- and above, but this as has already been pointed out is only limited to the employees and not to their families When once there has been a general revision in respect of the pay scales and other amenities and facilities which are more advantageous than under the previous Award there seems to be no reason why the employees of the Kanpur Branch should be treated as favoured employees it is not a case of protecting the wage of an individual workman who was getting higher than what is envisaged in the standardisation scheme at the time when such a scheme is brought into force. If that were so we would have kept in view the three conditions laid down in Birla Cotton Spinning and Weaving Mills v Workmen, (1963) 2 SCR 716 at pp. 730--731 = (AIR 1966 SC 1158 at p 1162- 1163). We do not find any cogent reasons upon which the Tribunal has distinguished the case of the workmen at Kanpur and singled them out for beneficial treatment. It may be noticed that under the bipartite agreement the workmen are having the benefit of medical aid extended to the members of the family which was not applicable to the workmen before. Even though the employees of the Kanpur Branch had no upper limit their families were not given the benefit of medical aid, nor is there any justification for the Tribunal to extend the hospitalisation facilties to the members of the families if that was not enjoyed by the workmen in the other Branches of the Appellant Bank and in other Banks which are similarly situated. We are unable to find any principle or justification for giving the employees of the Kanpur Branch a favoured treatment which other employees of the Banks and even of the Appellant in other Branches cannot avail under the Bipartite agreement. In this view we would have placed them in the same category as the employees of other Branches of the Appellant who are similarly situated. However, in view of the fact that the Appellant Bank was agreeable to give a higher limit as indicated in its offer before the Conciliation Officer though for a limited period namely till the next All India Settlement/Award which offer was also reiterated before us but was not accepted, we think that the interests of the employees of the Kanpur Branch are well served by that offer. | 1[ds]9. It appears to us that the object of the bipartite agreement was to standardise the facility in respect of medical aid and expenses, but when it was found that one of the Branches of the Appellant Bank was not able to fall in line that was left to further negotiations, but nonetheless it was made clearly manifest that standardisation should be achieved to bring them in line with the other workmen of the Bank in regard to Medical aid and expenses.10. There can be no doubt as to the validity of the principle of standardisation and particularly when nothing has been stated nor any material placed before us as to why the Kanpur employees of the Appellant Bank should be given a favoured treatment. When we consider the workmen in cities bigger than Kanpur like Calcutta, Bombay and Madras being given the same facility as that which was agreed to, there appears no justification for giving the Kanpur employees who fall in the same category i.e Class A, Area I, a different and more advantageous treatment. Even when the Kanpur employees enjoyed unlimited medical benefits, those benefits were not available to the members of their family nor was the hospitalisation extended to them. It was pointed out that under the unlimited scheme the expenditure incurred on the employees on an average was Rs 250/- and above, but this as has already been pointed out is only limited to the employees and not to their families When once there has been a general revision in respect of the pay scales and other amenities and facilities which are more advantageous than under the previous Award there seems to be no reason why the employees of the Kanpur Branch should be treated as favoured employees it is not a case of protecting the wage of an individual workman who was getting higher than what is envisaged in the standardisation scheme at the time when such a scheme is brought into force. If that were so we would have kept in view the three conditions laid down in Birla Cotton Spinning and Weaving Mills v Workmen, (1963) 2 SCR 716 at pp. 730--731 = (AIR 1966 SC 1158 at p 1162- 1163). We do not find any cogent reasons upon which the Tribunal has distinguished the case of the workmen at Kanpur and singled them out for beneficial treatment. It may be noticed that under the bipartite agreement the workmen are having the benefit of medical aid extended to the members of the family which was not applicable to the workmen before. Even though the employees of the Kanpur Branch had no upper limit their families were not given the benefit of medical aid, nor is there any justification for the Tribunal to extend the hospitalisation facilties to the members of the families if that was not enjoyed by the workmen in the other Branches of the Appellant Bank and in other Banks which are similarly situated. We are unable to find any principle or justification for giving the employees of the Kanpur Branch a favoured treatment which other employees of the Banks and even of the Appellant in other Branches cannot avail under the Bipartite agreement. In this view we would have placed them in the same category as the employees of other Branches of the Appellant who are similarly situated. However, in view of the fact that the Appellant Bank was agreeable to give a higher limit as indicated in its offer before the Conciliation Officer though for a limited period namely till the next All India Settlement/Award which offer was also reiterated before us but was not accepted, we think that the interests of the employees of the Kanpur Branch are well served by that offer. | 1 | 2,497 | 663 | ### 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:
be admissible to the workmen of National and Grindlays Bank Ltd., Kanpur Branch and from which date".The Tribunal called for information in respect of the number of employees in the category of workmen, as well as of officers or staff on special rates and pay working at the Kanpur Branch. It also required the Bank to give the monetary ceilings which have been fixed by the Bank for its officers. After receiving the information in respect of the aforesaid matter the Tribunal made the impugned Award.7. It was sought to be contended before the Tribunal that the Sastry and Desai Awards which preserved the benefits enjoyed by the employees of the Kanpur Branch of the Appellant Bank could not be curtailed to their disadvantage and that the matter is concluded by resjudicata. This argument was rejected as being misconceived. It was pointed out that the bipartite settlement clearly stated that the medical aid and expenses have to be standardised for the workmen of the Kanpur Branch for bringing them in line with the employees of the other Branches. In order to achieve this aim a direction was given to the parties to hold discussions in an endeavour to come to a settlement The Tribunal further pointed out that the terms of reference of the dispute itself envisaged the determination of the question of fixation of the monetary limit and hence it was not precluded from going into that question.8. The Award is assailed on the ground that the Tribunal having recognised the need for standardising the benefits in respect of Medical aid and expenses it ought not to have fixed them at a rate higher than those fixed for the employees of the Bank in other Branches particularly when nothing has been shown as to why the Kanpur Branch employees should be given a favoured treatment. It is also contended that the Award relating to hospitalisation has been made applicable to the members of the family of the employees at Kanpur while no such facility is available to the other workers. On the other hand the Respondents adopt the stand taken up before the Tribunal namely that benefits enjoyed by the employees of the Kanpur Branch of having unlimited medical aid facilities cannot be curtailed.9. It appears to us that the object of the bipartite agreement was to standardise the facility in respect of medical aid and expenses, but when it was found that one of the Branches of the Appellant Bank was not able to fall in line that was left to further negotiations, but nonetheless it was made clearly manifest that standardisation should be achieved to bring them in line with the other workmen of the Bank in regard to Medical aid and expenses.10. There can be no doubt as to the validity of the principle of standardisation and particularly when nothing has been stated nor any material placed before us as to why the Kanpur employees of the Appellant Bank should be given a favoured treatment. When we consider the workmen in cities bigger than Kanpur like Calcutta, Bombay and Madras being given the same facility as that which was agreed to, there appears no justification for giving the Kanpur employees who fall in the same category i.e Class A, Area I, a different and more advantageous treatment. Even when the Kanpur employees enjoyed unlimited medical benefits, those benefits were not available to the members of their family nor was the hospitalisation extended to them. It was pointed out that under the unlimited scheme the expenditure incurred on the employees on an average was Rs 250/- and above, but this as has already been pointed out is only limited to the employees and not to their families When once there has been a general revision in respect of the pay scales and other amenities and facilities which are more advantageous than under the previous Award there seems to be no reason why the employees of the Kanpur Branch should be treated as favoured employees it is not a case of protecting the wage of an individual workman who was getting higher than what is envisaged in the standardisation scheme at the time when such a scheme is brought into force. If that were so we would have kept in view the three conditions laid down in Birla Cotton Spinning and Weaving Mills v Workmen, (1963) 2 SCR 716 at pp. 730--731 = (AIR 1966 SC 1158 at p 1162- 1163). We do not find any cogent reasons upon which the Tribunal has distinguished the case of the workmen at Kanpur and singled them out for beneficial treatment. It may be noticed that under the bipartite agreement the workmen are having the benefit of medical aid extended to the members of the family which was not applicable to the workmen before. Even though the employees of the Kanpur Branch had no upper limit their families were not given the benefit of medical aid, nor is there any justification for the Tribunal to extend the hospitalisation facilties to the members of the families if that was not enjoyed by the workmen in the other Branches of the Appellant Bank and in other Banks which are similarly situated. We are unable to find any principle or justification for giving the employees of the Kanpur Branch a favoured treatment which other employees of the Banks and even of the Appellant in other Branches cannot avail under the Bipartite agreement. In this view we would have placed them in the same category as the employees of other Branches of the Appellant who are similarly situated. However, in view of the fact that the Appellant Bank was agreeable to give a higher limit as indicated in its offer before the Conciliation Officer though for a limited period namely till the next All India Settlement/Award which offer was also reiterated before us but was not accepted, we think that the interests of the employees of the Kanpur Branch are well served by that offer.
### Response:
1
### Explanation:
9. It appears to us that the object of the bipartite agreement was to standardise the facility in respect of medical aid and expenses, but when it was found that one of the Branches of the Appellant Bank was not able to fall in line that was left to further negotiations, but nonetheless it was made clearly manifest that standardisation should be achieved to bring them in line with the other workmen of the Bank in regard to Medical aid and expenses.10. There can be no doubt as to the validity of the principle of standardisation and particularly when nothing has been stated nor any material placed before us as to why the Kanpur employees of the Appellant Bank should be given a favoured treatment. When we consider the workmen in cities bigger than Kanpur like Calcutta, Bombay and Madras being given the same facility as that which was agreed to, there appears no justification for giving the Kanpur employees who fall in the same category i.e Class A, Area I, a different and more advantageous treatment. Even when the Kanpur employees enjoyed unlimited medical benefits, those benefits were not available to the members of their family nor was the hospitalisation extended to them. It was pointed out that under the unlimited scheme the expenditure incurred on the employees on an average was Rs 250/- and above, but this as has already been pointed out is only limited to the employees and not to their families When once there has been a general revision in respect of the pay scales and other amenities and facilities which are more advantageous than under the previous Award there seems to be no reason why the employees of the Kanpur Branch should be treated as favoured employees it is not a case of protecting the wage of an individual workman who was getting higher than what is envisaged in the standardisation scheme at the time when such a scheme is brought into force. If that were so we would have kept in view the three conditions laid down in Birla Cotton Spinning and Weaving Mills v Workmen, (1963) 2 SCR 716 at pp. 730--731 = (AIR 1966 SC 1158 at p 1162- 1163). We do not find any cogent reasons upon which the Tribunal has distinguished the case of the workmen at Kanpur and singled them out for beneficial treatment. It may be noticed that under the bipartite agreement the workmen are having the benefit of medical aid extended to the members of the family which was not applicable to the workmen before. Even though the employees of the Kanpur Branch had no upper limit their families were not given the benefit of medical aid, nor is there any justification for the Tribunal to extend the hospitalisation facilties to the members of the families if that was not enjoyed by the workmen in the other Branches of the Appellant Bank and in other Banks which are similarly situated. We are unable to find any principle or justification for giving the employees of the Kanpur Branch a favoured treatment which other employees of the Banks and even of the Appellant in other Branches cannot avail under the Bipartite agreement. In this view we would have placed them in the same category as the employees of other Branches of the Appellant who are similarly situated. However, in view of the fact that the Appellant Bank was agreeable to give a higher limit as indicated in its offer before the Conciliation Officer though for a limited period namely till the next All India Settlement/Award which offer was also reiterated before us but was not accepted, we think that the interests of the employees of the Kanpur Branch are well served by that offer.
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State of Haryana Vs. Jagbir Singh and Others | GOSWAMI, J.1. These two appeals by special leave are directed against the judgment and order of acquittal of both the accused respondents of the High Court of Punjab and Haryana. They had been earlier convicted under Section 302/34, I.P.C. and sentenced to imprisonment for life by the Sessions Judge. The case depends entirely upon circumstantial evidence.2. The dead body of the deceased Naresh Kumar with several incised gaping wounds was found on the morning of March 16, 1975 which resulted in an information to the Police by his father. The two accused were very friendly with the deceased and it was stated in the First Information Report that the deceased was last seen during the previous night with them. Suspicion naturally fell on them and investigation commenced.3. The Sessions Judge detailed the circumstances on which he relied for the purpose of conviction of the respondents as follows :From the prosecution evidence discussed above, the following circumstances stand proved. The two accused demanded a party from the deceased at about 6.30 p.m. All of them took liquor and Bhujia of eggs outside the Malabar Hotel. They then enjoyed their dinner in Chakor Restaurant and the two accused along with Naresh Kumar deceased were last seen going towards Maian Mohalla on motor-cycle at 10.00 p.m. after purchasing a packet of cigarettes and a betel from the shop of Sekhar Chand, betel seller. In the morning on the next day, Naresh Kumar was lying murdered in the Ram Lila Grounds. After their arrest, accused were interrogated and in consequence of their disclosure statements, they got recovered knives Exs. P-1 and P-2 and their blood-stained clothes. According to the evidence on the record, the group of blood found on the clothes of the deceased and those of the two accused was of the same and further injuries found on the person of the deceased could be caused with knives Exs. P-1 and P-2. These circumstances, in my considered view, are sufficient to prove that they were the accused alone, who committed the murder of Naresh Kumar and none else.4. Although prosecution relied upon extra-judicial confession made by the accused before Deputy Prasad (P.W. 14), neither the Sessions Judge nor the High Court placed any credence on the same. Both the Courts also rejected the testimony of two important witnesses, viz., PW 13, regarding extra-judicial confession and PW 15 with regard to recovery of certain incriminating articles at the instance of the two accused. Thus the prosecution case did not emerge unscathed even from the hands of the Sessions Judge on some material aspects.5. Similarly a certain motive for the murder was sought to be established by producing an amorous letter Ex. PZ in the hand of the deceased stated to be produced before the police by accused Sarwan Kumar on March 18, 1975. This letter, on its face, was not addressed to any person by name and was alleged by the prosecution to be intended by the deceased for the step-mother of Sarwan Kumar thus furnishing a motive for the murder. There was no attempt, whatsoever, by the prosecution to establish that the unnamed addressee of the letter could at all be the step-mother of the accused Sarwan. This was all about the motive.6. The High Court found a very serious infirmity in the entire prosecution case from an admission which had been made earlier by Sukhbir Singh (PW 18), the father of the deceased. From that statement the High Court found that Sukhbir Singh had admitted that the accused were arrested by the police in this case on March 16, 1975, the very day the dead body of his son was found at the Ram Lila Grounds. If the arrest of the accused on March 16 is true, as stated by Sukhbir Singh, not only the extra-judicial confession of the accused before Deputy Prasad on March 18, 1975 but also the recoveries of the blood-stained clothes and kirpans made by the police on March 18, 1975 following the alleged statements of the accused lose all credibility. This is the principal ground on which the High Court came to the conclusion that there was "padding" in the prosecution case and that certain evidence was fabricated in order to implicate the accused.7. There was a further fact which the High Court took into consideration. Narain Das (PW 7) and Shekhar Chand (PW 8) stated that the accused were last seen at 10.00 p.m. on March 15 with the deceased who was then wearing "bush-shirt and pants". At the post-mortem the doctor fund "a shirt and pullover on the dead body". The High Court therefore rightly observed that possibility was not ruled out that the deceased went elsewhere with others after changing his dress after he was last seen by the witnesses with the accused.8. The High Court gave proper consideration to all the reasons given by the Sessions Judge and when the main planks in the circumstantial evidence gave way no conviction could be sustained. We find that the reasons given by the High Court for its conclusions are cogent and clinching and there was no other judicial alternative than to record an acquittal. The High Court has rightly interfered with the conviction in this case. | 0[ds]6. The High Court found a very serious infirmity in the entire prosecution case from an admission which had been made earlier by Sukhbir Singh (PW 18), the father of the deceased. From that statement the High Court found that Sukhbir Singh had admitted that the accused were arrested by the police in this case on March 16, 1975, the very day the dead body of his son was found at the Ram Lila Grounds. If the arrest of the accused on March 16 is true, as stated by Sukhbir Singh, not only theconfession of the accused before Deputy Prasad on March 18, 1975 but also the recoveries of theclothes and kirpans made by the police on March 18, 1975 following the alleged statements of the accused lose all credibility. This is the principal ground on which the High Court came to the conclusion that there was "padding" in the prosecution case and that certain evidence was fabricated in order to implicate the accused.7. There was a further fact which the High Court took into consideration. Narain Das (PW 7) and Shekhar Chand (PW 8) stated that the accused were last seen at 10.00 p.m. on March 15 with the deceased who was then wearingand pants". At thethe doctor fund "a shirt and pullover on the dead body". The High Court therefore rightly observed that possibility was not ruled out that the deceased went elsewhere with others after changing his dress after he was last seen by the witnesses with the accused.8. The High Court gave proper consideration to all the reasons given by the Sessions Judge and when the main planks in the circumstantial evidence gave way no conviction could be sustained. We find that the reasons given by the High Court for its conclusions are cogent and clinching and there was no other judicial alternative than to record an acquittal. The High Court has rightly interfered with the conviction in this case. | 0 | 951 | 358 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
GOSWAMI, J.1. These two appeals by special leave are directed against the judgment and order of acquittal of both the accused respondents of the High Court of Punjab and Haryana. They had been earlier convicted under Section 302/34, I.P.C. and sentenced to imprisonment for life by the Sessions Judge. The case depends entirely upon circumstantial evidence.2. The dead body of the deceased Naresh Kumar with several incised gaping wounds was found on the morning of March 16, 1975 which resulted in an information to the Police by his father. The two accused were very friendly with the deceased and it was stated in the First Information Report that the deceased was last seen during the previous night with them. Suspicion naturally fell on them and investigation commenced.3. The Sessions Judge detailed the circumstances on which he relied for the purpose of conviction of the respondents as follows :From the prosecution evidence discussed above, the following circumstances stand proved. The two accused demanded a party from the deceased at about 6.30 p.m. All of them took liquor and Bhujia of eggs outside the Malabar Hotel. They then enjoyed their dinner in Chakor Restaurant and the two accused along with Naresh Kumar deceased were last seen going towards Maian Mohalla on motor-cycle at 10.00 p.m. after purchasing a packet of cigarettes and a betel from the shop of Sekhar Chand, betel seller. In the morning on the next day, Naresh Kumar was lying murdered in the Ram Lila Grounds. After their arrest, accused were interrogated and in consequence of their disclosure statements, they got recovered knives Exs. P-1 and P-2 and their blood-stained clothes. According to the evidence on the record, the group of blood found on the clothes of the deceased and those of the two accused was of the same and further injuries found on the person of the deceased could be caused with knives Exs. P-1 and P-2. These circumstances, in my considered view, are sufficient to prove that they were the accused alone, who committed the murder of Naresh Kumar and none else.4. Although prosecution relied upon extra-judicial confession made by the accused before Deputy Prasad (P.W. 14), neither the Sessions Judge nor the High Court placed any credence on the same. Both the Courts also rejected the testimony of two important witnesses, viz., PW 13, regarding extra-judicial confession and PW 15 with regard to recovery of certain incriminating articles at the instance of the two accused. Thus the prosecution case did not emerge unscathed even from the hands of the Sessions Judge on some material aspects.5. Similarly a certain motive for the murder was sought to be established by producing an amorous letter Ex. PZ in the hand of the deceased stated to be produced before the police by accused Sarwan Kumar on March 18, 1975. This letter, on its face, was not addressed to any person by name and was alleged by the prosecution to be intended by the deceased for the step-mother of Sarwan Kumar thus furnishing a motive for the murder. There was no attempt, whatsoever, by the prosecution to establish that the unnamed addressee of the letter could at all be the step-mother of the accused Sarwan. This was all about the motive.6. The High Court found a very serious infirmity in the entire prosecution case from an admission which had been made earlier by Sukhbir Singh (PW 18), the father of the deceased. From that statement the High Court found that Sukhbir Singh had admitted that the accused were arrested by the police in this case on March 16, 1975, the very day the dead body of his son was found at the Ram Lila Grounds. If the arrest of the accused on March 16 is true, as stated by Sukhbir Singh, not only the extra-judicial confession of the accused before Deputy Prasad on March 18, 1975 but also the recoveries of the blood-stained clothes and kirpans made by the police on March 18, 1975 following the alleged statements of the accused lose all credibility. This is the principal ground on which the High Court came to the conclusion that there was "padding" in the prosecution case and that certain evidence was fabricated in order to implicate the accused.7. There was a further fact which the High Court took into consideration. Narain Das (PW 7) and Shekhar Chand (PW 8) stated that the accused were last seen at 10.00 p.m. on March 15 with the deceased who was then wearing "bush-shirt and pants". At the post-mortem the doctor fund "a shirt and pullover on the dead body". The High Court therefore rightly observed that possibility was not ruled out that the deceased went elsewhere with others after changing his dress after he was last seen by the witnesses with the accused.8. The High Court gave proper consideration to all the reasons given by the Sessions Judge and when the main planks in the circumstantial evidence gave way no conviction could be sustained. We find that the reasons given by the High Court for its conclusions are cogent and clinching and there was no other judicial alternative than to record an acquittal. The High Court has rightly interfered with the conviction in this case.
### Response:
0
### Explanation:
6. The High Court found a very serious infirmity in the entire prosecution case from an admission which had been made earlier by Sukhbir Singh (PW 18), the father of the deceased. From that statement the High Court found that Sukhbir Singh had admitted that the accused were arrested by the police in this case on March 16, 1975, the very day the dead body of his son was found at the Ram Lila Grounds. If the arrest of the accused on March 16 is true, as stated by Sukhbir Singh, not only theconfession of the accused before Deputy Prasad on March 18, 1975 but also the recoveries of theclothes and kirpans made by the police on March 18, 1975 following the alleged statements of the accused lose all credibility. This is the principal ground on which the High Court came to the conclusion that there was "padding" in the prosecution case and that certain evidence was fabricated in order to implicate the accused.7. There was a further fact which the High Court took into consideration. Narain Das (PW 7) and Shekhar Chand (PW 8) stated that the accused were last seen at 10.00 p.m. on March 15 with the deceased who was then wearingand pants". At thethe doctor fund "a shirt and pullover on the dead body". The High Court therefore rightly observed that possibility was not ruled out that the deceased went elsewhere with others after changing his dress after he was last seen by the witnesses with the accused.8. The High Court gave proper consideration to all the reasons given by the Sessions Judge and when the main planks in the circumstantial evidence gave way no conviction could be sustained. We find that the reasons given by the High Court for its conclusions are cogent and clinching and there was no other judicial alternative than to record an acquittal. The High Court has rightly interfered with the conviction in this case.
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Paresh P.Rajda Vs. State Of Maharashtra | of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (C) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 6. As this matter had come before the three-Judge Bench on a reference, the Bench reverted the matter for a discussion on facts to a Bench of two-Judges. It was this matter which was again examined by the Bench and reported as S.M.S. Pharmaceuticals Ltd. (2007) 4 SCC 70 and it was found that the necessary averments had been made in the complaint so as to attract the provisions of Section 141 of the Act. The appeal filed by the company was accordingly dismissed. This matter once again came up for consideration in Rangacharis case (supra) and in paragraph 21 it was observed: "A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore,, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are in charge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position." 7. A reading of this passage would reveal a slight departure vis-à-vis the other judgments in favour of the complainant. It will be noticed that this decision too was rendered on a consideration of both the judgments in S.M.S. Pharmaceuticals. The matter came up yet again for consideration in N.K. Wahi case (supra) which reiterated the earlier view and held that where there were no clear averment in the complaint or the evidence with regard to the role played by the Directors and as to whether and they were in charge and responsible for the conduct of the affairs of the company, it would not be possible to maintain the prosecution against them and they were entitled to acquittal. It may however be noticed that this was a case where an acquittal was recorded after trial.8. It will be clear from the afore quoted judgments that the entire matter would boil down to an examination of the nature of averments made in the complaint though we observe a slight digression in the judgment in N. Rangachari case (supra). It is in this background, that the complaint needs to be examined. Paragraphs 2 and 8 are reproduced below: "(2) I know the all the accused. The accused No.1 is company registered under the Companies Act, 1956. Accused No.2 is the Chairman of the accused No.1. Accused No.3 is the Joint Managing Director of the Accused No.1 and accused No.4, 5 and 6 are the Directors of the accused No.1.(8) The accused No.2 is the Chairman of accused No.1 and is responsible for the day to day affairs of accused No.1 and therefore he is liable to repay amount of dishonoured cheques. Accused No.3 being Joint Managing Director and accused No.4,5 and 6 being the Director of the accused No.1 are responsible officer of accused No.1 and therefore they are liable to repay the amounts of the dishonoured cheques. As the accused have failed to make the payment within the stipulated period of 15 days after receipt of statutory notice they have committed and offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act 1881 (As amended). Hence this complaint is filed before this Honble Court." 9. A perusal of the aforesaid paragraphs would show that accused No.2 is Paresh Rajda, the Chairman of the Company, and as per the impugned judgment of the High Court, the question of his responsibility for the business of the Company has not been seriously challenged. We, nonetheless, find clear allegations against both the accused/appellants to the effect that they were officers and responsible for the affairs of the company. | 0[ds]6. As this matter had come before the three-Judge Bench on a reference, the Bench reverted the matter for a discussion on facts to a Bench of two-Judges. It was this matter which was again examined by the Bench and reported as S.M.S. Pharmaceuticals Ltd. (2007) 4 SCC 70 and it was found that the necessary averments had been made in the complaint so as to attract the provisions of Section 141 of the Act. The appeal filed by the company was accordingly dismissed. This matter once again came up for consideration in Rangacharis case (supra) and in paragraph 21 it wasperson normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore,, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are in charge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position.A reading of this passage would reveal a slight departure vis-à-vis the other judgments in favour of the complainant. It will be noticed that this decision too was rendered on a consideration of both the judgments in S.M.S. Pharmaceuticals. The matter came up yet again for consideration in N.K. Wahi case (supra) which reiterated the earlier view and held that where there were no clear averment in the complaint or the evidence with regard to the role played by the Directors and as to whether and they were in charge and responsible for the conduct of the affairs of the company, it would not be possible to maintain the prosecution against them and they were entitled to acquittal. It may however be noticed that this was a case where an acquittal was recorded after trial.8. It will be clear from the afore quoted judgments that the entire matter would boil down to an examination of the nature of averments made in the complaint though we observe a slight digression in the judgment in N. Rangachari case (supra). It is in this background, that the complaint needs to be examined. Paragraphs 2 and 8 are reproducedI know the all the accused. The accused No.1 is company registered under the Companies Act, 1956. Accused No.2 is the Chairman of the accused No.1. Accused No.3 is the Joint Managing Director of the Accused No.1 and accused No.4, 5 and 6 are the Directors of the accused No.1.(8) The accused No.2 is the Chairman of accused No.1 and is responsible for the day to day affairs of accused No.1 and therefore he is liable to repay amount of dishonoured cheques. Accused No.3 being Joint Managing Director and accused No.4,5 and 6 being the Director of the accused No.1 are responsible officer of accused No.1 and therefore they are liable to repay the amounts of the dishonoured cheques. As the accused have failed to make the payment within the stipulated period of 15 days after receipt of statutory notice they have committed and offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act 1881 (As amended). Hence this complaint is filed before this Honble Court.A perusal of the aforesaid paragraphs would show that accused No.2 is Paresh Rajda, the Chairman of the Company, and as per the impugned judgment of the High Court, the question of his responsibility for the business of the Company has not been seriously challenged. We, nonetheless, find clear allegations against both the accused/appellants to the effect that they were officers and responsible for the affairs of the company. | 0 | 2,266 | 781 | ### 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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of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (C) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 6. As this matter had come before the three-Judge Bench on a reference, the Bench reverted the matter for a discussion on facts to a Bench of two-Judges. It was this matter which was again examined by the Bench and reported as S.M.S. Pharmaceuticals Ltd. (2007) 4 SCC 70 and it was found that the necessary averments had been made in the complaint so as to attract the provisions of Section 141 of the Act. The appeal filed by the company was accordingly dismissed. This matter once again came up for consideration in Rangacharis case (supra) and in paragraph 21 it was observed: "A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore,, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are in charge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position." 7. A reading of this passage would reveal a slight departure vis-à-vis the other judgments in favour of the complainant. It will be noticed that this decision too was rendered on a consideration of both the judgments in S.M.S. Pharmaceuticals. The matter came up yet again for consideration in N.K. Wahi case (supra) which reiterated the earlier view and held that where there were no clear averment in the complaint or the evidence with regard to the role played by the Directors and as to whether and they were in charge and responsible for the conduct of the affairs of the company, it would not be possible to maintain the prosecution against them and they were entitled to acquittal. It may however be noticed that this was a case where an acquittal was recorded after trial.8. It will be clear from the afore quoted judgments that the entire matter would boil down to an examination of the nature of averments made in the complaint though we observe a slight digression in the judgment in N. Rangachari case (supra). It is in this background, that the complaint needs to be examined. Paragraphs 2 and 8 are reproduced below: "(2) I know the all the accused. The accused No.1 is company registered under the Companies Act, 1956. Accused No.2 is the Chairman of the accused No.1. Accused No.3 is the Joint Managing Director of the Accused No.1 and accused No.4, 5 and 6 are the Directors of the accused No.1.(8) The accused No.2 is the Chairman of accused No.1 and is responsible for the day to day affairs of accused No.1 and therefore he is liable to repay amount of dishonoured cheques. Accused No.3 being Joint Managing Director and accused No.4,5 and 6 being the Director of the accused No.1 are responsible officer of accused No.1 and therefore they are liable to repay the amounts of the dishonoured cheques. As the accused have failed to make the payment within the stipulated period of 15 days after receipt of statutory notice they have committed and offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act 1881 (As amended). Hence this complaint is filed before this Honble Court." 9. A perusal of the aforesaid paragraphs would show that accused No.2 is Paresh Rajda, the Chairman of the Company, and as per the impugned judgment of the High Court, the question of his responsibility for the business of the Company has not been seriously challenged. We, nonetheless, find clear allegations against both the accused/appellants to the effect that they were officers and responsible for the affairs of the company.
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6. As this matter had come before the three-Judge Bench on a reference, the Bench reverted the matter for a discussion on facts to a Bench of two-Judges. It was this matter which was again examined by the Bench and reported as S.M.S. Pharmaceuticals Ltd. (2007) 4 SCC 70 and it was found that the necessary averments had been made in the complaint so as to attract the provisions of Section 141 of the Act. The appeal filed by the company was accordingly dismissed. This matter once again came up for consideration in Rangacharis case (supra) and in paragraph 21 it wasperson normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore,, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are in charge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position.A reading of this passage would reveal a slight departure vis-à-vis the other judgments in favour of the complainant. It will be noticed that this decision too was rendered on a consideration of both the judgments in S.M.S. Pharmaceuticals. The matter came up yet again for consideration in N.K. Wahi case (supra) which reiterated the earlier view and held that where there were no clear averment in the complaint or the evidence with regard to the role played by the Directors and as to whether and they were in charge and responsible for the conduct of the affairs of the company, it would not be possible to maintain the prosecution against them and they were entitled to acquittal. It may however be noticed that this was a case where an acquittal was recorded after trial.8. It will be clear from the afore quoted judgments that the entire matter would boil down to an examination of the nature of averments made in the complaint though we observe a slight digression in the judgment in N. Rangachari case (supra). It is in this background, that the complaint needs to be examined. Paragraphs 2 and 8 are reproducedI know the all the accused. The accused No.1 is company registered under the Companies Act, 1956. Accused No.2 is the Chairman of the accused No.1. Accused No.3 is the Joint Managing Director of the Accused No.1 and accused No.4, 5 and 6 are the Directors of the accused No.1.(8) The accused No.2 is the Chairman of accused No.1 and is responsible for the day to day affairs of accused No.1 and therefore he is liable to repay amount of dishonoured cheques. Accused No.3 being Joint Managing Director and accused No.4,5 and 6 being the Director of the accused No.1 are responsible officer of accused No.1 and therefore they are liable to repay the amounts of the dishonoured cheques. As the accused have failed to make the payment within the stipulated period of 15 days after receipt of statutory notice they have committed and offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act 1881 (As amended). Hence this complaint is filed before this Honble Court.A perusal of the aforesaid paragraphs would show that accused No.2 is Paresh Rajda, the Chairman of the Company, and as per the impugned judgment of the High Court, the question of his responsibility for the business of the Company has not been seriously challenged. We, nonetheless, find clear allegations against both the accused/appellants to the effect that they were officers and responsible for the affairs of the company.
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Board Of Revenue For Rajasthan, Ajmer & Ors Vs. Rao Bal Deo Singh & Ors | in the present case falls directly within the ambit of Section 23 of the Act and the Jagir Commissioner alone has the exclusive jurisdiction to determine that question. 8. It was objected on behalf of the respondents that, in any case, the question cannot be determined by the Jagir Commissioner after the resumption proceedings had come to an end. It was said that after the proceedings for resumption were completed under the Act and award of compensation has been made, there is no jurisdiction left in the Jagir Commissioner to proceed with an enquiry under Section 23 (2) of the Act. For the purpose of this case it is not necessary for us to express any opinion as to whether the Jagir Commissioner has jurisdiction to make an enquiry under Section 23 (2) of the Act after the proceedings for resumption have come to a close. It appears that in the present case the Director of Colonisation addressed a letter to the Divisional Commissioner, Bikaner on December 22, 1958 for review of his order dated November 30, 1958 and that he also requested that the matter should be referred to the Jagir Commissioner as he was the only competent authority to determine the nature of the disputed Property under Section 23 (2) of the Act. On receipt of this letter the Divisional Commissioner, Bikaner reviewed his previous order of November 30, 1958 and dismissed the objections of Director of Colonisation on March 5, 1959. It is admitted that the final award was made by the Additional Jagir Commissioner with regard to compensation on January 20, 1959. We shall assume in favour of the respondents that the proceedings for resumption came to a close on January 20, 1959. Even on that assumption the dispute was raised by the Director of Colonisation on December 22, 1958. long before the date of the final award on January 20, 1959 and the Jagir Commissioner had jurisdiction to proceed with the enquiry under section 23 (a) of the Act since the proceedings for resumption were still pending. We are accordingly of the opinion that Counsel for the respondents is unable to make good his argument on this aspect of the case. 9. We proceed to consider the next question arising in this case, viz., whether the High Court was in error in setting aside the orders of the Board of Revenue dated April 8, 1960 and July 16, l962. The Board of Revenue has pointed out that the decision of the Additional Jagir Commissioner dated October 5, 1959 was illegal since ho did not follow the procedure contemplated by Rules 23 and 26 of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 (hereinafter referred to as the Rules). It appears that by its previous order D/- July 24, 1959 the Board of Revenue had set aside the orders of the Divisional Commissioner dated November 30, 1958 and March 5, 1959 and the matter was remanded to him with the direction to refer the matter to the Jagir Commissioner and till the decision of the Jagir Commissioner was received entries in the records should stand as they stood prior to the impugned orders. In compliance with this decision the record was transmitted to the Sub-Divisional Officer, Ganganagar by the office of the Commissioner, Bikaner who in turn sent them on August 24, 1959 to the Sub-Divisional Officer, Raisinghnagar. The letter reached the Sub-Divisional Officer, Raisinghnagar on August 29, 1959 and on it the Sub-Divisional Officer wrote down the following order "Received today, inform the parties to appear before me on 5-9-59" It appears that on September 5 1959 Shri Murlidhar and Shri Sada Nand appeared before the sub-divisional officer, statements of 5 persons were recorded and argument were heard and the case was directed to be put up for writing out the report on September 9, 1959. On this date the Sub-Divisional Officer wrote out the report and forwarded the papers to the Additional Jagir Commissioner. On October 1, 1959, the Additional Jagir Commissioner heard the arguments of the parties and pronounced his decision on October 5, 1959. The Board of Revenue has pointed out that under Rule 23 a date not less shall 2 months from the date of fee order should have been fixed for hearing of the case and published notice should have been served not only on the Jagirdar but also upon the Revenue Secretary to the Government and the Collector of the district. Rule 28 states that the mode of inquiry was that provided for the trial of a suit by a Revenue court. The Sub-Divisional Officer instead of following the rules fixed the date of hearing within a week of the receipt of the order and within further 5 days submitted his report without giving the notices under Rules 23 and 24 and without holding the enquiry in the manner prescribed by Rule 28.The Board of Revenue accordingly set aside the order of the Additional Jagir Commissioner dated October .5, l959 and remanded the case to him with the direction that he should hold the enquiry himself or may entrust the enquire under the provisions of section 23 (2) of the Act to a Subordinate Officer and that the enquiry must be holding either case in accordance with law and the case should be decided thereafter afresh. In our opinion the Board of Revenue was right in taking the view that the Additional Jagir Commissioner should have followed the procedure prescribed by the statutory rules and the High Court had no justification for setting aside the order of the Board of Revenue dated April 8, 1960 and of July 16, 1962. 10. For the reasons expressed we hold that the order of the Rajasthan High Court dated October 7, 1963 quashing the orders of the Board of Revenue dated July 24, 1959, April 8, 1960 and July 16. 1962 should be set aside and Civil Writ Petition No. 482 of 1962 filed by the respondents should be dismissed. | 1[ds]It is true that respondent No. 1 had applied for correction of entries in the revenue records but the correction of revenue records really depended upon the determination of the character of the disputed property and unless it was held by competent authority under the Act that the property was khudkasht land of the Jagirdar the application of respondent No. 1 for the correction of the revenue entries could not be decided by the Revenue Authorities under the provisions of the Rajasthan Land Revenue Act. To put it differently, the argument of the appellants was that the real question that arose for determination was whether the disputed land was khudkasht under Section 23 (1) of the Act and by taking recourse to the provisions of the Rajasthan Land Revenue Act respondent No. 1 could not oust the jurisdiction of the Jagir Commissioner for determination of the dispute. In our opinion the argument put forward by Mr. M. C. Chagla on behalf of the appellants is well founded and must be accepted as correct. The dispute in this case is essentially as to the character of the property claimed by respondent No. 1 as khudkasht and falls directly within the purview of Section 23 of the Act and therefore the Jagir Commissioner is the exclusive authority to hold enquiry into the dispute and give a decision thereonWe are accordingly of the opinion that an enquiry under Section 23 (2) of the Act was necessary in this case and that the Board of Revenue was right in taking the view that the matter should be referred to the Jagir Commissioner for determining the nature of the property under Section 23 (2) of the Act and only after his decision is received should the Commissioner, Bikaner take up the question with regard to the correction of entries under the Rajasthan Land Revenue Act. We consider that the order of the Board of Revenue dated July 24, 1959 is based on a correct interpretation of the law and the High Court of Rajasthan was in error in setting aside that orderIn our view, section 23 of the Act is independent of sec. 37 of the Act as it deals with an enquiry of the nature of the property mentioned in Section 23 (1) and it has nothing to do with the question of determining the right, title or interest of the Jagirdar in the land. Having regard to the scheme and purpose of the Act it is manifest that Section 23 empowers the Jagir Commissioner to determine the character of the properties claimed by the Jagirdar as khudkasht for determination of the compensation to be paid and determining other questions which are incidental to the resumption of the Jagir land. On the other hand, Section 37 of the Act deals with questions of disputed titles and with regard to such a question the section makes a provision for enquiry either by the Jagir Commissioner or by a revenue authority under the Rajasthan Land Revenue Act, 1956. It is manifest that the scope of section 37 is quite different from that of Section 23 and the nature of the enquiry contemplated by the two sections also is different As we have already pointed out, the question arising in the present case falls directly within the ambit of Section 23 of the Act and the Jagir Commissioner alone has the exclusive jurisdiction to determine that questionFor the purpose of this case it is not necessary for us to express any opinion as to whether the Jagir Commissioner has jurisdiction to make an enquiry under Section 23 (2) of the Act after the proceedings for resumption have come to a close. It appears that in the present case the Director of Colonisation addressed a letter to the Divisional Commissioner, Bikaner on December 22, 1958 for review of his order dated November 30, 1958 and that he also requested that the matter should be referred to the Jagir Commissioner as he was the only competent authority to determine the nature of the disputed Property under Section 23 (2) of the Act. On receipt of this letter the Divisional Commissioner, Bikaner reviewed his previous order of November 30, 1958 and dismissed the objections of Director of Colonisation on March 5, 1959. It is admitted that the final award was made by the Additional Jagir Commissioner with regard to compensation on January 20, 1959. We shall assume in favour of the respondents that the proceedings for resumption came to a close on January 20, 1959. Even on that assumption the dispute was raised by the Director of Colonisation on December 22, 1958. long before the date of the final award on January 20, 1959 and the Jagir Commissioner had jurisdiction to proceed with the enquiry under section 23 (a) of the Act since the proceedings for resumption were still pending. We are accordingly of the opinion that Counsel for the respondents is unable to make good his argument on this aspect of the caseThe Board of Revenue has pointed out that the decision of the Additional Jagir Commissioner dated October 5, 1959 was illegal since ho did not follow the procedure contemplated by Rules 23 and 26 of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 (hereinafter referred to as the Rules). It appears that by its previous order D/- July 24, 1959 the Board of Revenue had set aside the orders of the Divisional Commissioner dated November 30, 1958 and March 5, 1959 and the matter was remanded to him with the direction to refer the matter to the Jagir Commissioner and till the decision of the Jagir Commissioner was received entries in the records should stand as they stood prior to the impugned orders. In compliance with this decision the record was transmitted to the Sub-Divisional Officer, Ganganagar by the office of the Commissioner, Bikaner who in turn sent them on August 24, 1959 to the Sub-Divisional Officer, Raisinghnagar. The letter reached the Sub-Divisional Officer, Raisinghnagar on August 29, 1959 and on it the Sub-Divisional Officer wrote down the following order "Received today, inform the parties to appear before me on 5-9-59" It appears that on September 5 1959 Shri Murlidhar and Shri Sada Nand appeared before the sub-divisional officer, statements of 5 persons were recorded and argument were heard and the case was directed to be put up for writing out the report on September 9, 1959. On this date the Sub-Divisional Officer wrote out the report and forwarded the papers to the Additional Jagir Commissioner. On October 1, 1959, the Additional Jagir Commissioner heard the arguments of the parties and pronounced his decision on October 5, 1959. The Board of Revenue has pointed out that under Rule 23 a date not less shall 2 months from the date of fee order should have been fixed for hearing of the case and published notice should have been served not only on the Jagirdar but also upon the Revenue Secretary to the Government and the Collector of the district. Rule 28 states that the mode of inquiry was that provided for the trial of a suit by a Revenue court. The Sub-Divisional Officer instead of following the rules fixed the date of hearing within a week of the receipt of the order and within further 5 days submitted his report without giving the notices under Rules 23 and 24 and without holding the enquiry in the manner prescribed by Rule 28.The Board of Revenue accordingly set aside the order of the Additional Jagir Commissioner dated October .5, l959 and remanded the case to him with the direction that he should hold the enquiry himself or may entrust the enquire under the provisions of section 23 (2) of the Act to a Subordinate Officer and that the enquiry must be holding either case in accordance with law and the case should be decided thereafter afresh. In our opinion the Board of Revenue was right in taking the view that the Additional Jagir Commissioner should have followed the procedure prescribed by the statutory rules and the High Court had no justification for setting aside the order of the Board of Revenue dated April 8, 1960 and of July 16, 196210. For the reasons expressed we hold that the order of the Rajasthan High Court dated October 7, 1963 quashing the orders of the Board of Revenue dated July 24, 1959, April 8, 1960 and July 16. 1962 should be set aside and Civil Writ Petition No. 482 of 1962 filed by the respondents should be dismissed. | 1 | 5,484 | 1,525 | ### 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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in the present case falls directly within the ambit of Section 23 of the Act and the Jagir Commissioner alone has the exclusive jurisdiction to determine that question. 8. It was objected on behalf of the respondents that, in any case, the question cannot be determined by the Jagir Commissioner after the resumption proceedings had come to an end. It was said that after the proceedings for resumption were completed under the Act and award of compensation has been made, there is no jurisdiction left in the Jagir Commissioner to proceed with an enquiry under Section 23 (2) of the Act. For the purpose of this case it is not necessary for us to express any opinion as to whether the Jagir Commissioner has jurisdiction to make an enquiry under Section 23 (2) of the Act after the proceedings for resumption have come to a close. It appears that in the present case the Director of Colonisation addressed a letter to the Divisional Commissioner, Bikaner on December 22, 1958 for review of his order dated November 30, 1958 and that he also requested that the matter should be referred to the Jagir Commissioner as he was the only competent authority to determine the nature of the disputed Property under Section 23 (2) of the Act. On receipt of this letter the Divisional Commissioner, Bikaner reviewed his previous order of November 30, 1958 and dismissed the objections of Director of Colonisation on March 5, 1959. It is admitted that the final award was made by the Additional Jagir Commissioner with regard to compensation on January 20, 1959. We shall assume in favour of the respondents that the proceedings for resumption came to a close on January 20, 1959. Even on that assumption the dispute was raised by the Director of Colonisation on December 22, 1958. long before the date of the final award on January 20, 1959 and the Jagir Commissioner had jurisdiction to proceed with the enquiry under section 23 (a) of the Act since the proceedings for resumption were still pending. We are accordingly of the opinion that Counsel for the respondents is unable to make good his argument on this aspect of the case. 9. We proceed to consider the next question arising in this case, viz., whether the High Court was in error in setting aside the orders of the Board of Revenue dated April 8, 1960 and July 16, l962. The Board of Revenue has pointed out that the decision of the Additional Jagir Commissioner dated October 5, 1959 was illegal since ho did not follow the procedure contemplated by Rules 23 and 26 of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 (hereinafter referred to as the Rules). It appears that by its previous order D/- July 24, 1959 the Board of Revenue had set aside the orders of the Divisional Commissioner dated November 30, 1958 and March 5, 1959 and the matter was remanded to him with the direction to refer the matter to the Jagir Commissioner and till the decision of the Jagir Commissioner was received entries in the records should stand as they stood prior to the impugned orders. In compliance with this decision the record was transmitted to the Sub-Divisional Officer, Ganganagar by the office of the Commissioner, Bikaner who in turn sent them on August 24, 1959 to the Sub-Divisional Officer, Raisinghnagar. The letter reached the Sub-Divisional Officer, Raisinghnagar on August 29, 1959 and on it the Sub-Divisional Officer wrote down the following order "Received today, inform the parties to appear before me on 5-9-59" It appears that on September 5 1959 Shri Murlidhar and Shri Sada Nand appeared before the sub-divisional officer, statements of 5 persons were recorded and argument were heard and the case was directed to be put up for writing out the report on September 9, 1959. On this date the Sub-Divisional Officer wrote out the report and forwarded the papers to the Additional Jagir Commissioner. On October 1, 1959, the Additional Jagir Commissioner heard the arguments of the parties and pronounced his decision on October 5, 1959. The Board of Revenue has pointed out that under Rule 23 a date not less shall 2 months from the date of fee order should have been fixed for hearing of the case and published notice should have been served not only on the Jagirdar but also upon the Revenue Secretary to the Government and the Collector of the district. Rule 28 states that the mode of inquiry was that provided for the trial of a suit by a Revenue court. The Sub-Divisional Officer instead of following the rules fixed the date of hearing within a week of the receipt of the order and within further 5 days submitted his report without giving the notices under Rules 23 and 24 and without holding the enquiry in the manner prescribed by Rule 28.The Board of Revenue accordingly set aside the order of the Additional Jagir Commissioner dated October .5, l959 and remanded the case to him with the direction that he should hold the enquiry himself or may entrust the enquire under the provisions of section 23 (2) of the Act to a Subordinate Officer and that the enquiry must be holding either case in accordance with law and the case should be decided thereafter afresh. In our opinion the Board of Revenue was right in taking the view that the Additional Jagir Commissioner should have followed the procedure prescribed by the statutory rules and the High Court had no justification for setting aside the order of the Board of Revenue dated April 8, 1960 and of July 16, 1962. 10. For the reasons expressed we hold that the order of the Rajasthan High Court dated October 7, 1963 quashing the orders of the Board of Revenue dated July 24, 1959, April 8, 1960 and July 16. 1962 should be set aside and Civil Writ Petition No. 482 of 1962 filed by the respondents should be dismissed.
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claimed by the Jagirdar as khudkasht for determination of the compensation to be paid and determining other questions which are incidental to the resumption of the Jagir land. On the other hand, Section 37 of the Act deals with questions of disputed titles and with regard to such a question the section makes a provision for enquiry either by the Jagir Commissioner or by a revenue authority under the Rajasthan Land Revenue Act, 1956. It is manifest that the scope of section 37 is quite different from that of Section 23 and the nature of the enquiry contemplated by the two sections also is different As we have already pointed out, the question arising in the present case falls directly within the ambit of Section 23 of the Act and the Jagir Commissioner alone has the exclusive jurisdiction to determine that questionFor the purpose of this case it is not necessary for us to express any opinion as to whether the Jagir Commissioner has jurisdiction to make an enquiry under Section 23 (2) of the Act after the proceedings for resumption have come to a close. It appears that in the present case the Director of Colonisation addressed a letter to the Divisional Commissioner, Bikaner on December 22, 1958 for review of his order dated November 30, 1958 and that he also requested that the matter should be referred to the Jagir Commissioner as he was the only competent authority to determine the nature of the disputed Property under Section 23 (2) of the Act. On receipt of this letter the Divisional Commissioner, Bikaner reviewed his previous order of November 30, 1958 and dismissed the objections of Director of Colonisation on March 5, 1959. It is admitted that the final award was made by the Additional Jagir Commissioner with regard to compensation on January 20, 1959. We shall assume in favour of the respondents that the proceedings for resumption came to a close on January 20, 1959. Even on that assumption the dispute was raised by the Director of Colonisation on December 22, 1958. long before the date of the final award on January 20, 1959 and the Jagir Commissioner had jurisdiction to proceed with the enquiry under section 23 (a) of the Act since the proceedings for resumption were still pending. We are accordingly of the opinion that Counsel for the respondents is unable to make good his argument on this aspect of the caseThe Board of Revenue has pointed out that the decision of the Additional Jagir Commissioner dated October 5, 1959 was illegal since ho did not follow the procedure contemplated by Rules 23 and 26 of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954 (hereinafter referred to as the Rules). It appears that by its previous order D/- July 24, 1959 the Board of Revenue had set aside the orders of the Divisional Commissioner dated November 30, 1958 and March 5, 1959 and the matter was remanded to him with the direction to refer the matter to the Jagir Commissioner and till the decision of the Jagir Commissioner was received entries in the records should stand as they stood prior to the impugned orders. In compliance with this decision the record was transmitted to the Sub-Divisional Officer, Ganganagar by the office of the Commissioner, Bikaner who in turn sent them on August 24, 1959 to the Sub-Divisional Officer, Raisinghnagar. The letter reached the Sub-Divisional Officer, Raisinghnagar on August 29, 1959 and on it the Sub-Divisional Officer wrote down the following order "Received today, inform the parties to appear before me on 5-9-59" It appears that on September 5 1959 Shri Murlidhar and Shri Sada Nand appeared before the sub-divisional officer, statements of 5 persons were recorded and argument were heard and the case was directed to be put up for writing out the report on September 9, 1959. On this date the Sub-Divisional Officer wrote out the report and forwarded the papers to the Additional Jagir Commissioner. On October 1, 1959, the Additional Jagir Commissioner heard the arguments of the parties and pronounced his decision on October 5, 1959. The Board of Revenue has pointed out that under Rule 23 a date not less shall 2 months from the date of fee order should have been fixed for hearing of the case and published notice should have been served not only on the Jagirdar but also upon the Revenue Secretary to the Government and the Collector of the district. Rule 28 states that the mode of inquiry was that provided for the trial of a suit by a Revenue court. The Sub-Divisional Officer instead of following the rules fixed the date of hearing within a week of the receipt of the order and within further 5 days submitted his report without giving the notices under Rules 23 and 24 and without holding the enquiry in the manner prescribed by Rule 28.The Board of Revenue accordingly set aside the order of the Additional Jagir Commissioner dated October .5, l959 and remanded the case to him with the direction that he should hold the enquiry himself or may entrust the enquire under the provisions of section 23 (2) of the Act to a Subordinate Officer and that the enquiry must be holding either case in accordance with law and the case should be decided thereafter afresh. In our opinion the Board of Revenue was right in taking the view that the Additional Jagir Commissioner should have followed the procedure prescribed by the statutory rules and the High Court had no justification for setting aside the order of the Board of Revenue dated April 8, 1960 and of July 16, 196210. For the reasons expressed we hold that the order of the Rajasthan High Court dated October 7, 1963 quashing the orders of the Board of Revenue dated July 24, 1959, April 8, 1960 and July 16. 1962 should be set aside and Civil Writ Petition No. 482 of 1962 filed by the respondents should be dismissed.
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Shree Vallabh Glass Works Limited Vs. State of Maharashtra and Others | it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List, it is not deemed to come within an entry in the Provincial List even though the classes of subjects looked at singly overlap in many respects. 10. In a later judgment, namely, (Sudhir Chandra v. Wealth-tax Officer, Calcutta)2, A.I.R. 1969 Supreme Court 59, the Supreme Court examined the same question in a different context. It held that levy of tax on capital value of non-agricultural lands and buildings was constitutional and was referable to Entry 86 in List I of the Seventh Schedule. The Supreme Court also held that legislation under the said Entry did not conflict with any legislation under Entry 49 of List II, Assuming that there is a conflict which was not capable of reconciliation, it was held that the power of the Parliament to legislate in respect of a matter which is exclusively entrusted to it must supersede pro tanto exercise of power of the State Legislature. 11. The overriding nature of the provisions contained in Clause (1) of Article 246 of the Constitution has been underlined again in (Kerala State Electricity Board v. Indian Aluminium Co.)3, A.I.R. 1976 Supreme Court 1031. The following to be found in paragraph 5 of the judgment ought to be noticed :---"The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) (leaving out for the moment the reference to clause (2) ). The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in clause (3) (again leaving out of consideration the provisions of clause (2) ). Now what is the meaning of the words not withstanding in clause (i) and "subject to" in clause (3) They mean that where an entry is in general terms in List II and part of that entry is in specific terms in list I, the entry in List I takes effect notwithstanding the entry in List II. This in also on the principle that the special exclude the general and the general entry in List II is subject to the special entry in List I."12. It is not disputed, and indeed it cannot be disputed, that the present Act has been passed by the Parliament in exercise of its legislative power contained in List I of the Seventh Schedule. If this is so, naturally the provisions in the Act cannot be controlled by any other Act that might have been passed by the State Legislature in exercise of its legislative power under List II of the Seventh Schedule of the Constitution. We have already held that the Act does not touch upon the powers of the Gram Panchayat to levy property tax. It only puts a restriction on the recovery proceedings that may be adopted for recovering the taxes when the Gram Panchayat may legally levy. Such a provision must be regarded as incidental to the main provision contained in the Act, namely the provision to nurse and bring back to health the sick industrial units. Even if it is held that such a provision interferes to some extent with the power of the Gram Panchayat as conferred by a valid piece of legislation enacted by the State, it must override the provisions of the State Act.13. It has then been argued by Mr. Gangal that what has been prohibited under sub-section (1) of section 22 is only the months that become due as a result of working out contracts and other transactions mentioned in sub-section (3) of section 22. According to him, it could not be the intention of the Parliament to stop the recovery of taxes which are imposed pursuant to the sovereign powers of the State. In the instant case, those powers have been delegated to the Gram Panchayat. The recovery of taxes is not, according to him, prohibited or restricted under sub-section (1) of section 22. 14. We have read, with his assistance, the provisions contained in sub-section (3) of section 22 along with sub-section (1). In our opinion what is mentioned in sub-section (3) or even its broad language does not control the provisions contained in sub-section (1) of section 22. Properly analysed, the provisions of section 22 show that in sub-section (1) recovery of claim which have become crystallised as due is arrested, while under sub-section (3), crystallisation of claims under instruments or transactions referred to therein is stopped. Even when there are settlements or awards, the Board has been given power to suspend the same, so that amounts payable under them do not become due. The contexts of the provisions in the two sub-section are different ; the stages at which they come into operation are also different. We disagree with Mr. Gangal when he says that the language of sub-section (3) of section 22 must be referred to in order to understand the nature of the recovery proceedings that are stopped or arrested under sub-section (1).15. In the affidavit of the Sarpanch, it has been mentioned that almost 80 per cent of the income of the Gram Panchayat in the instant case comes from the amount paid by the company by way of taxes. As a result of the embargo placed upon the recovery of the taxes due from the company by section 22(1) of the Act, all the activities of the Gram Panchayat will grind to a halt. If this is so, it is an unfortunate situation, but we cannot interpret the provisions of an Act with reference to hardship in a particular case. We may, however point out that it is open to the Gram Panchayat to obtain the consent of the Board to proceed with the recovery of the property taxes and other dues from the company. If such consent is obtained, then the embargo imposed by section 22(1) of the Act is lifted. | 1[ds]The validity of the Bombay Village Panchayats Act is not in question. It is an Act enacted by a competent Legislature and has received the assent of the President of India. Any Act of the Parliament which impinges upon the powers of the Gram Panchayat under a law which is valid will have to be read down so as to see that the powers of the Gram Panchayat to impose taxes on properties are not curtailed oris in exercise of this power that the Industries (Development and Regulation) Act has been passed and the industry being carried on by the company is an industry mentioned in the First Schedule to thatOne must proceed on the basis that the present Act has also been passed under this Item. After going through all the relevant provisions of this Act and in particular reading section 22 in its entirety, one must notice that section 22 or for that matter, any provision of the Act does not put any restriction on the power of the Gram Panchayat to impose taxes on properties under section 127 of the Bombay Village PanchayatsWhat is arrested under section 22 of the Act is the recovery by coercive procedure of any amount due by the company. The properties of the company shall not be proceeded against for satisfaction of any claim against the company. That is the provision in(1) of section 22 of theIt is therefore, clear that the power of the Gram Panchayat to impose taxes on properties under section 127 of the Bombay Village Panchayats Act remains totally unimpaired. It is only prohibited by the provisions of section 22(1) of the Act from proceeding against the properties of the Company while recovering the amounts due by way of property taxes.There is no question of examining the validity of the Bombay Village PanchayatsIt is a valid piece of legislation. The Bombay Village Panchayats Act has been passed by the then Bombay Legislature by exercising its powers in relation to Item 5 of list II of the Seventh Schedule of the Constitution of India. This item deals with the local Government, including authorities for the purpose of village administration. This should be sufficient for the purpose of holding that the Act passed by the Parliament does not impinge upon the powers conferred upon the Village Panchayats by an Act of the Legislature whose validity is not questioned.It is not disputed, and indeed it cannot be disputed, that the present Act has been passed by the Parliament in exercise of its legislative power contained in List I of the Seventh Schedule. If this is so, naturally the provisions in the Act cannot be controlled by any other Act that might have been passed by the State Legislature in exercise of its legislative power under List II of the Seventh Schedule of the Constitution. We have already held that the Act does not touch upon the powers of the Gram Panchayat to levy property tax. It only puts a restriction on the recovery proceedings that may be adopted for recovering the taxes when the Gram Panchayat may legally levy. Such a provision must be regarded as incidental to the main provision contained in the Act, namely the provision to nurse and bring back to health the sick industrial units. Even if it is held that such a provision interferes to some extent with the power of the Gram Panchayat as conferred by a valid piece of legislation enacted by the State, it must override the provisions of the Statethe instant case, those powers have been delegated to the Gram Panchayat. The recovery of taxes is not, according to him, prohibited or restricted under(1) of section 22.We have read, with his assistance, the provisions contained in(3) of section 22 along with(1). In our opinion what is mentioned in(3) or even its broad language does not control the provisions contained in(1) of section 22.Properly analysed, the provisions of section 22 show that in(1) recovery of claim which have become crystallised as due is arrested, while under(3), crystallisation of claims under instruments or transactions referred to therein is stopped. Even when there are settlements or awards, the Board has been given power to suspend the same, so that amounts payable under them do not become due. The contexts of the provisions in the twoare different ; the stages at which they come into operation are also different. We disagree with Mr. Gangal when he says that the language of(3) of section 22 must be referred to in order to understand the nature of the recovery proceedings that are stopped or arrested under(1).15. In the affidavit of the Sarpanch, it has been mentioned that almost 80 per cent of the income of the Gram Panchayat in the instant case comes from the amount paid by the company by way of taxes. As a result of the embargo placed upon the recovery of the taxes due from the company by section 22(1) of the Act, all the activities of the Gram Panchayat will grind to a halt. If this is so, it is an unfortunate situation, but we cannot interpret the provisions of an Act with reference to hardship in a particular case. We may, however point out that it is open to the Gram Panchayat to obtain the consent of the Board to proceed with the recovery of the property taxes and other dues from the company. If such consent is obtained, then the embargo imposed by section 22(1) of the Act is lifted. | 1 | 3,091 | 1,018 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List, it is not deemed to come within an entry in the Provincial List even though the classes of subjects looked at singly overlap in many respects. 10. In a later judgment, namely, (Sudhir Chandra v. Wealth-tax Officer, Calcutta)2, A.I.R. 1969 Supreme Court 59, the Supreme Court examined the same question in a different context. It held that levy of tax on capital value of non-agricultural lands and buildings was constitutional and was referable to Entry 86 in List I of the Seventh Schedule. The Supreme Court also held that legislation under the said Entry did not conflict with any legislation under Entry 49 of List II, Assuming that there is a conflict which was not capable of reconciliation, it was held that the power of the Parliament to legislate in respect of a matter which is exclusively entrusted to it must supersede pro tanto exercise of power of the State Legislature. 11. The overriding nature of the provisions contained in Clause (1) of Article 246 of the Constitution has been underlined again in (Kerala State Electricity Board v. Indian Aluminium Co.)3, A.I.R. 1976 Supreme Court 1031. The following to be found in paragraph 5 of the judgment ought to be noticed :---"The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) (leaving out for the moment the reference to clause (2) ). The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in clause (3) (again leaving out of consideration the provisions of clause (2) ). Now what is the meaning of the words not withstanding in clause (i) and "subject to" in clause (3) They mean that where an entry is in general terms in List II and part of that entry is in specific terms in list I, the entry in List I takes effect notwithstanding the entry in List II. This in also on the principle that the special exclude the general and the general entry in List II is subject to the special entry in List I."12. It is not disputed, and indeed it cannot be disputed, that the present Act has been passed by the Parliament in exercise of its legislative power contained in List I of the Seventh Schedule. If this is so, naturally the provisions in the Act cannot be controlled by any other Act that might have been passed by the State Legislature in exercise of its legislative power under List II of the Seventh Schedule of the Constitution. We have already held that the Act does not touch upon the powers of the Gram Panchayat to levy property tax. It only puts a restriction on the recovery proceedings that may be adopted for recovering the taxes when the Gram Panchayat may legally levy. Such a provision must be regarded as incidental to the main provision contained in the Act, namely the provision to nurse and bring back to health the sick industrial units. Even if it is held that such a provision interferes to some extent with the power of the Gram Panchayat as conferred by a valid piece of legislation enacted by the State, it must override the provisions of the State Act.13. It has then been argued by Mr. Gangal that what has been prohibited under sub-section (1) of section 22 is only the months that become due as a result of working out contracts and other transactions mentioned in sub-section (3) of section 22. According to him, it could not be the intention of the Parliament to stop the recovery of taxes which are imposed pursuant to the sovereign powers of the State. In the instant case, those powers have been delegated to the Gram Panchayat. The recovery of taxes is not, according to him, prohibited or restricted under sub-section (1) of section 22. 14. We have read, with his assistance, the provisions contained in sub-section (3) of section 22 along with sub-section (1). In our opinion what is mentioned in sub-section (3) or even its broad language does not control the provisions contained in sub-section (1) of section 22. Properly analysed, the provisions of section 22 show that in sub-section (1) recovery of claim which have become crystallised as due is arrested, while under sub-section (3), crystallisation of claims under instruments or transactions referred to therein is stopped. Even when there are settlements or awards, the Board has been given power to suspend the same, so that amounts payable under them do not become due. The contexts of the provisions in the two sub-section are different ; the stages at which they come into operation are also different. We disagree with Mr. Gangal when he says that the language of sub-section (3) of section 22 must be referred to in order to understand the nature of the recovery proceedings that are stopped or arrested under sub-section (1).15. In the affidavit of the Sarpanch, it has been mentioned that almost 80 per cent of the income of the Gram Panchayat in the instant case comes from the amount paid by the company by way of taxes. As a result of the embargo placed upon the recovery of the taxes due from the company by section 22(1) of the Act, all the activities of the Gram Panchayat will grind to a halt. If this is so, it is an unfortunate situation, but we cannot interpret the provisions of an Act with reference to hardship in a particular case. We may, however point out that it is open to the Gram Panchayat to obtain the consent of the Board to proceed with the recovery of the property taxes and other dues from the company. If such consent is obtained, then the embargo imposed by section 22(1) of the Act is lifted.
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The validity of the Bombay Village Panchayats Act is not in question. It is an Act enacted by a competent Legislature and has received the assent of the President of India. Any Act of the Parliament which impinges upon the powers of the Gram Panchayat under a law which is valid will have to be read down so as to see that the powers of the Gram Panchayat to impose taxes on properties are not curtailed oris in exercise of this power that the Industries (Development and Regulation) Act has been passed and the industry being carried on by the company is an industry mentioned in the First Schedule to thatOne must proceed on the basis that the present Act has also been passed under this Item. After going through all the relevant provisions of this Act and in particular reading section 22 in its entirety, one must notice that section 22 or for that matter, any provision of the Act does not put any restriction on the power of the Gram Panchayat to impose taxes on properties under section 127 of the Bombay Village PanchayatsWhat is arrested under section 22 of the Act is the recovery by coercive procedure of any amount due by the company. The properties of the company shall not be proceeded against for satisfaction of any claim against the company. That is the provision in(1) of section 22 of theIt is therefore, clear that the power of the Gram Panchayat to impose taxes on properties under section 127 of the Bombay Village Panchayats Act remains totally unimpaired. It is only prohibited by the provisions of section 22(1) of the Act from proceeding against the properties of the Company while recovering the amounts due by way of property taxes.There is no question of examining the validity of the Bombay Village PanchayatsIt is a valid piece of legislation. The Bombay Village Panchayats Act has been passed by the then Bombay Legislature by exercising its powers in relation to Item 5 of list II of the Seventh Schedule of the Constitution of India. This item deals with the local Government, including authorities for the purpose of village administration. This should be sufficient for the purpose of holding that the Act passed by the Parliament does not impinge upon the powers conferred upon the Village Panchayats by an Act of the Legislature whose validity is not questioned.It is not disputed, and indeed it cannot be disputed, that the present Act has been passed by the Parliament in exercise of its legislative power contained in List I of the Seventh Schedule. If this is so, naturally the provisions in the Act cannot be controlled by any other Act that might have been passed by the State Legislature in exercise of its legislative power under List II of the Seventh Schedule of the Constitution. We have already held that the Act does not touch upon the powers of the Gram Panchayat to levy property tax. It only puts a restriction on the recovery proceedings that may be adopted for recovering the taxes when the Gram Panchayat may legally levy. Such a provision must be regarded as incidental to the main provision contained in the Act, namely the provision to nurse and bring back to health the sick industrial units. Even if it is held that such a provision interferes to some extent with the power of the Gram Panchayat as conferred by a valid piece of legislation enacted by the State, it must override the provisions of the Statethe instant case, those powers have been delegated to the Gram Panchayat. The recovery of taxes is not, according to him, prohibited or restricted under(1) of section 22.We have read, with his assistance, the provisions contained in(3) of section 22 along with(1). In our opinion what is mentioned in(3) or even its broad language does not control the provisions contained in(1) of section 22.Properly analysed, the provisions of section 22 show that in(1) recovery of claim which have become crystallised as due is arrested, while under(3), crystallisation of claims under instruments or transactions referred to therein is stopped. Even when there are settlements or awards, the Board has been given power to suspend the same, so that amounts payable under them do not become due. The contexts of the provisions in the twoare different ; the stages at which they come into operation are also different. We disagree with Mr. Gangal when he says that the language of(3) of section 22 must be referred to in order to understand the nature of the recovery proceedings that are stopped or arrested under(1).15. In the affidavit of the Sarpanch, it has been mentioned that almost 80 per cent of the income of the Gram Panchayat in the instant case comes from the amount paid by the company by way of taxes. As a result of the embargo placed upon the recovery of the taxes due from the company by section 22(1) of the Act, all the activities of the Gram Panchayat will grind to a halt. If this is so, it is an unfortunate situation, but we cannot interpret the provisions of an Act with reference to hardship in a particular case. We may, however point out that it is open to the Gram Panchayat to obtain the consent of the Board to proceed with the recovery of the property taxes and other dues from the company. If such consent is obtained, then the embargo imposed by section 22(1) of the Act is lifted.
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ALEMBIC PHARMACEUTICALS LTD Vs. ROHIT PRAJAPATI & ORS | (I) v Union of India (2005) 11 SCC 559 . Fourth, though in the context of the facts of the case, this Court in Lafarge Umiam Mining Private Limited v Union of India (2011) 7 SCC 338 ( Lafarge) has upheld the decision to grant ex post facto clearances with respect to limestone mining projects in the State of Meghalaya. In Lafarge, the Court dealt with the question of whether ex post facto clearances stood vitiated by alleged suppression of the nature of the land by the project proponent and whether there was non-application of mind by the MoEF while granting the clearances. While upholding the ex post facto clearances, the Court held that the native tribals were involved in the decision-making process and that the MoEF had adopted a due diligence approach in reassuring itself through reports regarding the environmental impact of the project. Chief Justice SH Kapadia speaking for the three judge Bench observed: 119. The time has come for us to apply the constitutional doctrine of proportionality to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well- recognized principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of margin of appreciation in favour of the decision-maker would come into play. (Emphasis supplied) 37. After adverting to the decision in Lafarge, another Bench of three learned judges of this Court in Electrotherm (India) Limited v Patel Vipulkumar Ramjibhai (2016) 9 SCC 300, dealt with the issue of whether an EC granted for expansion to the appellant without holding a public hearing was valid in law. Justice Uday Umesh Lalit speaking for the Bench held thus: 19…the decision-making process in doing away with or in granting exemption from public consultation/public hearing, was not based on correct principles and as such the decision was invalid and improper. The Court while deciding the consequence of granting an EC without public hearing did not direct closure of the appellants unit and instead held thus: 20. At the same time, we cannot lose sight of the fact that in pursuance of environmental clearance dated 27-1-2010, the expansion of the project has been undertaken and as reported by CPCB in its affidavit filed on 7-7-2014, most of the recommendations made by CPCB are complied with. In our considered view, the interest of justice would be subserved if that part of the decision exempting public consultation/public hearing is set aside and the matter is relegated back to the authorities concerned to effectuate public consultation/public hearing. However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. If the public consultation/public hearing results in a negative mandate against the expansion of the project, the authorities would do well to direct and ensure scaling down of the activities to the level that was permitted by environmental clearance dated 20-2-2008. If public consultation/public hearing reflects in favour of the expansion of the project, environmental clearance dated 27-1-2010 would hold good and be fully operative. In other words, at this length of time when the expansion has already been undertaken, in the peculiar facts of this case and in order to meet ends of justice, we deem it appropriate to change the nature of requirement of public consultation/public hearing from pre-decisional to post-decisional. The public consultation/public hearing shall be organised by the authorities concerned in three months from today. (Emphasis supplied) 38. Guided by the precepts that emerge from the above decisions, this Court has taken note of the fact that though the three industries operated without an EC for several years after the EIA notification of 1994, each of them had subsequently received ECs including amended ECs for expansion of existing capacities. These ECs have been operational since 14 May 2003 (in the case of Alembic Pharmaceuticals Limited), 17 July 2003 (in the case of United Phosphorous Limited), and 23 December 2002 (in the case of Unique Chemicals Limited). In addition, all the three units have made infrastructural investments and employed significant numbers of workers in their industrial units. 39. In this backdrop, this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of the NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality. At the same time, the Court cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs. The three industries have evaded the legally binding regime of obtaining ECs. They cannot escape the liability incurred on account of such non- compliance. Penalties must be imposed for the disobedience with a binding legal regime. The breach by the industries cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment. | 1[ds]In the present case, to demonstrate that the NGT did not have the jurisdiction to strike down the circular dated 14 May 2002, it was urged that the circular was issued by the MoEF pursuant to its powers under Section 3 of the Environment Protection Act 1986. There is an inherent difficulty in accepting the submission. Before this Court, the Union of India has not pleaded the case that the circular dated 14 May 2002 is a measure which is traceable to the provisions of Section 321. The omission in the appeal to make any attempt to sustain the circular dated 14 May 2002 with reference to the provisions of Section 3 of the Environment Protection Act 1986 is significant. For an action of the Central government to be treated as a measure referable to Section 3 it must satisfy the statutory requirement of being necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution . The circular dated 14 May 2002 in fact does quite the contrary. It purported to allow an extension of time for industrial units to comply with the requirement of an EC. The EIA notification dated 27 January 1994 mandated that an EC has to be obtained before embarking on a new project or expanding or modernising an existing one. The EIA notification of 1994 has been issued under the provisions of the Environment Protection Act 1986 and the Environment Protection Rules 1986, with the object of imposing restrictions and prohibitions on setting up of new projects or expansion or modernisation of existing project. The measures are based on the precautionary principle and aim to protect the interests of the environment. The circular dated 14 May 2002 allowed defaulting industrial units who had commenced activities without an EC to cure the default by an ex post facto clearance. Being an administrative decision, it is beyond the scope of Section 3 and cannot be said to be a measure for the purpose of protecting and improving the quality of the environment. The circular notes that there were defaulting units which had failed to comply with the requirement of obtaining an EC as mandated. The circular provided for an extension of time and inexplicably introduced the notion of an ex post facto clearance. In effect, it impacted the obligation of the industrial units to be in compliance with the law. The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated 27 January 1994. The EIA notification of 1994 contained a stipulation that any expansion or modernisation of an activity or setting up of a new project listed in Schedule – I shall not be undertaken in any part of India unless it has been accorded environmental clearance. The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance. The words shall not be undertaken read in conjunction with the expression unless can only have one meaning : before undertaking a new project or expanding or modernising an existing one, an EC must be obtained. When the EIA notification of 1994 mandates a prior EC, it proscribes a post activity approval or an ex post facto permission. What is sought to be achieved by the administrative circular dated 14 May 2002 is contrary to the statutory notification dated 27 January 1994. The circular dated 14 May 2002 does not stipulate how the detrimental effects on the environment would be taken care of if the project proponent is granted an ex post facto EC. The EIA notification of 1994 mandates a prior environmental clearance. The circular substantially amends or alters the application of the EIA notification of 1994. The mandate of not commencing a new project or expanding or modernising an existing one unless an environmental clearance has been obtained stands diluted and is rendered ineffective by the issuance of the administrative circular dated 14 May 2002. This discussion leads us to the conclusion that the administrative circular is not a measure protected by Section 3. Hence there was no jurisdictional bar on the NGT to enquire into its legitimacy or vires. Moreover, the administrative circular is contrary to the EIA Notification 1994 which has a statutory character. The circular is unsustainable in lawWe are unable to accept the submission of Mr Kapil Sibal. The terms of the EIA notification dated 27 January 1994 leave no manner of doubt that a prior EC was mandated before a new project was commenced or before undertaking any expansion or modernisation of an existing project. The absence of the expression prior in the EIA notification dated 27 January 1994 makes no difference since the words shall not be undertaken…unless postulate the requirement of a prior ECThese measures adopted subsequently will not cure the failure to obtain ECs before the projects commenced operation. These measures are simply to ensure compliance with the pollution standards and requirements of law that exist as of date. These submissions have no bearing on determining whether the industrial units were in the past operating in compliance with the requisite environmental standards. These measures cannot act as correctives for historical wrongs and cannot compensate for the damage already caused to the environment as a result of manufacturing activities which were carried on without ECs28. Before the exemption contained in Clause 8 applies, it was necessary for projects listed in Schedule - I to obtain all relevant clearances from the State government including an NOC from the State Pollution Control Board. It was in other words not sufficient to merely obtain an NOC from the State Pollution Control Board. The exemption which was carved out in the explanatory note was to ensure that activities which had received all required clearances at the state level, following the acquisition of land should be protected. In fact, many of them would also involve the commencement of production prior to 27 January 1994. The explanatory note stated that where production had not yet commenced, the IAA would have to be intimated. In order to be covered within the scope of the exemption, the burden is on the industry to demonstrate before this Court that they fulfilled conditions spelt out in Clause 8 of the explanatory note. The EIA notification 1994 is a significant instrument in effectuating the implementation of the precautionary principle. The burden lies on the project proponent who seeks to alter the state of the environment or to impact on the environment to demonstrate that the terms on which an exemption has been granted have been fulfilled. An exemption must be construed in its strict sense according to its plain terms. None of the three industries before the Court have furnished an exhaustive catalogue of what were the relevant clearances from the State government that had to be obtained under the provisions of the law as it then stood(i) Darshak Private Limited (API - I)The material produced on the record indicates that on 17 July 1992, GPCB had issued an NOC to establish an industrial unit and manufacture two pharmaceuticals products. However, the NOC for manufacturing additional items was issued only on 11 June 1997 subsequent to the EIA notification dated 27 January 1994The language used in the NOC makes it clear that obtaining consents and authorisations under various environment related legislations was a mandatory pre-condition and not merely directory. In the present case, the authorisation under the Air Act was issued only on 29 May 1997 and 31 March 1999. The authorisation under the Water Act was issued on 11 October 1999. Clause 8 of the explanatory note states that for the exemption to apply, it was necessary for projects listed in Schedule - I to have obtained all relevant clearances from the State government including an NOC from the State Pollution Control Board. The evidence produced on the record by Darshak Private Limited indicates that it did not have the requisite consents and authorisations under the Air Act, Water Act and Hazardous Waste Rules prior to the EIA notification 1994. Many of the consents and permissions were obtained subsequently and not prior to the EIA notification of 1994. Accordingly, the manufacturing unit of Darshak Private Limited (API – I) is not covered under the exemption under Clause 8 to the explanatory note of the EIA notification of 1994(ii) Nirayu Private Limited (API – II)A factory license was issued on 12 July 1984 to API – II. On 24 May 1985, GPCB issued a water consent order under the Water Act. This was valid only for the manufacture of anaesthetic Ether. GPCB issued a site clearance certificate on 9 October 1991 for the manufacture of CIMC Chloride and Cloxacillin Sodium. An NOC to establish an industrial unit and to manufacture products was issued on 12 May 1993 and one for expansion on 4 December 1995. It is relevant to note that the NOC dated 12 May 1993 issued by GPCB to Nirayu Private Limited (API – II) is worded in exactly the same manner as the NOC dated 17 July 1992 issued to Darshak Private Limited (API – I). The NOC dated 12 May 1993 issued to Nirayu Private Limited (API – II) also mandates that the project proponent shall be required to obtain from the board prior to commencement of production requisite consents and authorisations under the Air Act, Water Act and Hazardous Waste Rules from GPCB. In the case of Nirayu Private Limited (API – II), authorisation under the Hazardous Waste Rules was issued on 1 September 1993. Consent to operate API – II under the Water Act was issued on 12 November 1999. GPCB issued consolidate consent and authorisation to operate API – II on 14 December 2010. From the above narration which is based on the disclosures made by Nirayu Private Limited, it is evident that all consents and permissions had not been obtained prior to the EIA notification of 1994. Accordingly, the manufacturing unit of Nirayu Private Limited (API – II) is not covered under the exemption under Clause 8 to the explanatory note of the EIA notification of 1994On 31 January 1992, Gujarat Industrial Development Corporation granted land to the appellant to establish and run its unit. On 9 March 1992 and 3 October 1992, GPCB issued an NOC for the operation of the unit. The unit commenced manufacturing in 1993. It is relevant to note that the NOC dated 3 October 1993 also mandates that the project proponent shall be required to obtain from the GPCB prior to commencement of production requisite consents and authorisations under the Air Act, Water Act and Hazardous Waste Rules. United Phosphorous Limited has not disclosed the dates on which it received authorisations under the relevant environmental legislation. It has placed on record a consolidated consent and authorisation that was issued much later on 27 August 2009 under the Air Act, Water Act and Hazardous Waste (Management, Handling and Trans boundary Movement) Rules 2008. The disclosures which have been made are patently incomplete. No material has been produced to indicate that all relevant clearances from the State government including the NOC from GPCB had been obtained prior to the EIA notification 1994. Accordingly, they cannot be granted the benefit of the exemption under Clause 8 to the explanatory note of the EIA notification of 1994The material produced on the record indicates that GPCB issued an NOC to establish and run the manufacturing unit on 14 August 1995. It is evident from the table enlisting the list of relevant permissions, consents and authorisations that all permissions were received after the EIA notification 1994 was issued. Clearly, Unique Chemicals Limited is not entitled to the benefit of the exemption contained in Clause 8 of the explanatory note to the EIA notification 199433. From the material placed on the record by the industries, it becomes evident that there has been a gross abdication of responsibility by all the three industries in terms of obtaining timely consents and authorisations from the GPCB. There exists a distinction between obtaining relevant clearances and consents from the State Pollution Control Board and obtaining an environmental clearance in accordance with the procedure laid down under the EIA notification of 1994. A consent order issued by the State Pollution Control Board allows an industry to operate within the prescribed emission norms. However, the consent orders do not account for the social cost and impact of undertaking an industrial activity on the environment and its surroundings. A holistic analysis of the environmental impact of an industrial activity is only accounted for once all the steps listed out in EIA notification of 1994 are followed. The purpose of setting in place specific requirements such as public hearing, screening, scoping and appraisal is to foster deliberative decisions and protect environmental concerns. The detailed process listed out in the EIA notification of 1994 for obtaining an EC allows for minimising the adverse environmental impact of any industrial activity and improving the quality of the environment. One must adopt an ecologically rational outlook towards development. Given the social and environmental impacts of an industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity34. We have therefore come to the conclusion that none of the three industries were entitled to the benefit of the exemption contained in Clause 8 of the explanatory note to the EIA notification of 1994The functioning of the factories of all three industries without a valid EC would have had an adverse impact on the environment, ecology and biodiversity in the area where they are located. The Comprehensive Environmental Pollution Index ( CEPI) report issued by the Central Pollution Control Board for 2009-2010 describes the environmental quality at 88 locations across the country. Ankleshwar in the State of Gujarat, where the three industries are located showed critical levels of pollution (CEPI score - 88.50 ) . In the Interim Assessment of CEPI for 2011, the report indicates similar critical figures (CEPI score - 85.75) of pollution in the Ankleshwar area. The CEPI scores for 2013 (CEPI score - 80.93 ) and 2018 (CEPI score - 80.21) were also significantly high. This is an indication that industrial units have been operating in an unregulated manner and in defiance of the law. Some of the environmental damage caused by the operation of the industrial units would be irreversible. However, to the extent possible some of the damage can be corrected by undertaking measures to protect and conserve the environment36. Even though it is not possible to individually determine the exact extent of the damage caused to the environment by the three industries, several circumstances must weigh with the Court in determining the appropriate measure of restitution. First, it is not in dispute that all the three industries did obtain ECs, though this was several years after the EIA notification of 1994 and the commencement of production. Second, subsequent to the grant of the ECs, the manufacturing units of all the three industries have also obtained ECs for an expansion of capacity from time to time. Third, the MoEF had issued a circular on 5 November 1998 permitting applications for ECs to be filed by 31 March 1999, which was extended subsequently to 30 June 2001. On 14 May 2002, the deadline was extended until 31 March 2003 subject to a deposit commensurate to the investment made. The circulars issued by the MoEF extending time for obtaining ECs came to the notice of this Court in Goa Foundation (I) v Union of India(2005) 11 SCC 559 . Fourth, though in the context of the facts of the case, this Court in Lafarge Umiam Mining Private Limited v Union of India(2011) 7 SCC 338 ( Lafarge) has upheld the decision to grant ex post facto clearances with respect to limestone mining projects in the State of Meghalaya38. Guided by the precepts that emerge from the above decisions, this Court has taken note of the fact that though the three industries operated without an EC for several years after the EIA notification of 1994, each of them had subsequently received ECs including amended ECs for expansion of existing capacities. These ECs have been operational since 14 May 2003 (in the case of Alembic Pharmaceuticals Limited), 17 July 2003 (in the case of United Phosphorous Limited), and 23 December 2002 (in the case of Unique Chemicals Limited). In addition, all the three units have made infrastructural investments and employed significant numbers of workers in their industrial units39. In this backdrop, this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of the NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality. At the same time, the Court cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs. The three industries have evaded the legally binding regime of obtaining ECs. They cannot escape the liability incurred on account of such non- compliance. Penalties must be imposed for the disobedience with a binding legal regime. The breach by the industries cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment. | 1 | 10,472 | 3,137 | ### 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:
(I) v Union of India (2005) 11 SCC 559 . Fourth, though in the context of the facts of the case, this Court in Lafarge Umiam Mining Private Limited v Union of India (2011) 7 SCC 338 ( Lafarge) has upheld the decision to grant ex post facto clearances with respect to limestone mining projects in the State of Meghalaya. In Lafarge, the Court dealt with the question of whether ex post facto clearances stood vitiated by alleged suppression of the nature of the land by the project proponent and whether there was non-application of mind by the MoEF while granting the clearances. While upholding the ex post facto clearances, the Court held that the native tribals were involved in the decision-making process and that the MoEF had adopted a due diligence approach in reassuring itself through reports regarding the environmental impact of the project. Chief Justice SH Kapadia speaking for the three judge Bench observed: 119. The time has come for us to apply the constitutional doctrine of proportionality to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well- recognized principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of margin of appreciation in favour of the decision-maker would come into play. (Emphasis supplied) 37. After adverting to the decision in Lafarge, another Bench of three learned judges of this Court in Electrotherm (India) Limited v Patel Vipulkumar Ramjibhai (2016) 9 SCC 300, dealt with the issue of whether an EC granted for expansion to the appellant without holding a public hearing was valid in law. Justice Uday Umesh Lalit speaking for the Bench held thus: 19…the decision-making process in doing away with or in granting exemption from public consultation/public hearing, was not based on correct principles and as such the decision was invalid and improper. The Court while deciding the consequence of granting an EC without public hearing did not direct closure of the appellants unit and instead held thus: 20. At the same time, we cannot lose sight of the fact that in pursuance of environmental clearance dated 27-1-2010, the expansion of the project has been undertaken and as reported by CPCB in its affidavit filed on 7-7-2014, most of the recommendations made by CPCB are complied with. In our considered view, the interest of justice would be subserved if that part of the decision exempting public consultation/public hearing is set aside and the matter is relegated back to the authorities concerned to effectuate public consultation/public hearing. However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. If the public consultation/public hearing results in a negative mandate against the expansion of the project, the authorities would do well to direct and ensure scaling down of the activities to the level that was permitted by environmental clearance dated 20-2-2008. If public consultation/public hearing reflects in favour of the expansion of the project, environmental clearance dated 27-1-2010 would hold good and be fully operative. In other words, at this length of time when the expansion has already been undertaken, in the peculiar facts of this case and in order to meet ends of justice, we deem it appropriate to change the nature of requirement of public consultation/public hearing from pre-decisional to post-decisional. The public consultation/public hearing shall be organised by the authorities concerned in three months from today. (Emphasis supplied) 38. Guided by the precepts that emerge from the above decisions, this Court has taken note of the fact that though the three industries operated without an EC for several years after the EIA notification of 1994, each of them had subsequently received ECs including amended ECs for expansion of existing capacities. These ECs have been operational since 14 May 2003 (in the case of Alembic Pharmaceuticals Limited), 17 July 2003 (in the case of United Phosphorous Limited), and 23 December 2002 (in the case of Unique Chemicals Limited). In addition, all the three units have made infrastructural investments and employed significant numbers of workers in their industrial units. 39. In this backdrop, this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of the NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality. At the same time, the Court cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs. The three industries have evaded the legally binding regime of obtaining ECs. They cannot escape the liability incurred on account of such non- compliance. Penalties must be imposed for the disobedience with a binding legal regime. The breach by the industries cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment.
### Response:
1
### Explanation:
manufacturing unit on 14 August 1995. It is evident from the table enlisting the list of relevant permissions, consents and authorisations that all permissions were received after the EIA notification 1994 was issued. Clearly, Unique Chemicals Limited is not entitled to the benefit of the exemption contained in Clause 8 of the explanatory note to the EIA notification 199433. From the material placed on the record by the industries, it becomes evident that there has been a gross abdication of responsibility by all the three industries in terms of obtaining timely consents and authorisations from the GPCB. There exists a distinction between obtaining relevant clearances and consents from the State Pollution Control Board and obtaining an environmental clearance in accordance with the procedure laid down under the EIA notification of 1994. A consent order issued by the State Pollution Control Board allows an industry to operate within the prescribed emission norms. However, the consent orders do not account for the social cost and impact of undertaking an industrial activity on the environment and its surroundings. A holistic analysis of the environmental impact of an industrial activity is only accounted for once all the steps listed out in EIA notification of 1994 are followed. The purpose of setting in place specific requirements such as public hearing, screening, scoping and appraisal is to foster deliberative decisions and protect environmental concerns. The detailed process listed out in the EIA notification of 1994 for obtaining an EC allows for minimising the adverse environmental impact of any industrial activity and improving the quality of the environment. One must adopt an ecologically rational outlook towards development. Given the social and environmental impacts of an industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity34. We have therefore come to the conclusion that none of the three industries were entitled to the benefit of the exemption contained in Clause 8 of the explanatory note to the EIA notification of 1994The functioning of the factories of all three industries without a valid EC would have had an adverse impact on the environment, ecology and biodiversity in the area where they are located. The Comprehensive Environmental Pollution Index ( CEPI) report issued by the Central Pollution Control Board for 2009-2010 describes the environmental quality at 88 locations across the country. Ankleshwar in the State of Gujarat, where the three industries are located showed critical levels of pollution (CEPI score - 88.50 ) . In the Interim Assessment of CEPI for 2011, the report indicates similar critical figures (CEPI score - 85.75) of pollution in the Ankleshwar area. The CEPI scores for 2013 (CEPI score - 80.93 ) and 2018 (CEPI score - 80.21) were also significantly high. This is an indication that industrial units have been operating in an unregulated manner and in defiance of the law. Some of the environmental damage caused by the operation of the industrial units would be irreversible. However, to the extent possible some of the damage can be corrected by undertaking measures to protect and conserve the environment36. Even though it is not possible to individually determine the exact extent of the damage caused to the environment by the three industries, several circumstances must weigh with the Court in determining the appropriate measure of restitution. First, it is not in dispute that all the three industries did obtain ECs, though this was several years after the EIA notification of 1994 and the commencement of production. Second, subsequent to the grant of the ECs, the manufacturing units of all the three industries have also obtained ECs for an expansion of capacity from time to time. Third, the MoEF had issued a circular on 5 November 1998 permitting applications for ECs to be filed by 31 March 1999, which was extended subsequently to 30 June 2001. On 14 May 2002, the deadline was extended until 31 March 2003 subject to a deposit commensurate to the investment made. The circulars issued by the MoEF extending time for obtaining ECs came to the notice of this Court in Goa Foundation (I) v Union of India(2005) 11 SCC 559 . Fourth, though in the context of the facts of the case, this Court in Lafarge Umiam Mining Private Limited v Union of India(2011) 7 SCC 338 ( Lafarge) has upheld the decision to grant ex post facto clearances with respect to limestone mining projects in the State of Meghalaya38. Guided by the precepts that emerge from the above decisions, this Court has taken note of the fact that though the three industries operated without an EC for several years after the EIA notification of 1994, each of them had subsequently received ECs including amended ECs for expansion of existing capacities. These ECs have been operational since 14 May 2003 (in the case of Alembic Pharmaceuticals Limited), 17 July 2003 (in the case of United Phosphorous Limited), and 23 December 2002 (in the case of Unique Chemicals Limited). In addition, all the three units have made infrastructural investments and employed significant numbers of workers in their industrial units39. In this backdrop, this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of the NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality. At the same time, the Court cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs. The three industries have evaded the legally binding regime of obtaining ECs. They cannot escape the liability incurred on account of such non- compliance. Penalties must be imposed for the disobedience with a binding legal regime. The breach by the industries cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment.
|
APSRTC Vs. SRI K. SATHAIAH | 6. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases. 7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case: (1) In cases where the appellate/revisional authority has directed re-engagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of reengagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date. (2) The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization. (3) There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination. (4) In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for re-engagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continuity of past service as under para(1) above. (5) In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012. (6) In cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct. 8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement. 9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service. 10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1[ds]In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases.7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted.8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement.9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1 | 1,625 | 657 | ### 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:
6. Mr. Gourab Banerji, learned senior counsel appearing on behalf of the appellants submits that there was a manifest error on the part of both the learned Single Judge and the Division Bench. In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases. 7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted. The learned Single Judge, issued the following directions in terms as agreed in that case: (1) In cases where the appellate/revisional authority has directed re-engagement of the contract employees as fresh employees, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of reengagement, except for the period during which they were absent, and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date. (2) The continuity of service so ordered in para (1) shall not, however, be counted for the purpose of seniority and shall not be allowed to affect the seniority of regularly working employees or for other benefits, but shall be counted only for the purpose of considering their cases for regularization. (3) There are also cases where the orders of termination are challenged, either before the appellate/revisional authorities or before this Court, after six or seven years of date of termination. In all such cases the benefit of continuity of service without any monetary benefit and re-engagement so ordered in para (1) shall be available to only to such of those employees who have approached the appellate/revisional authorities or this Court within three years from the date of termination. (4) In cases where appeals/revisions or writ petitions are filed after three years of the orders of termination, it is directed that the such petitioner/s shall be considered for re-engagement as fresh contract employee/s, subject to medical fitness and other formalities, but he/they shall not be entitled to continuity of past service as under para(1) above. (5) In cases where contract employees have preferred appeals/revisions, but no orders have been passed therein, the appellate/revisional authorities shall entertain and dispose of those appeals/revisions in the light of the directions referred to above, preferably on or before 31st March, 2012. (6) In cases where no enquiry was conducted, the respondent Corporation shall be free to conduct enquiry as per law into the allegations of unauthorised absence of its employees from duty or other allegations of misconduct. 8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement. 9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service. 10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
### Response:
1
### Explanation:
In the present case, a disciplinary enquiry was held against the workman after which an initial decision was taken to terminate him from service. In a departmental review, he was granted fresh appointment. Neither the termination nor the order granting him fresh appointment as a contract driver were challenged. As a matter of fact, it has also been submitted that in certain other cases, the workmen had taken recourse to proceedings before the Industrial Court but in the present case that was not done. Be that as it may, the learned Single Judge relied on the earlier decision and issued directions, to govern the entire batch of cases. This direction was confirmed by the Division Bench without having regard to the facts of individual cases.7. Since the order of the learned Single Judge in the present case, was exclusively based on the earlier decision dated 29.02.2012, a copy of that judgment has been placed on the record. The judgment of the Single Judge indicates that the earlier case also dealt with persons who were working as contract employees who were appointed after a regular selection. In some cases, termination orders were passed without an enquiry on allegations of misconduct while in other cases, an enquiry was conducted.8. In the present case, the workman did not choose to assail either the termination of his services following the enquiry or the fresh appointment. All that was sought was that he should have the benefit of continuity of service from the date of the earlier termination until re-engagement.9. Such a direction could not have been issued by the learned Single Judge without the termination being put into question. The grant of continuity was not sustainable for the simple reason that unless the order of termination and of the fresh appointment were challenged and adjudicated upon, seniority would necessarily have to count with effect from the date of the fresh appointment. As a matter of first principle, continuity can be granted when an order of termination is set aside, to ensure that there is no hiatus in service.10. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived.11. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct.12. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
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Batahari Jena Vs. State Of Orissa | Assistant Superintendent of Police in the erstwhile Patiala State on February 4, 1942 and confirmed in that rank on the occurrence of regular vacancy after undergoing practical district training courses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February, 1950 in the said State of Pepsu, was asked to show cause by notice dated March 25, 1963 as to why he should not be compulsorily retired. The petitioner complained that the notice issued to him was invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be constitutionally invalid. 9. Referring to Satish Chandra Anand v. The Union of India, 1953 SCR 585 = (AIR 1953 SC 250 ) and to certain dicta of the majority Judges in Moti Ram Deka, etc. v. The General Manager, North East Frontier Railway, etc., (1964) 5 SCR 683 = (AIR 1964 SC 600 ) this Court observed by way of explanation that:"....., the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Article 311 (2), this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by the relevant rules upheld by the earlier decisions was 25 years, it could not be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service after which alone the said rule could be invoked." The Court further observed (see p. 594) (of 1964-7 SCR) - (at p. 1589 of AIR 1964) that:"The safeguard which Article 311 (2) affords to permanent public servants is no more than this that in case it is intended to dismiss, remove or reduce them in rank, a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does not mean security of tenure for dishonest, corrupt, or inefficient public servants. The claim merely insists that before they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore, it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Article 311 (2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Article 311 (2) does not apply, because such retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311 (2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Article 311 (2). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is, in substance, removal under Article 311 (2)." 10. In our view the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Article 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably early. 11. Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Article 311 (2). 12. On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract. Article 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant. 13. | 0[ds]In our view the above contention cannot be accepted. Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the age of 55 years whether he had or had not put in thirty years qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he has not reached the age of fifty-five years correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years qualifying service to his credit. Fifty-five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was not unilateral. A Government servant was not bound to continue in service beyond the age of fifty-five years unless he wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked to retire in a case where he had completed thirty years service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reasonIn our view the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Article 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably earlyBefore May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Article 311 (2)On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract. Article 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant. | 0 | 2,499 | 625 | ### 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:
Assistant Superintendent of Police in the erstwhile Patiala State on February 4, 1942 and confirmed in that rank on the occurrence of regular vacancy after undergoing practical district training courses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February, 1950 in the said State of Pepsu, was asked to show cause by notice dated March 25, 1963 as to why he should not be compulsorily retired. The petitioner complained that the notice issued to him was invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be constitutionally invalid. 9. Referring to Satish Chandra Anand v. The Union of India, 1953 SCR 585 = (AIR 1953 SC 250 ) and to certain dicta of the majority Judges in Moti Ram Deka, etc. v. The General Manager, North East Frontier Railway, etc., (1964) 5 SCR 683 = (AIR 1964 SC 600 ) this Court observed by way of explanation that:"....., the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Article 311 (2), this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by the relevant rules upheld by the earlier decisions was 25 years, it could not be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service after which alone the said rule could be invoked." The Court further observed (see p. 594) (of 1964-7 SCR) - (at p. 1589 of AIR 1964) that:"The safeguard which Article 311 (2) affords to permanent public servants is no more than this that in case it is intended to dismiss, remove or reduce them in rank, a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does not mean security of tenure for dishonest, corrupt, or inefficient public servants. The claim merely insists that before they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore, it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Article 311 (2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Article 311 (2) does not apply, because such retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311 (2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Article 311 (2). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is, in substance, removal under Article 311 (2)." 10. In our view the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Article 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably early. 11. Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Article 311 (2). 12. On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract. Article 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant. 13.
### Response:
0
### Explanation:
In our view the above contention cannot be accepted. Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the age of 55 years whether he had or had not put in thirty years qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he has not reached the age of fifty-five years correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years qualifying service to his credit. Fifty-five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was not unilateral. A Government servant was not bound to continue in service beyond the age of fifty-five years unless he wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked to retire in a case where he had completed thirty years service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reasonIn our view the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Article 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably earlyBefore May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Article 311 (2)On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract. Article 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant.
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Dr.(Mrs.) Roshan Sam Boyee Vs. B.R. Cotton Mills Ltd. | therein. In the circumstances which we have already set out earlier, we are of the view that re- spondent no. 1 is guilty of misconduct amounting to contem pt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu- tion of the decree in favour of the appellant or otherwise. It is significant that the claim of sub-tenancy set up by respondent no. 2 is pursuant to an alleged resolution of respondent no. 1. We have also no doubt that respondent no. 2 was a party to this breach of the undertaking being com-mitted and, in fact, it was he at whose instance respondent no. 1 committed the breach of the undertaking as aforestat- ed. We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi-criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be str ictly complied with before any person can be committed for contempt. Howev- er, as we have pointed out, respondent no. 1 gave an under- taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 n o. 2. Respondent no. 2 was equally instrumental in the giving of this undertaking. This implication or assumption was made explicit by the clarification given by the learned counsel for respondent no. 1 as set out earlier. Respondent no. 2 was e qually responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2. Both respondent no. 1 and respondent no. 2 have tried to deceive the Court and the appellant. In view of t his, we fail to see how it can be said that they are not guilty of contempt. Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises. We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala v. Sh.K.M.M. Shetty and others, 1989 (4) JT 573 where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that"it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." *At the same time, we are conscious of the factthat we cannot altogether foreclose the claim set up by respondent no. 2 in the declaratory suit filed by him in the Court of Small Causes t o establish that he is a sub-tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947. However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her. All the necessary parties to that suit are before us and have had and adequate opportunity to be heard. In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already b een appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies. This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver. It is clarified that the possession of the prem- ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities. It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court. In the event of respondent no. 2 being able to finally estab- lish his right to the sub-tenancy of the suit premises asclai med by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised. Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20, 0 00 the liability for the payment of the said aggregate amount being joint and several as between respond- ents Nos. 1 and 2. As far as respondent no. 3 is concerned, we do not propose to take any action against him. | 1[ds]We find that under clause (1 ) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so pa ssed or order so made shall be enforced throughout the territory of India in the manner set out therein. In the circumstances which we have already set out earlier, we are of the view that re- spondent no. 1 is guilty of misconduct amounting to contem pt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu- tion of the decree in favour of the appellant or otherwise. It is significant that the claim of sub-tenancy set up by respondent no. 2 is pursuant to an alleged resolution of respondent no. 1. We have also no doubt that respondent no. 2 was a party to this breach of the undertaking being com-mitted and, in fact, it was he at whose instance respondent no. 1 committed the breach of the undertaking as aforestat- ed. We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi-criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be str ictly complied with before any person can be committed for contempt. Howev- er, as we have pointed out, respondent no. 1 gave an under- taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 n o. 2. Respondent no. 2 was equally instrumental in the giving of this undertaking. This implication or assumption was made explicit by the clarification given by the learned counsel for respondent no. 1 as set out earlier. Respondent no. 2 was e qually responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2. Both respondent no. 1 and respondent no. 2 have tried to deceive the Court and the appellant. In view of t his, we fail to see how it can be said that they are not guilty of contempt. Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises. We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala v. Sh.K.M.M. Shetty and others, 1989 (4) JT 573 where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that"it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." *At the same time, we are conscious of the factthat we cannot altogether foreclose the claim set up by respondent no. 2 in the declaratory suit filed by him in the Court of Small Causes t o establish that he is a sub-tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947. However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her. All the necessary parties to that suit are before us and have had and adequate opportunity to be heard. In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court | 1 | 5,315 | 815 | ### 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:
therein. In the circumstances which we have already set out earlier, we are of the view that re- spondent no. 1 is guilty of misconduct amounting to contem pt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu- tion of the decree in favour of the appellant or otherwise. It is significant that the claim of sub-tenancy set up by respondent no. 2 is pursuant to an alleged resolution of respondent no. 1. We have also no doubt that respondent no. 2 was a party to this breach of the undertaking being com-mitted and, in fact, it was he at whose instance respondent no. 1 committed the breach of the undertaking as aforestat- ed. We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi-criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be str ictly complied with before any person can be committed for contempt. Howev- er, as we have pointed out, respondent no. 1 gave an under- taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 n o. 2. Respondent no. 2 was equally instrumental in the giving of this undertaking. This implication or assumption was made explicit by the clarification given by the learned counsel for respondent no. 1 as set out earlier. Respondent no. 2 was e qually responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2. Both respondent no. 1 and respondent no. 2 have tried to deceive the Court and the appellant. In view of t his, we fail to see how it can be said that they are not guilty of contempt. Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises. We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala v. Sh.K.M.M. Shetty and others, 1989 (4) JT 573 where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that"it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." *At the same time, we are conscious of the factthat we cannot altogether foreclose the claim set up by respondent no. 2 in the declaratory suit filed by him in the Court of Small Causes t o establish that he is a sub-tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947. However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her. All the necessary parties to that suit are before us and have had and adequate opportunity to be heard. In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already b een appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies. This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver. It is clarified that the possession of the prem- ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities. It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court. In the event of respondent no. 2 being able to finally estab- lish his right to the sub-tenancy of the suit premises asclai med by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised. Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20, 0 00 the liability for the payment of the said aggregate amount being joint and several as between respond- ents Nos. 1 and 2. As far as respondent no. 3 is concerned, we do not propose to take any action against him.
### Response:
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### Explanation:
We find that under clause (1 ) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so pa ssed or order so made shall be enforced throughout the territory of India in the manner set out therein. In the circumstances which we have already set out earlier, we are of the view that re- spondent no. 1 is guilty of misconduct amounting to contem pt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu- tion of the decree in favour of the appellant or otherwise. It is significant that the claim of sub-tenancy set up by respondent no. 2 is pursuant to an alleged resolution of respondent no. 1. We have also no doubt that respondent no. 2 was a party to this breach of the undertaking being com-mitted and, in fact, it was he at whose instance respondent no. 1 committed the breach of the undertaking as aforestat- ed. We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi-criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be str ictly complied with before any person can be committed for contempt. Howev- er, as we have pointed out, respondent no. 1 gave an under- taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 n o. 2. Respondent no. 2 was equally instrumental in the giving of this undertaking. This implication or assumption was made explicit by the clarification given by the learned counsel for respondent no. 1 as set out earlier. Respondent no. 2 was e qually responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2. Both respondent no. 1 and respondent no. 2 have tried to deceive the Court and the appellant. In view of t his, we fail to see how it can be said that they are not guilty of contempt. Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises. We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala v. Sh.K.M.M. Shetty and others, 1989 (4) JT 573 where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that"it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." *At the same time, we are conscious of the factthat we cannot altogether foreclose the claim set up by respondent no. 2 in the declaratory suit filed by him in the Court of Small Causes t o establish that he is a sub-tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947. However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her. All the necessary parties to that suit are before us and have had and adequate opportunity to be heard. In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court
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Prashanti Medical Services and Research Foundation Vs. Union of India (UOI) and Ors | the National Committee.19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court.20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-2018.21. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project.22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-2018.23. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-2017.24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.2017.25. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here.26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively.27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period.28. It was, however, stated by the learned Counsel for the Appellant that the Appellant has received 3.84 crores during the year 2017-2018 from various Assessees. It was also stated that if sub-section (7) had been held not applicable to the Appellants project then the Appellant would have received much more amount than Rs. 3.84 crores during the financial year 2017-2018, which is clear from the amount received by the Appellant in earlier two years prior to insertion of Sub-section (7), i.e., Rs. 10.97 crores during the financial year 2015-2016 and Rs. 20.55 crores during the financial year 2016-2017.29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning.30. Learned Counsel for the Appellant then urged that having regard to the fact that the Appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017-2018, this Court may consider appropriate to invoke powers Under Article 142 of the Constitution and allow the Appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors.31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest there.32. Learned Counsel for the Appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT v. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0[ds]17. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-201823. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-201724. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.201725. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest thereIn our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0 | 3,854 | 920 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the National Committee.19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court.20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-2018.21. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project.22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-2018.23. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-2017.24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.2017.25. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here.26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively.27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period.28. It was, however, stated by the learned Counsel for the Appellant that the Appellant has received 3.84 crores during the year 2017-2018 from various Assessees. It was also stated that if sub-section (7) had been held not applicable to the Appellants project then the Appellant would have received much more amount than Rs. 3.84 crores during the financial year 2017-2018, which is clear from the amount received by the Appellant in earlier two years prior to insertion of Sub-section (7), i.e., Rs. 10.97 crores during the financial year 2015-2016 and Rs. 20.55 crores during the financial year 2016-2017.29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning.30. Learned Counsel for the Appellant then urged that having regard to the fact that the Appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017-2018, this Court may consider appropriate to invoke powers Under Article 142 of the Constitution and allow the Appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors.31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest there.32. Learned Counsel for the Appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT v. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
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17. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-201823. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-201724. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.201725. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest thereIn our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
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MD. ALI IMAM & ORS.ETC.ETC Vs. THE STATE OF BIHAR THR. ITS CHIEF SECRETARY & ORS | deficit, the Government makes up the deficit as a matter of assistance to education. It is in this background that the controversy has to be analyzed by us. 4. The story starts from 05.11.1980 when resolution No.1500 was passed by the Government of Bihar introducing the General Provident Fund-cum-pension-cum-gratuity benefit (Triple Benefit Scheme) which came into effect as on 01.04.1978. The Chancellor vide memo dated 18.11.1980 approved the statute for grant of benefit of Triple Benefit Scheme. The Amendment to the statute was made on 25.11.1982. 5. It was in the year 1998 that a representation was made requesting for the benefit of the Scheme to be extended to employees in such deficit colleges. This resulted in some communications and enquiry and it was only on 18.01.2011 that a resolution was passed extending the Triple Benefit Scheme to the deficit colleges. The relevant clauses of this which have been assailed in the present proceedings are as under: (i) xxx xxx (ii) This amendment statute will not be applicable to such teaching and non-teaching staffs who retired before the amendment of statute. (ii) xxx xxx (iii) xxx xxx (iv) xxx xxx (v) xxx xxx (vi) This scheme will be applicable from the date of amendment in statute. 6. We may note at this stage itself that the extension of the Scheme to the employees was in the nature of a benefit being extended to the employees, and did not form part of their original terms and conditions of employment. The Amendment came into being on 15.01.2014 but provided for a cut-off date of 31.08.2010. The rationale of this is stated to be that the Cabinet took the decision on that date, and thus, the Amendment was not made applicable from the date it was carried out but from a retrospective date, giving benefits for that period on the premise of the Cabinet decision, to those who were in service on that date. We may also note another aspect that all these resolutions and decisions have a financial implication and thus, some leeway has to be provided to the Government in deciding as to the extent to which they can make funds available and that too for such a beneficial aspect, keeping in mind these are not constituent unit colleges. 7. The endeavour of the appellant was not successful before the Division Bench of the Patna High Court which dismissed the writ petition filed by them vide impugned order dated 8.11.2017. 8. We have heard learned counsel for the parties at some length and the plea on behalf of the appellants is based on a discriminative practice and the cut-off dates being so provided, which according to the submissions of learned counsel for the appellant(s) are in violation of the principles of law laid down by this Court in D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305 . 9. On the other hand, learned counsel for the respondents have pointed out that much water flowed after that judgment and, inter alia, invited our attention to the judgment in State of West Bengal & Ors. v. Ratan Behari Dey & Ors.(1993) 4 SCC 62 (referred to in the impugned judgment itself) opining that it is open to the State or the Corporation to change the conditions of service unilaterally, and terminal benefits as well as pensionary benefits constitute conditions of service. Thus, the power to revise salaries and/or pay scales, as also terminal benefits/pensioners benefit can be made as a concomitant of that power so long as the date is specified in a reasonable manner. 10. If we see the rationale of the impugned judgment as set out para 29 onwards, we may notice that the same is predicated on the absence of arbitrariness in the applicability of the cut-off date of the amendment in the Triple Benefit Scheme statute as well as the rationality behind it based on the date of the Cabinet decision granting Triple Benefit Scheme to such deficit grant colleges. We cannot find any fault with the reasoning in the impugned order. 11. We must notice that firstly there was really no obligation for exercise of powers of the Government or University in the absence of the institutions being not constituent colleges, but only affiliated colleges. In order to support education, a decision was taken to provide deficit financing. There was again no requirement that the Triple Benefit Scheme ought to be extended to the employees of these colleges and was not so initially extended. A second step was taken in this direction by extending the scheme. The third step was the Amendment of the Scheme. It can hardly be said that by taking these beneficial steps, the State Government is not liable to take into consideration the financial implications of the same, and that the benefits should be extended across the board. The amendments could have, in fact, been implemented prospectively, but were given part-retrospective effect based on the rationale of the date of the Cabinet decision. 12. Apart from this, there may be other considerations in the mind of the Executive authority while fixing a particular date i.e. economic conditions, financial constraints, administrative and other circumstances, and if no reason is forthcoming from the executive for fixation of a particular date, it should not be interfered with by the Court unless the cut-off date leads to some blatantly capricious or outrageous result. In such cases it has been opined that there must be exercise of judicial restraint and such matters ought to be left to the Executive authorities, to fix the cut-off date, and the Government thus, must be left with some leeway and free play at the joints in this connection. Even if no particular reasons are given for the cut-off date by the Government, the choice of cut-off date cannot be held to be arbitrary (unless it is shown to be totally capricious or whimsical)- Government of Andhra Pradesh & Ors. v. N. Subbarayudu & Ors (2008) 14 SCC 702 . | 0[ds]10. If we see the rationale of the impugned judgment as set out para 29 onwards, we may notice that the same is predicated on the absence of arbitrariness in the applicability of the cut-off date of the amendment in the Triple Benefit Scheme statute as well as the rationality behind it based on the date of the Cabinet decision granting Triple Benefit Scheme to such deficit grant colleges. We cannot find any fault with the reasoning in the impugned order11. We must notice that firstly there was really no obligation for exercise of powers of the Government or University in the absence of the institutions being not constituent colleges, but only affiliated colleges. In order to support education, a decision was taken to provide deficit financing. There was again no requirement that the Triple Benefit Scheme ought to be extended to the employees of these colleges and was not so initially extended. A second step was taken in this direction by extending the scheme. The third step was the Amendment of the Scheme. It can hardly be said that by taking these beneficial steps, the State Government is not liable to take into consideration the financial implications of the same, and that the benefits should be extended across the board. The amendments could have, in fact, been implemented prospectively, but were given part-retrospective effect based on the rationale of the date of the Cabinet decision12. Apart from this, there may be other considerations in the mind of the Executive authority while fixing a particular date i.e. economic conditions, financial constraints, administrative and other circumstances, and if no reason is forthcoming from the executive for fixation of a particular date, it should not be interfered with by the Court unless the cut-off date leads to some blatantly capricious or outrageous result. In such cases it has been opined that there must be exercise of judicial restraint and such matters ought to be left to the Executive authorities, to fix the cut-off date, and the Government thus, must be left with some leeway and free play at the joints in this connection. Even if no particular reasons are given for the cut-off date by the Government, the choice of cut-off date cannot be held to be arbitrary (unless it is shown to be totally capricious or whimsical)- Government of Andhra Pradesh & Ors. v. N. Subbarayudu & Ors (2008) 14 SCC 702 . | 0 | 1,255 | 444 | ### Instruction:
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deficit, the Government makes up the deficit as a matter of assistance to education. It is in this background that the controversy has to be analyzed by us. 4. The story starts from 05.11.1980 when resolution No.1500 was passed by the Government of Bihar introducing the General Provident Fund-cum-pension-cum-gratuity benefit (Triple Benefit Scheme) which came into effect as on 01.04.1978. The Chancellor vide memo dated 18.11.1980 approved the statute for grant of benefit of Triple Benefit Scheme. The Amendment to the statute was made on 25.11.1982. 5. It was in the year 1998 that a representation was made requesting for the benefit of the Scheme to be extended to employees in such deficit colleges. This resulted in some communications and enquiry and it was only on 18.01.2011 that a resolution was passed extending the Triple Benefit Scheme to the deficit colleges. The relevant clauses of this which have been assailed in the present proceedings are as under: (i) xxx xxx (ii) This amendment statute will not be applicable to such teaching and non-teaching staffs who retired before the amendment of statute. (ii) xxx xxx (iii) xxx xxx (iv) xxx xxx (v) xxx xxx (vi) This scheme will be applicable from the date of amendment in statute. 6. We may note at this stage itself that the extension of the Scheme to the employees was in the nature of a benefit being extended to the employees, and did not form part of their original terms and conditions of employment. The Amendment came into being on 15.01.2014 but provided for a cut-off date of 31.08.2010. The rationale of this is stated to be that the Cabinet took the decision on that date, and thus, the Amendment was not made applicable from the date it was carried out but from a retrospective date, giving benefits for that period on the premise of the Cabinet decision, to those who were in service on that date. We may also note another aspect that all these resolutions and decisions have a financial implication and thus, some leeway has to be provided to the Government in deciding as to the extent to which they can make funds available and that too for such a beneficial aspect, keeping in mind these are not constituent unit colleges. 7. The endeavour of the appellant was not successful before the Division Bench of the Patna High Court which dismissed the writ petition filed by them vide impugned order dated 8.11.2017. 8. We have heard learned counsel for the parties at some length and the plea on behalf of the appellants is based on a discriminative practice and the cut-off dates being so provided, which according to the submissions of learned counsel for the appellant(s) are in violation of the principles of law laid down by this Court in D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305 . 9. On the other hand, learned counsel for the respondents have pointed out that much water flowed after that judgment and, inter alia, invited our attention to the judgment in State of West Bengal & Ors. v. Ratan Behari Dey & Ors.(1993) 4 SCC 62 (referred to in the impugned judgment itself) opining that it is open to the State or the Corporation to change the conditions of service unilaterally, and terminal benefits as well as pensionary benefits constitute conditions of service. Thus, the power to revise salaries and/or pay scales, as also terminal benefits/pensioners benefit can be made as a concomitant of that power so long as the date is specified in a reasonable manner. 10. If we see the rationale of the impugned judgment as set out para 29 onwards, we may notice that the same is predicated on the absence of arbitrariness in the applicability of the cut-off date of the amendment in the Triple Benefit Scheme statute as well as the rationality behind it based on the date of the Cabinet decision granting Triple Benefit Scheme to such deficit grant colleges. We cannot find any fault with the reasoning in the impugned order. 11. We must notice that firstly there was really no obligation for exercise of powers of the Government or University in the absence of the institutions being not constituent colleges, but only affiliated colleges. In order to support education, a decision was taken to provide deficit financing. There was again no requirement that the Triple Benefit Scheme ought to be extended to the employees of these colleges and was not so initially extended. A second step was taken in this direction by extending the scheme. The third step was the Amendment of the Scheme. It can hardly be said that by taking these beneficial steps, the State Government is not liable to take into consideration the financial implications of the same, and that the benefits should be extended across the board. The amendments could have, in fact, been implemented prospectively, but were given part-retrospective effect based on the rationale of the date of the Cabinet decision. 12. Apart from this, there may be other considerations in the mind of the Executive authority while fixing a particular date i.e. economic conditions, financial constraints, administrative and other circumstances, and if no reason is forthcoming from the executive for fixation of a particular date, it should not be interfered with by the Court unless the cut-off date leads to some blatantly capricious or outrageous result. In such cases it has been opined that there must be exercise of judicial restraint and such matters ought to be left to the Executive authorities, to fix the cut-off date, and the Government thus, must be left with some leeway and free play at the joints in this connection. Even if no particular reasons are given for the cut-off date by the Government, the choice of cut-off date cannot be held to be arbitrary (unless it is shown to be totally capricious or whimsical)- Government of Andhra Pradesh & Ors. v. N. Subbarayudu & Ors (2008) 14 SCC 702 .
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10. If we see the rationale of the impugned judgment as set out para 29 onwards, we may notice that the same is predicated on the absence of arbitrariness in the applicability of the cut-off date of the amendment in the Triple Benefit Scheme statute as well as the rationality behind it based on the date of the Cabinet decision granting Triple Benefit Scheme to such deficit grant colleges. We cannot find any fault with the reasoning in the impugned order11. We must notice that firstly there was really no obligation for exercise of powers of the Government or University in the absence of the institutions being not constituent colleges, but only affiliated colleges. In order to support education, a decision was taken to provide deficit financing. There was again no requirement that the Triple Benefit Scheme ought to be extended to the employees of these colleges and was not so initially extended. A second step was taken in this direction by extending the scheme. The third step was the Amendment of the Scheme. It can hardly be said that by taking these beneficial steps, the State Government is not liable to take into consideration the financial implications of the same, and that the benefits should be extended across the board. The amendments could have, in fact, been implemented prospectively, but were given part-retrospective effect based on the rationale of the date of the Cabinet decision12. Apart from this, there may be other considerations in the mind of the Executive authority while fixing a particular date i.e. economic conditions, financial constraints, administrative and other circumstances, and if no reason is forthcoming from the executive for fixation of a particular date, it should not be interfered with by the Court unless the cut-off date leads to some blatantly capricious or outrageous result. In such cases it has been opined that there must be exercise of judicial restraint and such matters ought to be left to the Executive authorities, to fix the cut-off date, and the Government thus, must be left with some leeway and free play at the joints in this connection. Even if no particular reasons are given for the cut-off date by the Government, the choice of cut-off date cannot be held to be arbitrary (unless it is shown to be totally capricious or whimsical)- Government of Andhra Pradesh & Ors. v. N. Subbarayudu & Ors (2008) 14 SCC 702 .
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M/S. Tungabhadra Industries Ltd Vs. The Commercial Tax Officer, Kurnool | it remains an oil-a glyceride of fatty acids-that it was when it issued out of the press. 18. In our opinion, the learned Judges of the High Court laid an undue emphasis on the addition by way of the absorption of the hydrogen atoms in the process of hardening and on the consequent inter-molecular changes in the oil. The addition of the hydrogen atoms was effected in order to saturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter-molecular changes necessarily affect the identity of a substance as ordinarily understood. Thus for instance there are absorptions of matter and inter-molecular changes which deteriorate the quality or utility of the oil and it might be interesting to see if such additions and alterations could be taken to render it any the less "oil". Groundnut oil when it issues out of the expresser normally contains a large proportion of unsaturated fatty acids-oleic and linoleic-which with other fatty acids which are saturated are in combination with glycerine to form the glyceride which is oil. The unsaturated fatty acids are unstable, i. e., they are subject to oxidative changes. When raw oil is exposed to air particularly if humid and warm, i. e., in a climate such as obtains in Madras, oxygen from the atmosphere is gradually absorbed by the unsaturated acid to form an unstable peroxide (in other words the change involves the addition of two atoms of oxygen) which in its turn decomposes breaking up into aldehydes. It is this oxidative change and particularly the conversion into aldehydes that is believed to be responsible for the sharp unpleasant odour, and the characteristic taste of rancid oil. If nothing were done to retard the process the rancidity may increase to such extent as to render it unfit for human consumption. The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil. 19. Both Tribunal as well as the High Court have pointed out that except for its keeping quality without rancidity and ease of packing and transport without leakage, hydrogenated oil serves the same purpose as a cooking medium and has identical food value as refined groundnut oil.There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used. Similarly we consider that hydrogenated oil still continues to be "groundnut oil" notwithstanding the processing which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil. In our opinion, the assessee-company was entitled to the benefit of the deduction of the purchase price of the kernel-or groundnut, under R. 18(2), which went into the manufacture of the hydrogenated groundnut oil from the sale turnover of such oil. 20. One other point which is involved in the appeal relates to the claim of the appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under R. 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer he is entitled to have deducted from his gross turnover "all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold : (i) freight; (ii) ................." 21. The appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the appellant, asserting that they had been charged for separately. The assessing-officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in Revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the appellants has placed before us, after setting out the quantity sold by weight (23,760 lb.) the price is specified as 15 annas-9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of R. 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight. 22. The result therefore is that the appeal is allowed in part and the order of the High Court in so far as it denied to the appellant the benefit of the deduction in the turnover provided by R. 18(2) of the Turnover and Assessment Rules is set aside. | 1[ds]11. The argument based on the reason of the rule cannot carry the appellant far, since in the present case it is an exemption from tax which he invokes and of which he seeks the benefit. If the words of the rule are insufficient to cover the case, the reason behind the rule cannot be availed of to obtain the relief. Nor could it be said to be a case of double taxation of the same goods at the purchase and sale points which is forbidden by S. 3(5) of the Act. If the view adopted by the learned Judges of the High Court that hydrogenated groundnut oil is not "groundnut oil" but a product of groundnut oil were correct, learned Counsel cannot urge that he would still be entitled to the deduction for which provision is made in R. 18(2)It is not known whether the proportion of 40 lb. of oil every 100 lb. of kernel represents the average weight of oil extractable from different varieties of groundnut kernels or is the average of the different types of oils which may be produced out of different varieties of kernels. In the absence of any definite data in this regard it is impossible to accept the argument that the Tables of Conversion justifies any particular construction of what was meant by "groundnut oil" in the main part of the ruleFor instance, if the oil as extracted were kept still in a vessel for a period of time, the sediment normally present in the oil would settle at the bottom leaving a clear liquid to be drawn out. The learned Advocate-General cannot go so far as to say, that if this physical process was gone through, the oil that was decanted from the sediment which it contained when it issues out of the expresser, ceased to be "groundnut oil" for the purposes of the rule. If the removal of impurities by a process of sedimentation does not render groundnut oil any the less so, it follows that even the process of refining, by the application of chemical methods for removing impurities in the oil, would not detract from the resulting oil being "groundnut oil" for the purpose of the rule. It may be mentioned that processes have been discovered by which even on extraction from the oil mill, the oil issues without any trace of free fatty acids. It could hardly be contended that if such processes were adopted what comes out of the expresser is not groundnut oil. The submission of the learned Advocate-General based on a contention that the Tribunal and the learned Judges of the High Court erred in holding that even refined groundnut oil was "groundnut oil" for the purpose of the rule, must be rejectedWe are unable to accept this argument. No doubt, several oils are normally viscous fluids, but they do harden and assume semisolid condition on the lowering of the temperature. Though groundnut oil is, at normal temperature, a viscous liquid, it assumes a semi-solid condition if kept for a long enough time in a refrigerator. It is therefore not correct to say that a liquid state is an essential characteristic of a vegetable oil and that if the oil is not liquid, it, ceases to be oil. Mowrah oil and Dhup oil are instances where vegetable oils assume a semi-sold state even at normal temperatures. Neither these, nor cocoanut oil which hardens naturally on even a slight fall in temperature, could be denied the name of oils because of their not being liquid. Other fats like ghee are instances where the physical state does not determine the identity of the commodityThis however is not decisive of the matter. The question that has still to be answered is whether hydrogenated oil continues even after the change to be "groundnut oil". If it is, it would be entitled to the benefit of the deduction from the turnover, or to put it slightly differently, the benefit of the deduction from the turnover cannot be denied, unless the hydrogenated groundnut oil has ceased to be "groundnut oil". To be groundnut oil, two conditions have to be satisfied. The oil in question must be from groundnut and secondly the commodity must be "oil". That the hydrogenated oil sold by the appellants was out of groundnut not being in dispute, the only point is whether it continues to be oil even after hydrogenation. Oil is a chemical compound of glycerin with fatty acids, or rather a glyceride of a mixture of fatty acids-principally oleic, linoleic, stearic and palmitic, the proportion of the particular fat varying in the case of the oil from different oil-seeds and it remains a glyceride of fatty acids even after the hardening process, though the relative proportion of the different types of fatty acids undergoes a slight change. In its essential nature therefore no change has occurred and it remains an oil-a glyceride of fatty acids-that it was when it issued out of the press8. In our opinion, the learned Judges of the High Court laid an undue emphasis on the addition by way of the absorption of the hydrogen atoms in the process of hardening and on the consequent inter-molecular changes in the oil. The addition of the hydrogen atoms was effected in order to saturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter-molecular changes necessarily affect the identity of a substance as ordinarily understood. Thus for instance there are absorptions of matter and inter-molecular changes which deteriorate the quality or utility of the oil and it might be interesting to see if such additions and alterations could be taken to render it any the less "oil". Groundnut oil when it issues out of the expresser normally contains a large proportion of unsaturated fatty acids-oleic and linoleic-which with other fatty acids which are saturated are in combination with glycerine to form the glyceride which is oil. The unsaturated fatty acids are unstable, i. e., they are subject to oxidative changes. When raw oil is exposed to air particularly if humid and warm, i. e., in a climate such as obtains in Madras, oxygen from the atmosphere is gradually absorbed by the unsaturated acid to form an unstable peroxide (in other words the change involves the addition of two atoms of oxygen) which in its turn decomposes breaking up into aldehydes. It is this oxidative change and particularly the conversion into aldehydes that is believed to be responsible for the sharp unpleasant odour, and the characteristic taste of rancid oil. If nothing were done to retard the process the rancidity may increase to such extent as to render it unfit for human consumption. The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil19. Both Tribunal as well as the High Court have pointed out that except for its keeping quality without rancidity and ease of packing and transport without leakage, hydrogenated oil serves the same purpose as a cooking medium and has identical food value as refined groundnut oil.There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used. Similarly we consider that hydrogenated oil still continues to be "groundnut oil" notwithstanding the processing which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil. In our opinion, the assessee-company was entitled to the benefit of the deduction of the purchase price of the kernel-or groundnut, under R. 18(2), which went into the manufacture of the hydrogenated groundnut oil from the sale turnover of such oilIt would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the appellants has placed before us, after setting out the quantity sold by weight (23,760 lb.) the price is specified as 15 annas-9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of R. 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight. | 1 | 4,583 | 1,768 | ### 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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it remains an oil-a glyceride of fatty acids-that it was when it issued out of the press. 18. In our opinion, the learned Judges of the High Court laid an undue emphasis on the addition by way of the absorption of the hydrogen atoms in the process of hardening and on the consequent inter-molecular changes in the oil. The addition of the hydrogen atoms was effected in order to saturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter-molecular changes necessarily affect the identity of a substance as ordinarily understood. Thus for instance there are absorptions of matter and inter-molecular changes which deteriorate the quality or utility of the oil and it might be interesting to see if such additions and alterations could be taken to render it any the less "oil". Groundnut oil when it issues out of the expresser normally contains a large proportion of unsaturated fatty acids-oleic and linoleic-which with other fatty acids which are saturated are in combination with glycerine to form the glyceride which is oil. The unsaturated fatty acids are unstable, i. e., they are subject to oxidative changes. When raw oil is exposed to air particularly if humid and warm, i. e., in a climate such as obtains in Madras, oxygen from the atmosphere is gradually absorbed by the unsaturated acid to form an unstable peroxide (in other words the change involves the addition of two atoms of oxygen) which in its turn decomposes breaking up into aldehydes. It is this oxidative change and particularly the conversion into aldehydes that is believed to be responsible for the sharp unpleasant odour, and the characteristic taste of rancid oil. If nothing were done to retard the process the rancidity may increase to such extent as to render it unfit for human consumption. The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil. 19. Both Tribunal as well as the High Court have pointed out that except for its keeping quality without rancidity and ease of packing and transport without leakage, hydrogenated oil serves the same purpose as a cooking medium and has identical food value as refined groundnut oil.There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used. Similarly we consider that hydrogenated oil still continues to be "groundnut oil" notwithstanding the processing which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil. In our opinion, the assessee-company was entitled to the benefit of the deduction of the purchase price of the kernel-or groundnut, under R. 18(2), which went into the manufacture of the hydrogenated groundnut oil from the sale turnover of such oil. 20. One other point which is involved in the appeal relates to the claim of the appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under R. 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer he is entitled to have deducted from his gross turnover "all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold : (i) freight; (ii) ................." 21. The appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the appellant, asserting that they had been charged for separately. The assessing-officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in Revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the appellants has placed before us, after setting out the quantity sold by weight (23,760 lb.) the price is specified as 15 annas-9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of R. 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight. 22. The result therefore is that the appeal is allowed in part and the order of the High Court in so far as it denied to the appellant the benefit of the deduction in the turnover provided by R. 18(2) of the Turnover and Assessment Rules is set aside.
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the matter. The question that has still to be answered is whether hydrogenated oil continues even after the change to be "groundnut oil". If it is, it would be entitled to the benefit of the deduction from the turnover, or to put it slightly differently, the benefit of the deduction from the turnover cannot be denied, unless the hydrogenated groundnut oil has ceased to be "groundnut oil". To be groundnut oil, two conditions have to be satisfied. The oil in question must be from groundnut and secondly the commodity must be "oil". That the hydrogenated oil sold by the appellants was out of groundnut not being in dispute, the only point is whether it continues to be oil even after hydrogenation. Oil is a chemical compound of glycerin with fatty acids, or rather a glyceride of a mixture of fatty acids-principally oleic, linoleic, stearic and palmitic, the proportion of the particular fat varying in the case of the oil from different oil-seeds and it remains a glyceride of fatty acids even after the hardening process, though the relative proportion of the different types of fatty acids undergoes a slight change. In its essential nature therefore no change has occurred and it remains an oil-a glyceride of fatty acids-that it was when it issued out of the press8. In our opinion, the learned Judges of the High Court laid an undue emphasis on the addition by way of the absorption of the hydrogen atoms in the process of hardening and on the consequent inter-molecular changes in the oil. The addition of the hydrogen atoms was effected in order to saturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter-molecular changes necessarily affect the identity of a substance as ordinarily understood. Thus for instance there are absorptions of matter and inter-molecular changes which deteriorate the quality or utility of the oil and it might be interesting to see if such additions and alterations could be taken to render it any the less "oil". Groundnut oil when it issues out of the expresser normally contains a large proportion of unsaturated fatty acids-oleic and linoleic-which with other fatty acids which are saturated are in combination with glycerine to form the glyceride which is oil. The unsaturated fatty acids are unstable, i. e., they are subject to oxidative changes. When raw oil is exposed to air particularly if humid and warm, i. e., in a climate such as obtains in Madras, oxygen from the atmosphere is gradually absorbed by the unsaturated acid to form an unstable peroxide (in other words the change involves the addition of two atoms of oxygen) which in its turn decomposes breaking up into aldehydes. It is this oxidative change and particularly the conversion into aldehydes that is believed to be responsible for the sharp unpleasant odour, and the characteristic taste of rancid oil. If nothing were done to retard the process the rancidity may increase to such extent as to render it unfit for human consumption. The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil19. Both Tribunal as well as the High Court have pointed out that except for its keeping quality without rancidity and ease of packing and transport without leakage, hydrogenated oil serves the same purpose as a cooking medium and has identical food value as refined groundnut oil.There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used. Similarly we consider that hydrogenated oil still continues to be "groundnut oil" notwithstanding the processing which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil. In our opinion, the assessee-company was entitled to the benefit of the deduction of the purchase price of the kernel-or groundnut, under R. 18(2), which went into the manufacture of the hydrogenated groundnut oil from the sale turnover of such oilIt would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the appellants has placed before us, after setting out the quantity sold by weight (23,760 lb.) the price is specified as 15 annas-9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of R. 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight.
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Rajinder Singh Chauhan Vs. State Of Haryana | services. The probation period will be 12 months for all the posts of Class I, II, III which may further be extended by such time as deemed fit, but in no case it will exceed 24 months, in all. The probation period for Class-IV shall be 6 months which may further be extended by such time as may be deemed fit but in no case total period of probation shall exceed 12 months. 4(c). "Temporary" employee means an employee who has been appointed for a limited period for work which is of an essentially temporary nature. 4(d). An "Apprentice" means a learner who is given a nominal stipend during the period which will ordinarily be of 6 months before he is taken up as a temporary employee. 4(e). Every employee shall be given a written order regarding his appointment, confirmation, promotion, transfer and ending of service as the case may be. Rule 10 (5): If the work and conduct of an employee during the period of probation is found satisfactory, he will be confirmed from the date of completion of the probation period. 10(6). No employee will be deemed to have been confirmed in the federation service unless specific orders in this regard are issued. The appointing authority shall have to take a decision regarding confirmation or reversion or removal of a probationer within the prescribed period of probation. 35(b). Confirmed employee shall be entitled to one months pay and allowance for every completed year of service. In addition to this, they will also be entitled to such pay and allowance as may be due to them on account of accumulated earned leave upto the maximum of one month. Rule 35(b) inter-alia provides that confirmed employees shall be entitled to one months pay and allowance for every completed year of service on retrenchment of service. In addition they are entitled to pay and allowance as may be admissible to them on account of accumulative earned leave upto the maximum of one month. 12. The stand of the respondents was that the appellants were not confirmed employees. The appointment order of each of the appellants contains the stipulations which are as follows: "1. Your appointment as Sales man is purely temporary.2. During the period of probation, your services are liable to be terminated without giving any notice or assigning any reason.3. You shall be governed by the terms and conditions contained in the Staff Service Rules of the Federation, amended from time to time." 13. This is a case where the period of probation is fixed having regard to Rule 4(b) read with Rule 10 as quoted above. Rule 10(6) no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their services. A similar stand was considered in Om Prakash Maurya v. U.P. Co- operative Sugar Factories Federation, Lucknow and Ors. (AIR 1986 SC 1844 ). A Constitution Bench of this Court in The State of Punjab v. Dharam Singh (AIR 1968 SC 1210 ) noted as follows: "Where as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." 14. In High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar (2001 (7) SCC 161 ), this Court categorised the provisions for probation as follows: "The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired." | 1[ds]9. Section 25-F appears in Chapter V-A of the Act which relates to lay-off and retrenchment. Section 25-K, L and N appear in Chapter V-B which relates to special provisions relating to lay-off, retrenchment and closure in certain establishments. In other words Chapter V-A deals with the general provisions relating to lay-off and retrenchment, while special provisions have been made for certain establishments covered by Chapter V-B. Section 25-N refers to workman in an industrial establishment. The expression "Industrial Establishment" is defined in Section 25-L, which means a factory or a mine or a plantation. Admittedly, the employer is not covered by the definition of the "Industrial Establishment". Therefore, the High Court was right in holding that Section 25-N has no application.This is a case where the period of probation is fixed having regard to Rule 4(b) read with Rule 10 as quoted above. Rule 10(6) no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their | 1 | 2,958 | 240 | ### 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:
services. The probation period will be 12 months for all the posts of Class I, II, III which may further be extended by such time as deemed fit, but in no case it will exceed 24 months, in all. The probation period for Class-IV shall be 6 months which may further be extended by such time as may be deemed fit but in no case total period of probation shall exceed 12 months. 4(c). "Temporary" employee means an employee who has been appointed for a limited period for work which is of an essentially temporary nature. 4(d). An "Apprentice" means a learner who is given a nominal stipend during the period which will ordinarily be of 6 months before he is taken up as a temporary employee. 4(e). Every employee shall be given a written order regarding his appointment, confirmation, promotion, transfer and ending of service as the case may be. Rule 10 (5): If the work and conduct of an employee during the period of probation is found satisfactory, he will be confirmed from the date of completion of the probation period. 10(6). No employee will be deemed to have been confirmed in the federation service unless specific orders in this regard are issued. The appointing authority shall have to take a decision regarding confirmation or reversion or removal of a probationer within the prescribed period of probation. 35(b). Confirmed employee shall be entitled to one months pay and allowance for every completed year of service. In addition to this, they will also be entitled to such pay and allowance as may be due to them on account of accumulated earned leave upto the maximum of one month. Rule 35(b) inter-alia provides that confirmed employees shall be entitled to one months pay and allowance for every completed year of service on retrenchment of service. In addition they are entitled to pay and allowance as may be admissible to them on account of accumulative earned leave upto the maximum of one month. 12. The stand of the respondents was that the appellants were not confirmed employees. The appointment order of each of the appellants contains the stipulations which are as follows: "1. Your appointment as Sales man is purely temporary.2. During the period of probation, your services are liable to be terminated without giving any notice or assigning any reason.3. You shall be governed by the terms and conditions contained in the Staff Service Rules of the Federation, amended from time to time." 13. This is a case where the period of probation is fixed having regard to Rule 4(b) read with Rule 10 as quoted above. Rule 10(6) no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their services. A similar stand was considered in Om Prakash Maurya v. U.P. Co- operative Sugar Factories Federation, Lucknow and Ors. (AIR 1986 SC 1844 ). A Constitution Bench of this Court in The State of Punjab v. Dharam Singh (AIR 1968 SC 1210 ) noted as follows: "Where as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in the post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." 14. In High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar (2001 (7) SCC 161 ), this Court categorised the provisions for probation as follows: "The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
### Response:
1
### Explanation:
9. Section 25-F appears in Chapter V-A of the Act which relates to lay-off and retrenchment. Section 25-K, L and N appear in Chapter V-B which relates to special provisions relating to lay-off, retrenchment and closure in certain establishments. In other words Chapter V-A deals with the general provisions relating to lay-off and retrenchment, while special provisions have been made for certain establishments covered by Chapter V-B. Section 25-N refers to workman in an industrial establishment. The expression "Industrial Establishment" is defined in Section 25-L, which means a factory or a mine or a plantation. Admittedly, the employer is not covered by the definition of the "Industrial Establishment". Therefore, the High Court was right in holding that Section 25-N has no application.This is a case where the period of probation is fixed having regard to Rule 4(b) read with Rule 10 as quoted above. Rule 10(6) no doubt provides that no employee shall be deemed to have been confirmed in the service unless specific order in this regard is issued. Relying on this provision, learned counsel for the fourth respondent submitted that there was no specific orders of confirmation and, therefore, the appellants should be deemed to have continued as probationers till the date of termination of their
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Afcons Infrastructure Ltd Vs. Nagpur Metro Rail Corporation Ltd. | Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) (2016(8) SCALE 99)it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 )it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India (1994) 6 SCC 651 )went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 )as mentioned in Central Coalfields.13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 ) was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous – they must be given meaning and their necessary significance. In this context, the use of the word ‘metro’ in Clause 4.2 (a) of Section III of the bid documents and its connotation n ordinary parlance cannot be overlooked.15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.17. Under the circumstances, we find merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration.18. Before we conclude, it is necessary to point out that the High Court was of opinion that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder GYT-TPL JV or were not entitled to be heard. With respect, this is not the appropriate view to take in matters such as the present. There are several reasons for this, one of them being that there could be occasions (as in the present appeals) where an eligible bidder could bring to the notice of the owner or employer of the project that the ineligible bidder was ineligible for additional reasons or reasons that were not within the contemplation of the owner or employer of the project. It was brought to our notice by Afcons Infrastructure in these appeals that GYT-TPL JV did not have any experience in the construction of a viaduct by the segmental construction method and that the translations of documents in Mandarin language filed in the High Court were not true English translations. Submissions made by learned counsel for Afcons Infrastructure in this regard are important and would have had a bearing on the decision in the writ petition filed in the High Court but since Afcons Infrastructure was not a party in the High Court, it could not agitate these issues in the writ petition but did so in the review petition which was not entertained. It is to avoid such a situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder.19. We make it clear that we have not considered the submissions of learned counsel for Afcons Infrastructure on the two issues of the segmental construction method and faulty translation of documents since they were not before the High Court and also because we do not find it necessary to adjudicate on them in the view that we have taken. | 1[ds]16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before thisfind merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration. | 1 | 2,639 | 146 | ### 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:
Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) (2016(8) SCALE 99)it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 )it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India (1994) 6 SCC 651 )went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 )as mentioned in Central Coalfields.13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 ) was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous – they must be given meaning and their necessary significance. In this context, the use of the word ‘metro’ in Clause 4.2 (a) of Section III of the bid documents and its connotation n ordinary parlance cannot be overlooked.15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.17. Under the circumstances, we find merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration.18. Before we conclude, it is necessary to point out that the High Court was of opinion that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder GYT-TPL JV or were not entitled to be heard. With respect, this is not the appropriate view to take in matters such as the present. There are several reasons for this, one of them being that there could be occasions (as in the present appeals) where an eligible bidder could bring to the notice of the owner or employer of the project that the ineligible bidder was ineligible for additional reasons or reasons that were not within the contemplation of the owner or employer of the project. It was brought to our notice by Afcons Infrastructure in these appeals that GYT-TPL JV did not have any experience in the construction of a viaduct by the segmental construction method and that the translations of documents in Mandarin language filed in the High Court were not true English translations. Submissions made by learned counsel for Afcons Infrastructure in this regard are important and would have had a bearing on the decision in the writ petition filed in the High Court but since Afcons Infrastructure was not a party in the High Court, it could not agitate these issues in the writ petition but did so in the review petition which was not entertained. It is to avoid such a situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder.19. We make it clear that we have not considered the submissions of learned counsel for Afcons Infrastructure on the two issues of the segmental construction method and faulty translation of documents since they were not before the High Court and also because we do not find it necessary to adjudicate on them in the view that we have taken.
### Response:
1
### Explanation:
16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before thisfind merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration.
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State of Uttar Pradesh and Others Vs. Indian Hume Pipe Company Limited | before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4, 5 and 6 of the counter-affidavit filed before the High Court. The materials consist of certificates by Local Self-Government, Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at page 34 of the paper book and shows that R.C.C. pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the department. From pages 36-39 and 41 of the paper book appear he certificates given by certain reputed dealers in sanitary goods and fittings, who have categorically certified that the hume pipes are never recognised as sanitary-wares or sanitary fittings. As against this, the State produced no materials to controvert these facts, which could not be brushed aside. At page 40 there is a certificate by the Executive Special Engineer, Bombay Municipal Corporation, and Executive Director, Central Public Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitary-wares and sanitary fittings are applicable to fittings used in the household for W.Cs., wash-basins, traps, sinks, etc., and, therefore, hume and R.C.C. pipes cannot be recognised as sanitary-wares or sanitary fittings. As against this, the State produced no material to controvert these facts.It is well-settled that when we are dealing with the articles used for business purposed, the terms must be interpreted in a purely commercial sense. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 at 288 (S.C.); [1962] 1 S.C.R. 279 at 282.), this Court, while construing the import of the word "vegetables", observed as follows :"But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of even day use it must be construed in its popular sense meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. It is to be construed as understood in common language." 2. To the same effect is a decision of the Exchequer Court of Canada in King v. Planters Nut and Chocolate Company Limited ((1951) C.L.R. (Ex. Court) 122 at 126.), where the court observed as followed :"The words fruit and vegetable are not defined in the Act and so far as I am aware they are not defined in any other Act in pari materia. They are ordinary words in every day use and are therefore to be construed according to their popular sense." 3. In these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the terms as it is used in our every day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or hume pipes, which are generally laid underground and are extremely heavy, for the purpose of use in lavatories, urinals or bath-rooms, etc. By "sanitary fittings" we only understand such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. Even where a hume pipe is used for carrying the secreted material from the commode to the septic tank that may be treated as sanitary fittings. In the instant case, as there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the sales tax authorities establishes that in a given case the hume pipes were meant for use in a bath-room, lavatory, urinal, etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7 per cent.Lastly, it was feebly argued by Mr. Manchanda that the High Court ought not to have entertained the writ petition and should have allowed the assessee to avail of he remedies provided to him under the U.P. Sales Tax Act, particularly when questions of fact had to be determined. In the instant case, the question as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and, in our opinion, rightly. In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under article 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct. We are, therefore, unable to accept this contention. 4. | 0[ds]In our opinion, the facts of this appeal lie within a very narrow compassIt is well-settled that when we are dealing with the articles used for business purposed, the terms must be interpreted in a purely commercial senseIn these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the terms as it is used in our every day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or hume pipes, which are generally laid underground and are extremely heavy, for the purpose of use in lavatories, urinals or bath-rooms, etc. By "sanitary fittings" we only understand such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. Even where a hume pipe is used for carrying the secreted material from the commode to the septic tank that may be treated as sanitary fittings. In the instant case, as there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the sales tax authorities establishes that in a given case the hume pipes were meant for use in a bath-room, lavatory, urinal, etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7 per centIn the instant case, the question as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and, in our opinion, rightly. In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under article 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct. We are, therefore, unable to accept this contention. | 0 | 1,821 | 586 | ### 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:
before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4, 5 and 6 of the counter-affidavit filed before the High Court. The materials consist of certificates by Local Self-Government, Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at page 34 of the paper book and shows that R.C.C. pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the department. From pages 36-39 and 41 of the paper book appear he certificates given by certain reputed dealers in sanitary goods and fittings, who have categorically certified that the hume pipes are never recognised as sanitary-wares or sanitary fittings. As against this, the State produced no materials to controvert these facts, which could not be brushed aside. At page 40 there is a certificate by the Executive Special Engineer, Bombay Municipal Corporation, and Executive Director, Central Public Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitary-wares and sanitary fittings are applicable to fittings used in the household for W.Cs., wash-basins, traps, sinks, etc., and, therefore, hume and R.C.C. pipes cannot be recognised as sanitary-wares or sanitary fittings. As against this, the State produced no material to controvert these facts.It is well-settled that when we are dealing with the articles used for business purposed, the terms must be interpreted in a purely commercial sense. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 at 288 (S.C.); [1962] 1 S.C.R. 279 at 282.), this Court, while construing the import of the word "vegetables", observed as follows :"But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of even day use it must be construed in its popular sense meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. It is to be construed as understood in common language." 2. To the same effect is a decision of the Exchequer Court of Canada in King v. Planters Nut and Chocolate Company Limited ((1951) C.L.R. (Ex. Court) 122 at 126.), where the court observed as followed :"The words fruit and vegetable are not defined in the Act and so far as I am aware they are not defined in any other Act in pari materia. They are ordinary words in every day use and are therefore to be construed according to their popular sense." 3. In these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the terms as it is used in our every day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or hume pipes, which are generally laid underground and are extremely heavy, for the purpose of use in lavatories, urinals or bath-rooms, etc. By "sanitary fittings" we only understand such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. Even where a hume pipe is used for carrying the secreted material from the commode to the septic tank that may be treated as sanitary fittings. In the instant case, as there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the sales tax authorities establishes that in a given case the hume pipes were meant for use in a bath-room, lavatory, urinal, etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7 per cent.Lastly, it was feebly argued by Mr. Manchanda that the High Court ought not to have entertained the writ petition and should have allowed the assessee to avail of he remedies provided to him under the U.P. Sales Tax Act, particularly when questions of fact had to be determined. In the instant case, the question as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and, in our opinion, rightly. In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under article 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct. We are, therefore, unable to accept this contention. 4.
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In our opinion, the facts of this appeal lie within a very narrow compassIt is well-settled that when we are dealing with the articles used for business purposed, the terms must be interpreted in a purely commercial senseIn these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the terms as it is used in our every day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or hume pipes, which are generally laid underground and are extremely heavy, for the purpose of use in lavatories, urinals or bath-rooms, etc. By "sanitary fittings" we only understand such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. Even where a hume pipe is used for carrying the secreted material from the commode to the septic tank that may be treated as sanitary fittings. In the instant case, as there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the sales tax authorities establishes that in a given case the hume pipes were meant for use in a bath-room, lavatory, urinal, etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7 per centIn the instant case, the question as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and, in our opinion, rightly. In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under article 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct. We are, therefore, unable to accept this contention.
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Employees State Insurance Corpn Vs. Distilleries&Chemical Maz.Union | the High Court and it would cause extreme and grave hardship to the employer if it is required to pay contribution for the past for no fault of its own. It is also submitted that no party should suffer because of the orders of the Court if duly complied with. 16. We see much force, substance and merit in the above submission of the learned senior counsel. It is further pertinent to see that the first interim order was passed by the High Court on 19.05.1986 and it was modified on the application of the respondent No.2 on 17.07.1987 and 09.03.1988. The interim orders were not challenged at all by the ESIC and were thus accepted. Despite the pendency of the matter for 17 years, the ESIC did not file any reply or counter affidavit in the writ petition nor filed any application for variation/vacation of the stay as stated in the special leave petition and in fact accepted the interim order. It was, thus, not disputed by the ESIC that the employees were not getting any medical facilities from ESIC and they were in fact getting medical facilities from the employer. 17. The High Court observed as follows:- "However, since there was an interim order of this court dated 19.05.1986 as modified on 17.07.1987, which directed that no deduction shall be made from the employer or employees towards contribution for E.S.I, and in fact E.S.I facility was not availed by the employees of respondent No. 3 hence in our opinion it would be unfair if the respondent No.3 and its employees are directed to pay contribution for the period when they never got this facility. Learned Counsel for respondent No.3 has stated that the respondent No.3 was giving medical relief to its employees on its own and no medical benefit was given by the E.S.I Corporation. Under these circumstances, we direct that no contribution shall be realized from the employer or employees till today towards E.S.I contribution, but from today onwards they will start paying E.S.I Contribution and employees may avail benefit of the E.S.I Scheme. With the above observation, this petition is disposed off finally." 18. In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, the order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India. 19. This apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI. 20. In our view, passing of the final order by the High Court directing the payment of ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in the various judgments referred to above. There has been no postponement of the enforcement of the notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the Union for 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc. and on account thereof also their contribution cannot be recovered. The judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of India. 21. The High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case. | 1[ds]In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, the order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of IndiaThis apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI.In our view, passing of the final order by the High Court directing the payment of ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in the various judgments referred to above. There has been no postponement of the enforcement of the notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the Union for 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc. and on account thereof also their contribution cannot be recovered. The judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of IndiaThe High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case. | 1 | 3,767 | 684 | ### Instruction:
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the High Court and it would cause extreme and grave hardship to the employer if it is required to pay contribution for the past for no fault of its own. It is also submitted that no party should suffer because of the orders of the Court if duly complied with. 16. We see much force, substance and merit in the above submission of the learned senior counsel. It is further pertinent to see that the first interim order was passed by the High Court on 19.05.1986 and it was modified on the application of the respondent No.2 on 17.07.1987 and 09.03.1988. The interim orders were not challenged at all by the ESIC and were thus accepted. Despite the pendency of the matter for 17 years, the ESIC did not file any reply or counter affidavit in the writ petition nor filed any application for variation/vacation of the stay as stated in the special leave petition and in fact accepted the interim order. It was, thus, not disputed by the ESIC that the employees were not getting any medical facilities from ESIC and they were in fact getting medical facilities from the employer. 17. The High Court observed as follows:- "However, since there was an interim order of this court dated 19.05.1986 as modified on 17.07.1987, which directed that no deduction shall be made from the employer or employees towards contribution for E.S.I, and in fact E.S.I facility was not availed by the employees of respondent No. 3 hence in our opinion it would be unfair if the respondent No.3 and its employees are directed to pay contribution for the period when they never got this facility. Learned Counsel for respondent No.3 has stated that the respondent No.3 was giving medical relief to its employees on its own and no medical benefit was given by the E.S.I Corporation. Under these circumstances, we direct that no contribution shall be realized from the employer or employees till today towards E.S.I contribution, but from today onwards they will start paying E.S.I Contribution and employees may avail benefit of the E.S.I Scheme. With the above observation, this petition is disposed off finally." 18. In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, the order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India. 19. This apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI. 20. In our view, passing of the final order by the High Court directing the payment of ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in the various judgments referred to above. There has been no postponement of the enforcement of the notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the Union for 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc. and on account thereof also their contribution cannot be recovered. The judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of India. 21. The High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case.
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### Explanation:
In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, the order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of IndiaThis apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI.In our view, passing of the final order by the High Court directing the payment of ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in the various judgments referred to above. There has been no postponement of the enforcement of the notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the Union for 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc. and on account thereof also their contribution cannot be recovered. The judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of IndiaThe High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case.
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Mahapalika Of City Of Agra Vs. Agra Brickkiln Owners' Association & Ors | law, but there was some continuity maintained. A certain ceiling on taxes on professions, trades, callings and employments had been set by Article 276 of the Constitution of India, but this maximum was not Rs. 50/- as in the Government of India Act, 1935 but Rs. 250/-. We may as well extract sub-clause (2) of Article 276, in this context :"276. Taxes on professions, trades, callings and employments. - (1) ........................................ (2) The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum; Provided that if the financial year immediately preceding the commencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments, the rate, or the maximum rate, of which exceeded two hundred and fifty rupees per annum, such tax may continue to be levied until provision to the contrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, Municipalities, Boards or authorities. (3) ..................................................... Inevitably, it follows that during the post-Constitution period nothing by way of taxes on trades or callings above the limit so set is recoverable and hence the maximum levy from each person under the notification issued under Act II of 1916 rises to Rs. 250/-." 7. A wee-bit twilit area of law, where the High Court has wobbled and gone wrong, if we may say so with respect, relates to the period after the U.P. Nagar Mahapalika Adhiniyam, 1959, came into force. The curious conclusion, the learned single Judge has reached, is that since that date i.e., February 1, 1960, there is to be a sudden drop in the maximum tax leviable under Section 172(2) of the Mahapalika Act to Rs. 50/- from Rs. 250/-, by a rather strained process of resuscitation of the Government of India Act, 1935. 8. We must accept the omnipotence of the Indian Constitution so far as all legislations are concerned, including the Municipal laws. Therefore, by the force of this paramountcy we have read down the notification Ex. H to limit the maximum contemplated by it to Rs. 250/- the ceiling set by Article 276 (2) of the Constitution. But, how can the ghost of the Government of India Act, which died long ago, revive to haunt the taxing laws of the Republic now and bring down the maximum limit from Rs. 250/- to Rs. 50/- ? The learned Judge himself felt that this seemed paradoxical, but thought that that is the effect of this express and categorical proviso. What is that proviso. The court had in mind the proviso to Section 172 of the Adhiniyam. 9. This view of the High Court stems from a simple misconstruction of the proviso to Section 172 of the Mahapalika Act. The said proviso operates as a saving clause affecting the whole section and may, for facility of making the point, clearly be read here :"172. ...................... Provided that where any tax was being lawfully levied in the area included in the City immediately before the commencement of the Constitution of India such tax may continue to be levied and applied for the purposes of this Act until provision to the contrary is made by Parliament." It is plain that such tax, in this proviso, relates to any tax under Section 172 and saves all species or classes of taxes and does not merely preserve the quantum or rate of such tax. It is typology, not the amount that is saved. So it follows that the category of tax on trade or calling is salvaged by the proviso and the notification Ex. H survives. It is clearly erroneous to hold that what is continued is the rate, not the description, of tax. Of course, if only the quantum of tax is kept alive on the wording of the proviso, what remains valid is only upto the maximum mentioned in Section 142 A of the Government of India Act, 1935. But if the class or species of tax is the correct connotation of the expression such tax and any tax - and we have no hesitation to hold that way in the context, setting and language used, the tax on trade or calling is saved. The rate is as fixed in Exhibit H. 10. This does not mean that anything beyond Rs. 250/- (the tax freeze under Article 276 (2)) can be levied. No. The constitutional maximum prevails as it covers all taxes on trade or calling even today. Therefore, until Parliament makes any other law, as contemplated in the proviso to Section 172 of the Adhiniyam, the maximum of Rs. 250/- binds. We have to read down the notification Exhibit H for the post-Constitution period, in tune and confirmity with the Constitution and uphold its validity to the extent of constitutional permissibility. 11. We may thus sum up our conclusion. The period before the Constitution of India came to be enacted, i.e., prior to January 26, 1950, will be governed by the maximum fixed by the 1935 Act and the Municipal Council of Agra will be entitled to collect tax on trade or calling at the rate fixed in Exhibit H, but subject to the maximum of Rs. 50/- per person as already explained. For the second period from the date of the Constitution up to the date of the Mahapalika Act II of 1959, the maximum leviable by way of tax on trade or calling by the Mahapalika will be Rs. 250/- per person. The post-Mahapalika Act period will also be controlled by the same constitutional maximum of Rs. 250/- per person, unless any supervening Parliamentary legislation, as contemplated by Section 172 of that Act, comes into being. | 1[ds]10. This does not mean that anything beyond Rs. 250/- (the tax freeze under Article 276 (2)) can be levied. No. The constitutional maximum prevails as it covers all taxes on trade or calling even today. Therefore, until Parliament makes any other law, as contemplated in the proviso to Section 172 of the Adhiniyam, the maximum of Rs. 250/- binds. We have to read down the notification Exhibit H for the post-Constitution period, in tune and confirmity with the Constitution and uphold its validity to the extent of constitutional permissibility11. We may thus sum up our conclusion. The period before the Constitution of India came to be enacted, i.e., prior to January 26, 1950, will be governed by the maximum fixed by the 1935 Act and the Municipal Council of Agra will be entitled to collect tax on trade or calling at the rate fixed in Exhibit H, but subject to the maximum of Rs. 50/- per person as already explained. For the second period from the date of the Constitution up to the date of the Mahapalika Act II of 1959, the maximum leviable by way of tax on trade or calling by the Mahapalika will be Rs. 250/- per person. The post-Mahapalika Act period will also be controlled by the same constitutional maximum of Rs. 250/- per person, unless any supervening Parliamentary legislation, as contemplated by Section 172 of that Act, comes into being. | 1 | 1,996 | 272 | ### Instruction:
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law, but there was some continuity maintained. A certain ceiling on taxes on professions, trades, callings and employments had been set by Article 276 of the Constitution of India, but this maximum was not Rs. 50/- as in the Government of India Act, 1935 but Rs. 250/-. We may as well extract sub-clause (2) of Article 276, in this context :"276. Taxes on professions, trades, callings and employments. - (1) ........................................ (2) The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum; Provided that if the financial year immediately preceding the commencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments, the rate, or the maximum rate, of which exceeded two hundred and fifty rupees per annum, such tax may continue to be levied until provision to the contrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, Municipalities, Boards or authorities. (3) ..................................................... Inevitably, it follows that during the post-Constitution period nothing by way of taxes on trades or callings above the limit so set is recoverable and hence the maximum levy from each person under the notification issued under Act II of 1916 rises to Rs. 250/-." 7. A wee-bit twilit area of law, where the High Court has wobbled and gone wrong, if we may say so with respect, relates to the period after the U.P. Nagar Mahapalika Adhiniyam, 1959, came into force. The curious conclusion, the learned single Judge has reached, is that since that date i.e., February 1, 1960, there is to be a sudden drop in the maximum tax leviable under Section 172(2) of the Mahapalika Act to Rs. 50/- from Rs. 250/-, by a rather strained process of resuscitation of the Government of India Act, 1935. 8. We must accept the omnipotence of the Indian Constitution so far as all legislations are concerned, including the Municipal laws. Therefore, by the force of this paramountcy we have read down the notification Ex. H to limit the maximum contemplated by it to Rs. 250/- the ceiling set by Article 276 (2) of the Constitution. But, how can the ghost of the Government of India Act, which died long ago, revive to haunt the taxing laws of the Republic now and bring down the maximum limit from Rs. 250/- to Rs. 50/- ? The learned Judge himself felt that this seemed paradoxical, but thought that that is the effect of this express and categorical proviso. What is that proviso. The court had in mind the proviso to Section 172 of the Adhiniyam. 9. This view of the High Court stems from a simple misconstruction of the proviso to Section 172 of the Mahapalika Act. The said proviso operates as a saving clause affecting the whole section and may, for facility of making the point, clearly be read here :"172. ...................... Provided that where any tax was being lawfully levied in the area included in the City immediately before the commencement of the Constitution of India such tax may continue to be levied and applied for the purposes of this Act until provision to the contrary is made by Parliament." It is plain that such tax, in this proviso, relates to any tax under Section 172 and saves all species or classes of taxes and does not merely preserve the quantum or rate of such tax. It is typology, not the amount that is saved. So it follows that the category of tax on trade or calling is salvaged by the proviso and the notification Ex. H survives. It is clearly erroneous to hold that what is continued is the rate, not the description, of tax. Of course, if only the quantum of tax is kept alive on the wording of the proviso, what remains valid is only upto the maximum mentioned in Section 142 A of the Government of India Act, 1935. But if the class or species of tax is the correct connotation of the expression such tax and any tax - and we have no hesitation to hold that way in the context, setting and language used, the tax on trade or calling is saved. The rate is as fixed in Exhibit H. 10. This does not mean that anything beyond Rs. 250/- (the tax freeze under Article 276 (2)) can be levied. No. The constitutional maximum prevails as it covers all taxes on trade or calling even today. Therefore, until Parliament makes any other law, as contemplated in the proviso to Section 172 of the Adhiniyam, the maximum of Rs. 250/- binds. We have to read down the notification Exhibit H for the post-Constitution period, in tune and confirmity with the Constitution and uphold its validity to the extent of constitutional permissibility. 11. We may thus sum up our conclusion. The period before the Constitution of India came to be enacted, i.e., prior to January 26, 1950, will be governed by the maximum fixed by the 1935 Act and the Municipal Council of Agra will be entitled to collect tax on trade or calling at the rate fixed in Exhibit H, but subject to the maximum of Rs. 50/- per person as already explained. For the second period from the date of the Constitution up to the date of the Mahapalika Act II of 1959, the maximum leviable by way of tax on trade or calling by the Mahapalika will be Rs. 250/- per person. The post-Mahapalika Act period will also be controlled by the same constitutional maximum of Rs. 250/- per person, unless any supervening Parliamentary legislation, as contemplated by Section 172 of that Act, comes into being.
### Response:
1
### Explanation:
10. This does not mean that anything beyond Rs. 250/- (the tax freeze under Article 276 (2)) can be levied. No. The constitutional maximum prevails as it covers all taxes on trade or calling even today. Therefore, until Parliament makes any other law, as contemplated in the proviso to Section 172 of the Adhiniyam, the maximum of Rs. 250/- binds. We have to read down the notification Exhibit H for the post-Constitution period, in tune and confirmity with the Constitution and uphold its validity to the extent of constitutional permissibility11. We may thus sum up our conclusion. The period before the Constitution of India came to be enacted, i.e., prior to January 26, 1950, will be governed by the maximum fixed by the 1935 Act and the Municipal Council of Agra will be entitled to collect tax on trade or calling at the rate fixed in Exhibit H, but subject to the maximum of Rs. 50/- per person as already explained. For the second period from the date of the Constitution up to the date of the Mahapalika Act II of 1959, the maximum leviable by way of tax on trade or calling by the Mahapalika will be Rs. 250/- per person. The post-Mahapalika Act period will also be controlled by the same constitutional maximum of Rs. 250/- per person, unless any supervening Parliamentary legislation, as contemplated by Section 172 of that Act, comes into being.
|
Steel Authority Of India Ltd Vs. Union Of India | by mutual agreement. A settlement or an award in terms of Section 18(3)(b) of the 1947 Act is binding on all workmen including those who may be employed in future. 29. What assumes importance is the ultimate goal where for the 1947 Act was enacted, namely, industrial peace and harmony. Industrial peace and harmony is the ultimate pursuit of the said Act, having regard to the underlying philosophy involved therein. The issue before us is required to be determined keeping in view the purport and object of the 1947 Act. It is interesting to note that in Modi Spinning & Weaving Mills Company Ltd. & Another v. Ladha Ram & Co. [(1976) 4 SCC 320] , this Court opined that when an admission has been made in the pleadings, even an amendment thereof would not be permitted. 30. We are not oblivious of the decision of this Court in Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Another [AIR 1983 SC 462 = (1984) Supp. SCC 594], wherein it has been held that an admission made by a party can be withdrawn and/or explained away; but we may notice that subsequently a Division Bench of this Court distinguished the said decision in Heeralal v. Kalyan Mal and Others [(1998) 1 SCC 278] . 31. The effect of an admission in the context of Section 58 of the Indian Evidence Act has been considered by this Court in Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) through Lrs. and Others [(2005) 11 SCC 314] , wherein it was categorically held that judicial admissions by themselves can be made the foundations of the rights of the parties and admissions in the pleadings are admissible proprio vigore against the maker thereof. [See also Union of India v. Pramod Gupta (Dead) by Lrs. and Others [(2005) 12 SCC 1] . Recently this Court in Baldev Singh and Others etc. v. Manohar Singh & Another etc. [2006 (7) SCALE 517 ], held: "Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case." 32. While laying down the principle, this Court followed Modi Spinning & Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only.33. There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be, While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. | 1[ds]21. We may reiterate that neithernor the writ court could determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the Appropriate Government.22. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in sub-section (1) of Section 10 of the 1947 Act. A notification can be issued by an Appropriate Government prohibiting employment of contract labour if the factors enumerated in sub-section (2) of Section 10 of the 1970 Act are satisfied.23. When, however, a contention is raised that the contract entered into by and between the management and the contractor is a sham one, in view of the decision of this Court in Steel Authority of India Limited (supra), an industrial adjudicator would be entitled to determine the said issue. The industrial adjudicator would have jurisdiction to determine the said issue as in the event if it be held that the contract purportedly awarded by the management in favour of the contractor was really a camouflage or a sham one, the employees appointed by the contractor would, in effect and substance, be held to be direct employees of the management.While laying down the principle, this Court followed Modi Spinning & Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only.33. There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be, While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. | 1 | 4,541 | 621 | ### 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:
by mutual agreement. A settlement or an award in terms of Section 18(3)(b) of the 1947 Act is binding on all workmen including those who may be employed in future. 29. What assumes importance is the ultimate goal where for the 1947 Act was enacted, namely, industrial peace and harmony. Industrial peace and harmony is the ultimate pursuit of the said Act, having regard to the underlying philosophy involved therein. The issue before us is required to be determined keeping in view the purport and object of the 1947 Act. It is interesting to note that in Modi Spinning & Weaving Mills Company Ltd. & Another v. Ladha Ram & Co. [(1976) 4 SCC 320] , this Court opined that when an admission has been made in the pleadings, even an amendment thereof would not be permitted. 30. We are not oblivious of the decision of this Court in Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Another [AIR 1983 SC 462 = (1984) Supp. SCC 594], wherein it has been held that an admission made by a party can be withdrawn and/or explained away; but we may notice that subsequently a Division Bench of this Court distinguished the said decision in Heeralal v. Kalyan Mal and Others [(1998) 1 SCC 278] . 31. The effect of an admission in the context of Section 58 of the Indian Evidence Act has been considered by this Court in Sangramsinh P. Gaekwad and Others v. Shantadevi P. Gaekwad (Dead) through Lrs. and Others [(2005) 11 SCC 314] , wherein it was categorically held that judicial admissions by themselves can be made the foundations of the rights of the parties and admissions in the pleadings are admissible proprio vigore against the maker thereof. [See also Union of India v. Pramod Gupta (Dead) by Lrs. and Others [(2005) 12 SCC 1] . Recently this Court in Baldev Singh and Others etc. v. Manohar Singh & Another etc. [2006 (7) SCALE 517 ], held: "Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case." 32. While laying down the principle, this Court followed Modi Spinning & Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only.33. There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be, While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court.
### Response:
1
### Explanation:
21. We may reiterate that neithernor the writ court could determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the Appropriate Government.22. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in sub-section (1) of Section 10 of the 1947 Act. A notification can be issued by an Appropriate Government prohibiting employment of contract labour if the factors enumerated in sub-section (2) of Section 10 of the 1970 Act are satisfied.23. When, however, a contention is raised that the contract entered into by and between the management and the contractor is a sham one, in view of the decision of this Court in Steel Authority of India Limited (supra), an industrial adjudicator would be entitled to determine the said issue. The industrial adjudicator would have jurisdiction to determine the said issue as in the event if it be held that the contract purportedly awarded by the management in favour of the contractor was really a camouflage or a sham one, the employees appointed by the contractor would, in effect and substance, be held to be direct employees of the management.While laying down the principle, this Court followed Modi Spinning & Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only.33. There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be, While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court.
|
Ramesh Vs. State By Madhugiri Police | suspected that the informant had spoiled his sister. The informant as also the other persons present there apprehended the appellant and produced him before the Police and gave another report and accordingly Section 302 and 201 of the Indian Penal Code were added in Crime No.130 of 1994. After arrest by the Police, appellant gave a statement before the Police and pointed out the place where he had buried the child and on that information PW.6, Padmanabharaju Tahsildar and PW.9, Dr. Ramadas were summoned to the spot and the dead body was exhumed in their presence and the Panch witnesses. After usual investigation Police submitted charge-sheet against the appellant and he was ultimately committed to the Court of Session to face the trial where he was charged for the commission of the offence under Section 302 and 201 of the Indian Penal Code. Appellant denied to have committed any offence and claimed to be tried. In order to bring home the charge the prosecution had examined altogether 14 witnesses which included PW.1, Thotaramu and PW.2, Gowaramma, the father and the mother of the deceased as also PW.3, Sakamma and PW.4, Annapoornamma who had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The prosecution had also examined PW.5, H.S Nagaraju and PW.7, H.D. Ganganna before whom the appellant had made the extra judicial confession. Besides PW.9, Dr. Ramadas who had conducted the postmortem examination and Tehsildar PW.6, Pamanabharaju, in whose presence the dead body was exhumed were also examined.6. The trial court rejected the case of the prosecution that the appellant was last seen in the company of the deceased as also extra judicial confession and acquitted the appellant of both the charges. However, in appeal the High Court relied on the evidence of PW.3, Sakamma and PW.4, Annapoornamma and held that the deceased was last seen in the company of the appellant and further found that the appellant had made extra judicial confession before PW.5, H.D. Nagaraju and PW.7, H.D. Ganganna and accordingly set aside the order of acquittal and convicted the appellant as above.7. Mr. Rajesh Mahale, learned counsel appearing on behalf of the appellant submits that the view taken by the trial court being one of the possible views, the High Court in an appeal from the judgment of the acquittal ought not to have interfered with the same and converted the judgment of acquittal to that of conviction.8. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the respondent submits that the evidence on record clearly established that the appellant murdered the child and in order to conceal the crime buried him and that being the only possible view the High Court rightly interfered with the judgment of acquittal.9. It is trite that the High Court in appeal from the judgment of acquittal does not interfere with the same in case the view taken by the trial court is one of the possible views. It is equally well settled that the High Court in an appeal from the judgment of acquittal possesses the power to appraise the evidence and come to its own conclusion and can reverse the finding of acquittal to that of conviction if in its opinion the evidence on record proves the guilt of the accused. Bearing in mind the principle aforesaid, we proceed to examine the correctness of the impugned judgment. PW.3, Sakamma and PW.4, Annapoornamma are neighbours not only of the deceased but of the appellant also as it has come in their evidence that their houses are intervened by one or two houses of the informant and the appellant. They have clearly stated in their evidence that they had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The trial court has rejected this part of the prosecution story on the ground that these witnesses could not have identified the appellant in the evening as it is not the case of the prosecution that there was any light. As stated earlier appellant and these two witnesses are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatized to fluorescent-light. Visible capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meager light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidences clearly show that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.10. PW.5, H.S. Nagaraju and PW.6, Padmanabharaju have stated that on enquiry the appellant confessed that he had murdered the deceased as he suspected his father to have killed his uncles son and spoiled his sister. Nothing has been brought on record in the cross-examination to show that these two witnesses are in any way interested and inimical to the appellant. From their evidence it is evident that the appellant made the extra judicial confession, which is voluntary and further the appellant had motive to commit the crime. It is relevant here to state that after the appellant was brought to the Police Station he made a statement leading to the recovery of the dead body. The prosecution has thus proved beyond reasonable doubt that the deceased was last seen in the company of the appellant, he had made extra judicial confession and the dead body was recovered at the instance of the appellant. The chain of circumstances indicated above clearly point out the guilt of the appellant and in our opinion the High Court rightly held him guilty of the offence charged. | 0[ds]9. It is trite that the High Court in appeal from the judgment of acquittal does not interfere with the same in case the view taken by the trial court is one of the possible views. It is equally well settled that the High Court in an appeal from the judgment of acquittal possesses the power to appraise the evidence and come to its own conclusion and can reverse the finding of acquittal to that of conviction if in its opinion the evidence on record proves the guilt of the accused. Bearing in mind the principle aforesaid, we proceed to examine the correctness of the impugned judgment. PW.3, Sakamma and PW.4, Annapoornamma are neighbours not only of the deceased but of the appellant also as it has come in their evidence that their houses are intervened by one or two houses of the informant and the appellant. They have clearly stated in their evidence that they had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The trial court has rejected this part of the prosecution story on the ground that these witnesses could not have identified the appellant in the evening as it is not the case of the prosecution that there was any light. As stated earlier appellant and these two witnesses are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatized toVisible capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meager light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidences clearly show that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.10. PW.5, H.S. Nagaraju and PW.6, Padmanabharaju have stated that on enquiry the appellant confessed that he had murdered the deceased as he suspected his father to have killed his uncles son and spoiled his sister. Nothing has been brought on record in theto show that these two witnesses are in any way interested and inimical to the appellant. From their evidence it is evident that the appellant made the extra judicial confession, which is voluntary and further the appellant had motive to commit the crime. It is relevant here to state that after the appellant was brought to the Police Station he made a statement leading to the recovery of the dead body. The prosecution has thus proved beyond reasonable doubt that the deceased was last seen in the company of the appellant, he had made extra judicial confession and the dead body was recovered at the instance of the appellant. The chain of circumstances indicated above clearly point out the guilt of the appellant and in our opinion the High Court rightly held him guilty of the offence charged. | 0 | 1,442 | 572 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
suspected that the informant had spoiled his sister. The informant as also the other persons present there apprehended the appellant and produced him before the Police and gave another report and accordingly Section 302 and 201 of the Indian Penal Code were added in Crime No.130 of 1994. After arrest by the Police, appellant gave a statement before the Police and pointed out the place where he had buried the child and on that information PW.6, Padmanabharaju Tahsildar and PW.9, Dr. Ramadas were summoned to the spot and the dead body was exhumed in their presence and the Panch witnesses. After usual investigation Police submitted charge-sheet against the appellant and he was ultimately committed to the Court of Session to face the trial where he was charged for the commission of the offence under Section 302 and 201 of the Indian Penal Code. Appellant denied to have committed any offence and claimed to be tried. In order to bring home the charge the prosecution had examined altogether 14 witnesses which included PW.1, Thotaramu and PW.2, Gowaramma, the father and the mother of the deceased as also PW.3, Sakamma and PW.4, Annapoornamma who had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The prosecution had also examined PW.5, H.S Nagaraju and PW.7, H.D. Ganganna before whom the appellant had made the extra judicial confession. Besides PW.9, Dr. Ramadas who had conducted the postmortem examination and Tehsildar PW.6, Pamanabharaju, in whose presence the dead body was exhumed were also examined.6. The trial court rejected the case of the prosecution that the appellant was last seen in the company of the deceased as also extra judicial confession and acquitted the appellant of both the charges. However, in appeal the High Court relied on the evidence of PW.3, Sakamma and PW.4, Annapoornamma and held that the deceased was last seen in the company of the appellant and further found that the appellant had made extra judicial confession before PW.5, H.D. Nagaraju and PW.7, H.D. Ganganna and accordingly set aside the order of acquittal and convicted the appellant as above.7. Mr. Rajesh Mahale, learned counsel appearing on behalf of the appellant submits that the view taken by the trial court being one of the possible views, the High Court in an appeal from the judgment of the acquittal ought not to have interfered with the same and converted the judgment of acquittal to that of conviction.8. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the respondent submits that the evidence on record clearly established that the appellant murdered the child and in order to conceal the crime buried him and that being the only possible view the High Court rightly interfered with the judgment of acquittal.9. It is trite that the High Court in appeal from the judgment of acquittal does not interfere with the same in case the view taken by the trial court is one of the possible views. It is equally well settled that the High Court in an appeal from the judgment of acquittal possesses the power to appraise the evidence and come to its own conclusion and can reverse the finding of acquittal to that of conviction if in its opinion the evidence on record proves the guilt of the accused. Bearing in mind the principle aforesaid, we proceed to examine the correctness of the impugned judgment. PW.3, Sakamma and PW.4, Annapoornamma are neighbours not only of the deceased but of the appellant also as it has come in their evidence that their houses are intervened by one or two houses of the informant and the appellant. They have clearly stated in their evidence that they had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The trial court has rejected this part of the prosecution story on the ground that these witnesses could not have identified the appellant in the evening as it is not the case of the prosecution that there was any light. As stated earlier appellant and these two witnesses are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatized to fluorescent-light. Visible capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meager light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidences clearly show that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.10. PW.5, H.S. Nagaraju and PW.6, Padmanabharaju have stated that on enquiry the appellant confessed that he had murdered the deceased as he suspected his father to have killed his uncles son and spoiled his sister. Nothing has been brought on record in the cross-examination to show that these two witnesses are in any way interested and inimical to the appellant. From their evidence it is evident that the appellant made the extra judicial confession, which is voluntary and further the appellant had motive to commit the crime. It is relevant here to state that after the appellant was brought to the Police Station he made a statement leading to the recovery of the dead body. The prosecution has thus proved beyond reasonable doubt that the deceased was last seen in the company of the appellant, he had made extra judicial confession and the dead body was recovered at the instance of the appellant. The chain of circumstances indicated above clearly point out the guilt of the appellant and in our opinion the High Court rightly held him guilty of the offence charged.
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9. It is trite that the High Court in appeal from the judgment of acquittal does not interfere with the same in case the view taken by the trial court is one of the possible views. It is equally well settled that the High Court in an appeal from the judgment of acquittal possesses the power to appraise the evidence and come to its own conclusion and can reverse the finding of acquittal to that of conviction if in its opinion the evidence on record proves the guilt of the accused. Bearing in mind the principle aforesaid, we proceed to examine the correctness of the impugned judgment. PW.3, Sakamma and PW.4, Annapoornamma are neighbours not only of the deceased but of the appellant also as it has come in their evidence that their houses are intervened by one or two houses of the informant and the appellant. They have clearly stated in their evidence that they had seen the appellant holding the hand of the deceased in the evening of 17th July, 1994. The trial court has rejected this part of the prosecution story on the ground that these witnesses could not have identified the appellant in the evening as it is not the case of the prosecution that there was any light. As stated earlier appellant and these two witnesses are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatized toVisible capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meager light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidences clearly show that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.10. PW.5, H.S. Nagaraju and PW.6, Padmanabharaju have stated that on enquiry the appellant confessed that he had murdered the deceased as he suspected his father to have killed his uncles son and spoiled his sister. Nothing has been brought on record in theto show that these two witnesses are in any way interested and inimical to the appellant. From their evidence it is evident that the appellant made the extra judicial confession, which is voluntary and further the appellant had motive to commit the crime. It is relevant here to state that after the appellant was brought to the Police Station he made a statement leading to the recovery of the dead body. The prosecution has thus proved beyond reasonable doubt that the deceased was last seen in the company of the appellant, he had made extra judicial confession and the dead body was recovered at the instance of the appellant. The chain of circumstances indicated above clearly point out the guilt of the appellant and in our opinion the High Court rightly held him guilty of the offence charged.
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SUDHAKAR BABURAO NANGNURE Vs. NORESHWAR RAGHUNATHRAO SHENDE | A Balakrishnan (1977) 3 SCC 255 and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417 . 79. The delay has, in our view, justifiably weighed with the High Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court Mahasangh, (2013) 5 Mh LJ 640 80. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation. Whatever be the reason, the fact remains that the appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniority. 81. Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 provides as follows:3. Appointment to the post of the Director of Town Planning, Group-A shall be made by promotion of a suitable person on the basis of strict selection with due regard to seniority, from amongst the persons holding the post of Joint Director of Town Planning in the Directorate, having not less than three years regular service in that post. The fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that post. 82. In R Prabha Devi v Union of India (1988) 2 SCC 233 , a two Judge Bench of this Court formulated the principle in the following terms:The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. … Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can override it in the matter of promotion to the next higher post. Seniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783 ]. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred. 83. The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before this Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading. 84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734 at 742 . The same principle was emphasized in Bhupendra Nath Hazarika v State of Assam (2013) 2 SCC 516 :..when the infrastructure is founded on total illegal edifice, the endeavor to put forth a claim for counting the previous service to build a pyramid is bound to founder. [See also PV George v State of Kerala (2007) 3 SCC 557 and BA Linga Reddy v Karnataka State Transport Authority (2015) 4 SCC 515 (relied upon to buttress the submission that the power of the High Court to strike down cannot be exercised prospectively)]. 85. The answer to the submissions is simple: the appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when the vacancy occurred. He cannot, hence, challenge the appointment of the first respondent. | 0[ds]17. What emerges from the order dated 12 December 2017 is that:(i) Liberty was granted to the appellant specifically to pursue the remedies available in law on the grievance that the issue of catch-up, though raised, had not been considered by the High Court; and(ii) This Court had not considered the matter on meritsThe reservation of liberty to the appellant to adopt a suitable remedy in law, to pursue the grievance that a submission which was urged before the High Court had not been considered would evidently be a reference to the remedy by way of a review18. It is well settled that if a submission which has been urged before the High Court has not been noticed or considered, it is to the High Court that the aggrieved litigant must turn for the rectification of the record. But, apart from this, the observation in the order dated 12 December 2017 that this Court had not considered the matter on merits is of crucial significance. The purpose of that clarification was to ensure that the issues which were raised (in any event with regard to the catch-up rule) were entirely open, to be urged before the High Court in the first instance and thereafter, if the appellant were to be aggrieved, in further proceedings before this Court. The above observation of this Court was not merely intended to keep the issue of the non-consideration of the catch-up rule open to be urged before the High Court. That this issue was kept open, is evident from the last part of the order dated 12 December 2017 which specifically keeps open the contentions of the parties to be urged before the High Court. In addition, the order of this Court carefully enunciates that we have not considered the matter on merits19. In view of this clear clarification, it is impossible to accept the preliminary objection that a recourse to this Court is barred after the High Court decided the review petitions. To take any other view would effectively deny access to justice to the appellant. Evidently, the grievance of the appellant was not considered by this Court on merits on 12 December 2017. To adopt a construction which would deprive the appellant of the remedy of moving this Court after the decision of the High Court in review would lead to an egregious failure of justice. Such a construction must be eschewed20. We would like to note an important aspect of the matter here which reflects on the bona fides of the appellant. The appellant moved a Miscellaneous Application on 22 November 2018 by way of abundant caution, for seeking a clarification of the order dated 12 December 2017. The appellant sought a clarification to the effect that upon the disposal of the review petitions by the High Court, it would be open to challenge the order in review as well as the original order before this Court21. One of the members of the earlier Bench, Honble Mr Justice Kurian Joseph, was due to demit office on 29 November 2018. The Miscellaneous Application was instituted on 22 November 2018. On 28 November 2018, a Bench consisting of Honble Mr Justice Kurian Joseph and one of us (Honble Mr Justice Hemant Gupta) issued notice on the Miscellaneous Application22. We accordingly clarify the earlier order dated 12 December 2017 by directing that it would be open to the appellant, if aggrieved by the order that may be passed by the High Court in review to challenge both the order in review and original orders in the writ petitions. However, this liberty is confined to the issue of the catch-up rule. In issuing this clarification, we have also been guided by an earlier precedent of a two judge Bench of this Court in the Maharashtra Chamber of Housing Industry v Municipal Corporation of Greater Mumbai .24. In the above case, it is evident that the petitioners had sought permission to withdraw the Special Leave Petition, after arguing the matter for some time, to seek a review of the order which was impugned. Granting permission, the Special Leave Petition was dismissed as withdrawn. It is clear therefore that there was nothing to indicate that the court had granted permission to move this Court afresh against the original order after the review was decided25. In Abhishek Malviya v Additional Welfare Commissioner(2008) 3 SCC 108 , a Special Leave Petition was filed before this Court against an order of the Additional Welfare Commissioner in a matter involving a claim for compensation arising out of the Bhopal Gas Leak Disaster. One of the grounds of challenge was that the Additional Welfare Commissioner had referred to the appellant as deceased. This Court dismissed the Special Leave Petition as withdrawn, recording the submission of the appellant that he wishes to move the Additional Welfare Commissioner for correction of the order. After the Additional Welfare Commissioner passed a fresh order, writ proceedings were initiated before the High Court. The High Court held that by the earlier order of this Court, liberty was reserved only to move the Additional Welfare Commissioner to correct a typographical error in appeal. This Court affirmed the order of the High Court, holding that its earlier order had merely reserved liberty to move the Additional Welfare Commissioner for correction of a typographical error27. In the present case, we find, for the reasons which we have indicated above, a clear distinction on facts. While disposing of the earlier Special Leave 23 (2016) 4 SCC 696 Petition to enable the appellant to pursue his remedies on the contention that the issue of catch-up though raised was not considered by the High Court, this Court expressly clarified that it had not considered the matter on merits. In the absence of such a clarification, the withdrawal of the Special Leave Petition would have led to the inference that the appellant had not been granted liberty to move this Court afresh. On the other hand, the clear purpose and intent of the observation that this Court had not considered the matter on merits was to keep open all the remedies of the appellant before the High Court in the first instance and thereafter before this Court on the issue of the catch-up rule28. By the clarification that we have issued on the Miscellaneous Applications, we have set the matter at rest. For the above reasons, we do not find any merit in the preliminary objection34. Clause (1) of Article 16 of the Constitution stipulates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The expression appointment was interpreted by a Bench of nine Judges of this Court in Indra Sawhney (supra) to exclude reservations in promotional posts. The expression appointment was construed to refer to initial appointments and hence not to promotional avenues. After this decision, the Parliament in its constituent capacity amended Article 16 by the Constitution (Seventy-seventh) Amendment Act 1995 with effect from 17 June 1995. Clause (4A) of Article 16 as introduced by the Seventy-Seventh Amendment read thus:16.(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the StateBy virtue of Clause (4A), an enabling provision was introduced as a result of which nothing contained in the Article would prevent the State from making reservations in promotion in the services under the State for Scheduled Castes and Tribes which, in its opinion, are not adequately represented in its service35. A line of cases before this Court considered the effect of an accelerated promotion granted to a member of a Scheduled Caste or Scheduled Tribe in terms of consequential seniority in a higher post. More specifically, the vexed issue was whether a member of such a caste and tribe who obtains promotion earlier than a senior belonging to the general or open category in the feeder cadre would retain that seniority on the latter being promoted to a higher post40. The constitutional validity of clauses (4A) and (4B) of Article 16 of the Constitution was dealt with in a decision of a Constitution Bench of this Court in Nagaraj (supra). Nagaraj (supra) laid down that the catch-up rule and the concept of the consequential seniority are essentially precepts of servicejurisprudence. They cannot, in the view of the Constitution Bench, be elevated to the status of a component of the basic structure. These precepts have been held to be practices as distinct from constitutional principles. The consequence is that they do not lie beyond the amending power of Parliament: neither the catch-up rule nor consequential seniority are elements of clauses (1) or (4) of Article 16. These have been held to be the principles evolved to control the extent of reservationThe Court held that since no exercise was carried out by the State of Rajasthan to acquire quantifiable data regarding the inadequacy of representation of Scheduled Castes and Tribes in public services in the state, the High Court was justified in quashing the notifications providing for consequential seniority and promotion46. Justice R Banumathi, speaking for the two Judge Bench held that Rule 12 did not provide for consequential seniority to candidates drawn from the reserved category who are granted accelerated promotion and, in the absence of a specific provision or policy, consequential seniority could not be granted:26. The true legislative intent under Article 16(4-A) of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16(4-A) of the ConstitutionThe Court noted that the appellants who belonged to the general category were not questioning the accelerated promotion granted to their counterparts from the reserved category by following the rule of reservation but were only seeking the application of the catch-up rule in the fixation of seniority in the promotional cadre. The Court held that in the absence of any provision of consequential seniority in the rules, the catch-up rule will prevail:36. In the absence of any provision for consequential seniority in the rules, the catch-up rule will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4-A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster- point promotees and the judgment of the Division Bench cannot be sustained53. The Reservation Act 2004 was enacted by the State legislature in 2001. The assent of the Governor was received on 20 January 2004 and it was published in the Official Gazette on 22 January 2004. The enactment has come into force after the 85th constitutional amendment. Prior to the enforcement of the Act, reservations were confined upto the entry level in Group I posts, this being common ground during the course of the hearing. As a result of the enactment of the law, reservations are applicable to all appointments in public services and posts [except categories covered by clauses (a) to (d) of sub-section (1) of Section 3]59. We have already noticed the decision in Indra Sawhney (supra) as having laid down that a provision for reservation can be incorporated in an executive order. We are not inclined to accede to the submission of the appellant that the GR dated 20 March 2003 will cease to remain in force after the enactment of the Reservation Act 2004. The Reservation Act has not dealt with issue of consequential seniority. Sub-section (2) of Section 5 saves government orders providing for reservation of any posts to be filled in promotion which were in force on the date of the enactment of the Act. Similarly, the proviso to sub-section (1) of Section 6 saves government orders regarding the filling up of unfilled posts reserved for Backward Class candidates in force on the date of the commencement of the Act. The GR dated 20 March 2003 deals with the determination of seniority while sub-section (2) of Section 5 deals with orders providing for reservation. The GR dated 20 March 2003 is undoubtedly not a government order which falls within the purview of either sub-section (2) of Section 5 or the proviso to sub-section (1) of Section 6. However, the enactment of the Act by the state legislature cannot be construed as a legislative intent to override or abrogate the principle of consequential seniority incorporated in government resolutions. A provision for consequential seniority can certainly be incorporated in an executive order issued in pursuance of the provisions of Article 162 of the Constitution.60. The Government Resolution dated 20 March 2003 has not been abrogated upon the enactment of the Reservation Act 2004. The Reservation Act 2004 does not deal with the principle of consequential seniority. It would be impermissible to read the Act as having superseded the applicable government orders on consequential seniority, in the absence of clear words providing for such an effect62. This again, is an attempt to urge the Court to read the GR dated 20 March 2003 in a restrictive manner on the basis of the Reservation Act 2004. The GR dated 20 March 2003, while incorporating the principle of consequential seniority, reiterates the GR dated 20 October 1997. It also adverts to the Seniority Rules 1982 of which Rule 4 specifically stipulates that the length of continuous service will be determinative of seniority in respect of posts and cadres in the service. Accepting the submission of the appellant would lead to an anomalous situation where consequential seniority will be made applicable to posts below Class 1, and the catch-up rule will apply to Class 1 posts. An interpretation which results in this anomaly must be eschewed, particularly in the absence of a challenge to the GR dated 20 March 2003 and the Seniority Rules of 198264. A challenge to the GR dated 20 March 2003 is conspicuous by its absence in the reliefs which were sought before the Maharashtra Administrative Tribunal. We have adverted to the reliefs claimed in an earlier part of this judgment and they are indicative only of a challenge to seniority. Entertaining a challenge to the validity of a Government Resolution incorporating the principle of consequential seniority without a specific challenge being addressed before the Tribunal would simply be impermissible. Entertaining such a challenge at this stage will have serious consequences in the entire State of Maharashtra by upsetting a significant number of promotions which may have already been granted to candidates belonging to the reserved category. The State government, in the pleadings before the Tribunal and the High Court was not called upon to justify the basis of its decision to adopt consequential seniority in the absence of a challenge being squarely set up in the forum of first instance65. A challenge to the resolution providing for consequential seniority is indeed a serious matter. Such a challenge calls upon the court to upset a policy circular which has been issued with the avowed objective of safeguarding consequential seniority which was, as our constitutional history indicates, a clear purpose underlying the 85th Amendment to the Constitution. Such constitutional challenges cannot be bandied about without specific pleadings. We are clearly of the view that such an exercise would be impermissible in the absence of a frontal challenge70. All these decisions (except the decision in Panneer Selvam) involved a specific challenge to the validity of administrative notifications or, as the case may be, an Act of the legislature. Panneer Selvam (supra) was a case where in the absence of a provision for consequential seniority, it was held that the catch-up rule will prevail. In the present case, there is a specific provision for consequential seniority in the GR dated 20 March 2003. Absent a challenge to the GR in the proceedings which were initiated before the Tribunal, such a challenge cannot be entertained at this stage73. The submission of the appellant is based on the hypothesis that the promotion of the first respondent is ad-hoc and hence, he is not entitled to consequential seniority in terms of the GR dated 20 March 2003, which speaks of the regular date of promotion. In assessing this submission, it is necessary to note that the order of promotion dated 11 August 2011 indicates the reason as to why the promotion was treated as ad-hoc. The reason was the pendency of Writ Petition 8452 of 2004 before the Bombay High Court where there was a challenge to the Reservation Act 2004. Indeed, the order of promotion dated 2 July 2013 by which the appellant was promoted to the post of JDTP also states that the promotion is ad-hoc. Significantly, in the case of the appellant as well, the reason why the promotion is treated as ad-hoc is also the pendency of Writ Petition 8452 of 200474. A policy circular was issued by the State of Maharashtra on 1 April 2008 to all departments directing that promotions will be subject to the outcome of the decision in the above Writ Petition. Special Leave Petitions against the judgment of the Bombay High Court in the Writ Petitionare pending adjudication before this Court. The Tribunal, by its order dated 28 November 2014 struck down the Reservation Act, 2004 and the GR dated 25 May 2004. The judgment of the Tribunal was stayed by the Bombay High Court on 20 March 2015. On 4 August 2017, the High Court set aside the decision of the Tribunal to the extent that it and others struck down the Reservation Act 2004. The High Court kept the issue of constitutional validity open. The State of Maharashtra has filed a Special Leave Petition which is pending before this Court78. Eligibility has to be considered on the date of the occurrence of the vacancy. On 30 April 2016, the appellant did not fulfill the eligibility required for the post of DTP. In assailing the decision of the first respondent, as we have noted, the appellant has submitted that the promotion of the first respondent as JDTP on 11 August 2011 was under a circular dated 27 October 2008 which has been struck down by the Bombay High Court. The High Court in dealing with this submission has held that the order of promotion, when it was issued on 11 August 2011 had an imprint of legality. Moreover, even the appellant adopted the position that since promotion was given to the first respondent in terms of the Government Circular dated 27 October 2008, he believed that he had no reason to object to the seniority list of JDTP published on 28 August 2014. That apart, the High Court has noted that after the promotion of the first respondent on 11 August 2011, the appellant was promoted on 2 July 2013 and it was only when the second seniority list was finalized on 15 January 2016 that the appellant filed an OA in February 2016. In the meantime, the appellant had worked as JDTP for a period of nearly five years. In declining to allow the issue of seniority to be challenged at this belated stage, the High Court relied upon the decisions of this Court in Roshan Lal v International Airport Authority of India (1980) Suppl.SCC 449 , P Chitharanja Menon v A Balakrishnan (1977) 3 SCC 255 and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417 79. The delay has, in our view, justifiably weighed with the High Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court Mahasangh, (2013) 5 Mh LJ 64080. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation.Whatever be the reason, the fact remains that the appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniorityThe fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that postSeniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783 ]. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred83. The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before this Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734 at 742 .85. The answer to the submissions is simple: the appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when thevacancy occurred. He cannot, hence, challenge the appointment of the first respondent. | 0 | 15,355 | 4,347 | ### 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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A Balakrishnan (1977) 3 SCC 255 and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417 . 79. The delay has, in our view, justifiably weighed with the High Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court Mahasangh, (2013) 5 Mh LJ 640 80. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation. Whatever be the reason, the fact remains that the appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniority. 81. Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 provides as follows:3. Appointment to the post of the Director of Town Planning, Group-A shall be made by promotion of a suitable person on the basis of strict selection with due regard to seniority, from amongst the persons holding the post of Joint Director of Town Planning in the Directorate, having not less than three years regular service in that post. The fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that post. 82. In R Prabha Devi v Union of India (1988) 2 SCC 233 , a two Judge Bench of this Court formulated the principle in the following terms:The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. … Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can override it in the matter of promotion to the next higher post. Seniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783 ]. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred. 83. The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before this Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading. 84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734 at 742 . The same principle was emphasized in Bhupendra Nath Hazarika v State of Assam (2013) 2 SCC 516 :..when the infrastructure is founded on total illegal edifice, the endeavor to put forth a claim for counting the previous service to build a pyramid is bound to founder. [See also PV George v State of Kerala (2007) 3 SCC 557 and BA Linga Reddy v Karnataka State Transport Authority (2015) 4 SCC 515 (relied upon to buttress the submission that the power of the High Court to strike down cannot be exercised prospectively)]. 85. The answer to the submissions is simple: the appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when the vacancy occurred. He cannot, hence, challenge the appointment of the first respondent.
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2014 struck down the Reservation Act, 2004 and the GR dated 25 May 2004. The judgment of the Tribunal was stayed by the Bombay High Court on 20 March 2015. On 4 August 2017, the High Court set aside the decision of the Tribunal to the extent that it and others struck down the Reservation Act 2004. The High Court kept the issue of constitutional validity open. The State of Maharashtra has filed a Special Leave Petition which is pending before this Court78. Eligibility has to be considered on the date of the occurrence of the vacancy. On 30 April 2016, the appellant did not fulfill the eligibility required for the post of DTP. In assailing the decision of the first respondent, as we have noted, the appellant has submitted that the promotion of the first respondent as JDTP on 11 August 2011 was under a circular dated 27 October 2008 which has been struck down by the Bombay High Court. The High Court in dealing with this submission has held that the order of promotion, when it was issued on 11 August 2011 had an imprint of legality. Moreover, even the appellant adopted the position that since promotion was given to the first respondent in terms of the Government Circular dated 27 October 2008, he believed that he had no reason to object to the seniority list of JDTP published on 28 August 2014. That apart, the High Court has noted that after the promotion of the first respondent on 11 August 2011, the appellant was promoted on 2 July 2013 and it was only when the second seniority list was finalized on 15 January 2016 that the appellant filed an OA in February 2016. In the meantime, the appellant had worked as JDTP for a period of nearly five years. In declining to allow the issue of seniority to be challenged at this belated stage, the High Court relied upon the decisions of this Court in Roshan Lal v International Airport Authority of India (1980) Suppl.SCC 449 , P Chitharanja Menon v A Balakrishnan (1977) 3 SCC 255 and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417 79. The delay has, in our view, justifiably weighed with the High Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court Mahasangh, (2013) 5 Mh LJ 64080. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation.Whatever be the reason, the fact remains that the appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniorityThe fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that postSeniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783 ]. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred83. The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before this Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734 at 742 .85. The answer to the submissions is simple: the appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when thevacancy occurred. He cannot, hence, challenge the appointment of the first respondent.
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The General Assurance Society Ltd Vs. The Life Insurance Corporation Of India | form a separate fund, the assets of which shall after the expiry of six months, be kept distinct and separate from all other assets of the insurer. Section 11 of the Insurance Act enjoins every insurer in respect of insurance business transacted by him to prepare with reference to every year in accordance with the regulation contained in Part I of the First Schedule a balance-sheet in the forms set forth in Part II of that Schedule. Form A has two columns, one under the heading "Life Annuity Business" and the other under the heading "Other classes of business" Under S. 15(1) of the Insurance Act, the audited accounts and statements referred to in S. 11 or S. 13(5) and the abstract and statement referred to in S. 13 shall be furnished as returns to the Controller within the time prescribed thereunder. Under S. 21 of the said Act, if it appears to the Controller that any return furnished to him under the provisions of the Insurance Act is in accurate or defective in any respect , he may get the necessary information from the insurer and decline to accept the same unless the inaccuracy has been corrected and the deficiency has been supplied before the time prescribed. Under sub-sec. (2) of S. 21 of the said Act, the Court may, on the application of an insurer and after hearing the Controller, cancel any order made by the Controller or may direct the acceptance of any return which the Controller has declined to accept, if the insurer satisfied the Court that the action of the Controller was in the circumstances unreasonable. Section 22 of the said Act confers power on the Controller to order revaluation. Section 23 thereof says that every return furnished to the Controller, which has been certified by the Controller to be a return so furnished, shall be deemed to be a return so furnished and under sub-sec. (2) thereof every document, purporting to be certified by the Controller to be a copy of a return so furnished, shall be deemed to be a copy of that return and, shall be received in evidence as if it were the original return, unless some variation between it and original return is proved. The first question is whether under the provisions of the Insurance Act the contents of a certified balance-sheet of an insurer are binding on the insurer in a collateral proceeding. The provisions of the Insurance Act do not say that the correctness of the balance-sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in as collateral proceeding. For the purpose of the Insurance Act it would be accepted as correct. The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance-sheets. There is also no provision in the Life Insurance Corporation Act making the contents of the said balance-sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance-sheets can be proved to be wrong.22. Mr. Setalvad argued that fort he purpose of convenience of disbursement of dividends, the entire amount is shown as appertaining to the life insurance business as the head office in Ajmer was only dealing with life insurance business and making the disbursements. Be it as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business. The relevant entries in the certified balance-sheets are, therefore, not correct. If so, it follows that under S. 7(1) of the Life Insurance Corporation Act on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in the Corporation.23. The next question is how to apportion the said assets and liabilities between the Corporation and the Company. Before the Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets corresponding to the liability undertaking to reimburse the respondent for any claim of the share-holders against it. In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company. Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of S. 7 of the Act namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument. The main contention we have rejected. Even if the apportionment was made the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders. But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them. In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under Art 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. We, therefore, cannot accede to the request of Mr. Setalvad for his indulgence at this very late stage of the matter.24. The last point relates to the payment of interest. Both the parties agreed that in view of the decision of this Court in AIR 1963 SC 1171 the appellant will be entitled to interest at 4 per cent on the sum of Rs. 4,52,000/- from May 24 1957, to the date of payment. | 0[ds]offer was couched in clear and unambiguous terms. It was a composite offer. The letter could not be construed to contain two different matters, one an offer of compensation and the other a demand for payment of the amount due to the respondent in respect of the paid-up capital allocable to the controlled business. On the other hand, in express terms the offer was for payment of compensation after setting off the amount due to the respondent. On August 9, 1957, the appellant wrote a letter in reply to the respondents. Therein an attempt was made to split up the offer. The appellant stated that the amount of compensation offered in the letter, namely, the sum of Rs. 3,30,023/- was not acceptable to it. In regard to the amount of capital allocated by the Company to the controlled business, it stated that the assets worth Rs. 1,35,919/- have already been transferred to the respondent and that having regard to the amount claimed by the respondent under that head, only a sum of Rs. 35,446/- remained to be transferred to the Corporation by it. It asked that the said amount might be deducted from the amount of compensation that might be ordered and decreed to be paid to it by the Tribunal. It would be seen from this letter that the appellant accepted a part of the offer and rejected the rest. On August 20, 1957 the respondent replied to the appellant that as its offer was not accepted, it had sent the necessary papers to the Tribunal. On August 22, 1957, the appellant received a notice from the Tribunal. The preamble to that noticeyou have not accepted the amount determined by the Corporation and offered in full settlement of the compensation payable to you under the Act and whereas you have requested the Corporation to have the matter referred to the Tribunal for decision and whereas the Corporation has so referred theclearly shows that the dispute before the Tribunal arose as the appellant did not accept the amount determined by the Corporation and offered in full settlement of the compensation payable to the appellant under the Act. It does not indicate that the accepted part of the offer was considered to be a closed matter between the parties and the disputed part only was put in issue. On September 13, 1957, the appellant wrote a letter of the respondent requesting it to pay the amount of compensation offered by it subject to adjustment on the basis of the decision to be given by the Tribunal. It also requested the respondent to supply to it a copy of the calculation sheet to show how the amount of compensation offered by it had been arrived at. On the same day, the respondent sent a copy of the said calculation sheet, which clearly showed not only the amount of compensation payable but also the amount of paid-up capital allocable to the controlled business deductible therefrom. On September 17, 1957, the respondent made it clear to the appellant that if the appellant agreed to accept the amount offered by it in full satisfaction of the compensation payable to the appellant under the Act, the respondent could make payment of the said amount to it. It is, therefore, clear that the dispute between the parties related to the composite offer made by the respondent i. e., the compensation payable as well as the set off of the amount due to the respondent calculated under R. 18 of the Rules made under the Act.Reliance is placed upon the circumstance that there was no specific issue framed by the Tribunal in respect of the paid up capital allocable to the controlled business of the appellant. But the pleadings clearly pinpoint the dispute between the parties in respect of the set off. As we will indicate later in our judgment, the calculation of the amount due towards paid-up capital allocable to the controlled business depends on a basic factor that goes into the calculation of the amount due towards compensation. It was presumably found not necessary to frame a specific issue in respect thereof for if that factor was settled one way or other, the amount due under the said head was only a matter of calculation and could certainly be taken into consideration in awarding the set off under the general issue, issue 8.9. Further, it does not appear from the order of the Tribunal that this question was raised before it. Indeed, it appears that both the parties proceeded on the basis that the calculation of the amount due towards compensation and that due towards paid-up capital allocable to the controlled business were linked together and that by calculating the said two figures on the same basis one should be deducted from the other. If the question raised before us had been raised before the Tribunal one would expect the Tribunal to deal with that matter. On the other hand, para. 19 of the order shows that the appellant did not dispute the manner of the set off on the basis of the amount of compensation ascertained by theIt will be seen from the aforesaid calculations that there is an integral connection between the compensation payable to the insurer and the amount representing the capital allocable to the controlled business transferred to the Corporation. The common factor for both the amounts is the annual average of the surplus allotted to the share holders. The same surplus must be the basis for calculating both the figures. Obviously two different figures cannot be given for the same surplus. If two different figures are given for the same surplus, not only one of the calculations must be wrong but also grave injustice would be done to one of the parties. As the two figures cannot be disassociated, the respondent made a composite offer.13. What happened before the Tribunal is this: the appellant in annexure C to the Statement of Claim claimed that the annual average of the surplus deemed to be allocated to the share-holders was Rs. 29,125.2; the respondent stated that it was only Rs. 15,512.6; and the Tribunal came to the conclusion that the said annual average of the surplus was Rs. 29,125.2. The result was that the calculations made by the Corporation under the said two heads were upset. On that basis, applying the same formula the compensation was raised to a sum Rs. 2,79,683.18. The Tribunal, therefore, rightly set off the said figures one against the other and held that the balance, after making other admitted deductions, was payable to the appellant.14.The above discussion clearly establishes the reason why a composite offer was made and why the dispute in respect of the said offer could not be split up into two parts. Both the amounts are payable under the provisions of the Act. Calculation of both depends upon the same "surplus". It is, therefore, reasonable to hold that the Act contemplates the setting off one against thecombined reading of clauses (iv)and (vi) of Rule 12A of the Rules makes it abundantly clear that a claim for set off of the nature that we are now considering is certainly covered by the wide phraseology of cl. (vi) of the said rule. This rule, it is said, was introduced after the decision on the dispute in the instant case was given.Be it as it may, in the material clauses of the rule only recognize the pre-existing principles inherent in the relevant dispute under the provisions of thedecision is an authority for the view that when a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend for which he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder. Indeed, this legal position is not disputed. If so, the shareholders in the present case were only in the position of creditors in respect of the dividends declared in their favour and the amounts representing the dividends continued to be a part of the assets of the company; and indeed the balance-sheets filed in the present case show that a particular amount had been earmarked for payment of dividends. To put it differently, the amount equivalent to the dividends declared continued to be a part of the assets of the company and the dividends continued to be its debts. The said assets were part of the general assets of the company and the said liabilities were part of the general liabilities of the company. There cannot be any difference in law, in the matter of ownership of the assets, between a part of the assets equivalent to the dividends declared and the rest of themay be so if the declared dividends are held in trust by the Company for a shareholder. But, as we have pointed out, the settled law on the point does not countenance any such concept of trust. The shareholders can only realise their dividends from the assets of the business for they include the amounts representing the dividends. In any view, the definition of assets and liabilities of a controlled business in sub-sec. (2) of S. 7 of the Act is certainly comprehensive enough to take in the said declared dividends and the corresponding assets. We cannot, therefore, accept thisprovisions of the Insurance Act do not say that the correctness of the balance-sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in as collateral proceeding. For the purpose of the Insurance Act it would be accepted as correct. The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance-sheets. There is also no provision in the Life Insurance Corporation Act making the contents of the said balance-sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance-sheets can be proved to beit as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business. The relevant entries in the certified balance-sheets are, therefore, not correct. If so, it follows that under S. 7(1) of the Life Insurance Corporation Act on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in thethe Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets corresponding to the liability undertaking to reimburse the respondent for any claim of the share-holders against it. In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company. Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of S. 7 of the Act namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument. The main contention we have rejected. Even if the apportionment was made the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders. But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them. In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under Art 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. We, therefore, cannot accede to the request of Mr. Setalvad for his indulgence at this very late stage of the matter.24. The last point relates to the payment of interest. Both the parties agreed that in view of the decision of this Court in AIR 1963 SC 1171 the appellant will be entitled to interest at 4 per cent on the sum of Rs. 4,52,000/- from May 24 1957, to the date of payment. | 0 | 7,219 | 2,253 | ### 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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form a separate fund, the assets of which shall after the expiry of six months, be kept distinct and separate from all other assets of the insurer. Section 11 of the Insurance Act enjoins every insurer in respect of insurance business transacted by him to prepare with reference to every year in accordance with the regulation contained in Part I of the First Schedule a balance-sheet in the forms set forth in Part II of that Schedule. Form A has two columns, one under the heading "Life Annuity Business" and the other under the heading "Other classes of business" Under S. 15(1) of the Insurance Act, the audited accounts and statements referred to in S. 11 or S. 13(5) and the abstract and statement referred to in S. 13 shall be furnished as returns to the Controller within the time prescribed thereunder. Under S. 21 of the said Act, if it appears to the Controller that any return furnished to him under the provisions of the Insurance Act is in accurate or defective in any respect , he may get the necessary information from the insurer and decline to accept the same unless the inaccuracy has been corrected and the deficiency has been supplied before the time prescribed. Under sub-sec. (2) of S. 21 of the said Act, the Court may, on the application of an insurer and after hearing the Controller, cancel any order made by the Controller or may direct the acceptance of any return which the Controller has declined to accept, if the insurer satisfied the Court that the action of the Controller was in the circumstances unreasonable. Section 22 of the said Act confers power on the Controller to order revaluation. Section 23 thereof says that every return furnished to the Controller, which has been certified by the Controller to be a return so furnished, shall be deemed to be a return so furnished and under sub-sec. (2) thereof every document, purporting to be certified by the Controller to be a copy of a return so furnished, shall be deemed to be a copy of that return and, shall be received in evidence as if it were the original return, unless some variation between it and original return is proved. The first question is whether under the provisions of the Insurance Act the contents of a certified balance-sheet of an insurer are binding on the insurer in a collateral proceeding. The provisions of the Insurance Act do not say that the correctness of the balance-sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in as collateral proceeding. For the purpose of the Insurance Act it would be accepted as correct. The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance-sheets. There is also no provision in the Life Insurance Corporation Act making the contents of the said balance-sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance-sheets can be proved to be wrong.22. Mr. Setalvad argued that fort he purpose of convenience of disbursement of dividends, the entire amount is shown as appertaining to the life insurance business as the head office in Ajmer was only dealing with life insurance business and making the disbursements. Be it as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business. The relevant entries in the certified balance-sheets are, therefore, not correct. If so, it follows that under S. 7(1) of the Life Insurance Corporation Act on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in the Corporation.23. The next question is how to apportion the said assets and liabilities between the Corporation and the Company. Before the Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets corresponding to the liability undertaking to reimburse the respondent for any claim of the share-holders against it. In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company. Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of S. 7 of the Act namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument. The main contention we have rejected. Even if the apportionment was made the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders. But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them. In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under Art 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. We, therefore, cannot accede to the request of Mr. Setalvad for his indulgence at this very late stage of the matter.24. The last point relates to the payment of interest. Both the parties agreed that in view of the decision of this Court in AIR 1963 SC 1171 the appellant will be entitled to interest at 4 per cent on the sum of Rs. 4,52,000/- from May 24 1957, to the date of payment.
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other admitted deductions, was payable to the appellant.14.The above discussion clearly establishes the reason why a composite offer was made and why the dispute in respect of the said offer could not be split up into two parts. Both the amounts are payable under the provisions of the Act. Calculation of both depends upon the same "surplus". It is, therefore, reasonable to hold that the Act contemplates the setting off one against thecombined reading of clauses (iv)and (vi) of Rule 12A of the Rules makes it abundantly clear that a claim for set off of the nature that we are now considering is certainly covered by the wide phraseology of cl. (vi) of the said rule. This rule, it is said, was introduced after the decision on the dispute in the instant case was given.Be it as it may, in the material clauses of the rule only recognize the pre-existing principles inherent in the relevant dispute under the provisions of thedecision is an authority for the view that when a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend for which he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder. Indeed, this legal position is not disputed. If so, the shareholders in the present case were only in the position of creditors in respect of the dividends declared in their favour and the amounts representing the dividends continued to be a part of the assets of the company; and indeed the balance-sheets filed in the present case show that a particular amount had been earmarked for payment of dividends. To put it differently, the amount equivalent to the dividends declared continued to be a part of the assets of the company and the dividends continued to be its debts. The said assets were part of the general assets of the company and the said liabilities were part of the general liabilities of the company. There cannot be any difference in law, in the matter of ownership of the assets, between a part of the assets equivalent to the dividends declared and the rest of themay be so if the declared dividends are held in trust by the Company for a shareholder. But, as we have pointed out, the settled law on the point does not countenance any such concept of trust. The shareholders can only realise their dividends from the assets of the business for they include the amounts representing the dividends. In any view, the definition of assets and liabilities of a controlled business in sub-sec. (2) of S. 7 of the Act is certainly comprehensive enough to take in the said declared dividends and the corresponding assets. We cannot, therefore, accept thisprovisions of the Insurance Act do not say that the correctness of the balance-sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in as collateral proceeding. For the purpose of the Insurance Act it would be accepted as correct. The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance-sheets. There is also no provision in the Life Insurance Corporation Act making the contents of the said balance-sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer. It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance-sheets can be proved to beit as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business. The relevant entries in the certified balance-sheets are, therefore, not correct. If so, it follows that under S. 7(1) of the Life Insurance Corporation Act on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in thethe Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets corresponding to the liability undertaking to reimburse the respondent for any claim of the share-holders against it. In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company. Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of S. 7 of the Act namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument. The main contention we have rejected. Even if the apportionment was made the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders. But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them. In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under Art 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets. We, therefore, cannot accede to the request of Mr. Setalvad for his indulgence at this very late stage of the matter.24. The last point relates to the payment of interest. Both the parties agreed that in view of the decision of this Court in AIR 1963 SC 1171 the appellant will be entitled to interest at 4 per cent on the sum of Rs. 4,52,000/- from May 24 1957, to the date of payment.
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State Bank of India and Anr Vs. New India Assurance Company Limited | of the State Consumer Disputes Redressal Commission, Andhra Pradesh (SCDRC). 3. On 14 November 2005, a loan agreement was entered into between the first appellant - State Bank of India (Bank) and the second respondent (Borrower). Under the terms of the agreement, all the assets which were charged to the Bank were to be insured by the borrower. In pursuance of the loan agreement, an insurance cover was obtained by the Bank on behalf of the borrower in pursuance of an arrangement which it had with the insurer. A fire took place on the premises of the borrower on 15 February 2007. The insurer not having accepted the claim, the second respondent filed a consumer complaint before the SCDRC. By an order dated 17 November 2014, the SCDRC allowed the complaint in the following terms: In the result, the complaint is allowed. The opposite party no.1 and 2 are directed to forward the claim of the complainant to the opposite party no.3 and the opposite party no.3 to process the claim in accordance with law. The opposite party no.3 shall pay a sum of Rs.50,000/- towards compensation together with costs of Rs.7,000/-. Time for compliance four weeks. Thus, by the above order of the SCDRC, the Bank was directed to forward the claim of the insured to the insurer. The insurer was, in turn, directed to process the claim in accordance with law. No liability to pay compensation was fastened on the Bank. 4. This order of the SCDRC was not challenged either by the borrower or by the Bank. The first appeal before the NCDRC was filed by the insurer who is the first respondent to the present proceedings. By an order dated 6 February 2019, the NCDRC allowed the appeal by making the Bank liable to pay the claim of the borrower, together with interest at the rate of 9% per annum. That has given rise to the present appeal. 5. Mr Ramesh P Bhatt, learned senior counsel appearing on behalf of the appellants, submits that against the order passed by the SCDRC, no appeal was filed by the borrower. The only direction of the SCDRC was for the Bank to forward the claim to the insurer so that it could be in accordance with law. Yet, it has been submitted, that in the appeal which was filed by the insurer against the above direction of the SCDRC, the NCDRC has held the Bank liable. Mr Bhatt submitted that this is contrary to law since the borrower had accepted the order of the SCDRC. Moreover, it has been submitted that in the course of the proceedings which arose from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, a settlement was arrived at between the Bank and the borrower in terms of which a No Dues Certificate was issued by the Bank on 12 June 2017. The borrower, it has been submitted, had, on affidavit, agreed to withdraw all claims as against the Bank. Hence, it has been submitted that as between the borrower and the Bank, there could be no valid basis in law to direct the Bank to pay the amount of the claim to the borrower. 6. On the other hand, it has been urged on behalf of the insurer by Mr Varinder Kumar Sharma, learned counsel that the claim which was submitted by the borrower was belated. The NCDRC has found that the claim was submitted nearly six and a half years after the incident of the fire which took place on 15 February 2007. Hence, it has been submitted that the NCDRC was justified in coming to the conclusion that the claim was time barred. Insofar as the borrower is concerned, the fact that there has been a one time settlement with the Bank is not in dispute. However, Mr Seshatalpa Sai Bandaru, learned counsel for the borrower disputed that the borrower had filed an affidavit withdrawing all claims. 7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 2017 in the following terms: ...I am accepting OTS Terms & Conditions and oblige the same. I further undertake to agree for consent order to be passed in the Tribunal/Court for which I /We will co-operate to pass the consent order and in case of failure to attend for passing the consent order your bank is at liberty to present the said affidavit in the concerned Tribunal/Court for passing the consent order. I/Co-borrowers/Directors/Partners/Guarantors will withdraw all the cases filed by me/us in DRT/High Court/Any other courts against your bank. If I/we failed to withdraw the same your bank is at liberty to file the present affidavit for dismissal/withdrawal of the pending cases. If I/we failed to comply with any Terms & Conditions of the OTS, your bank can continue the SARFAESI Proceedings. Pursuant thereto, on 12 June 2017, the Bank recorded that it had closed the loan account on receipt of the amount in terms of the compromise settlement. 8. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire. | 1[ds]7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 20178. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire. | 1 | 1,141 | 199 | ### 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 the State Consumer Disputes Redressal Commission, Andhra Pradesh (SCDRC). 3. On 14 November 2005, a loan agreement was entered into between the first appellant - State Bank of India (Bank) and the second respondent (Borrower). Under the terms of the agreement, all the assets which were charged to the Bank were to be insured by the borrower. In pursuance of the loan agreement, an insurance cover was obtained by the Bank on behalf of the borrower in pursuance of an arrangement which it had with the insurer. A fire took place on the premises of the borrower on 15 February 2007. The insurer not having accepted the claim, the second respondent filed a consumer complaint before the SCDRC. By an order dated 17 November 2014, the SCDRC allowed the complaint in the following terms: In the result, the complaint is allowed. The opposite party no.1 and 2 are directed to forward the claim of the complainant to the opposite party no.3 and the opposite party no.3 to process the claim in accordance with law. The opposite party no.3 shall pay a sum of Rs.50,000/- towards compensation together with costs of Rs.7,000/-. Time for compliance four weeks. Thus, by the above order of the SCDRC, the Bank was directed to forward the claim of the insured to the insurer. The insurer was, in turn, directed to process the claim in accordance with law. No liability to pay compensation was fastened on the Bank. 4. This order of the SCDRC was not challenged either by the borrower or by the Bank. The first appeal before the NCDRC was filed by the insurer who is the first respondent to the present proceedings. By an order dated 6 February 2019, the NCDRC allowed the appeal by making the Bank liable to pay the claim of the borrower, together with interest at the rate of 9% per annum. That has given rise to the present appeal. 5. Mr Ramesh P Bhatt, learned senior counsel appearing on behalf of the appellants, submits that against the order passed by the SCDRC, no appeal was filed by the borrower. The only direction of the SCDRC was for the Bank to forward the claim to the insurer so that it could be in accordance with law. Yet, it has been submitted, that in the appeal which was filed by the insurer against the above direction of the SCDRC, the NCDRC has held the Bank liable. Mr Bhatt submitted that this is contrary to law since the borrower had accepted the order of the SCDRC. Moreover, it has been submitted that in the course of the proceedings which arose from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, a settlement was arrived at between the Bank and the borrower in terms of which a No Dues Certificate was issued by the Bank on 12 June 2017. The borrower, it has been submitted, had, on affidavit, agreed to withdraw all claims as against the Bank. Hence, it has been submitted that as between the borrower and the Bank, there could be no valid basis in law to direct the Bank to pay the amount of the claim to the borrower. 6. On the other hand, it has been urged on behalf of the insurer by Mr Varinder Kumar Sharma, learned counsel that the claim which was submitted by the borrower was belated. The NCDRC has found that the claim was submitted nearly six and a half years after the incident of the fire which took place on 15 February 2007. Hence, it has been submitted that the NCDRC was justified in coming to the conclusion that the claim was time barred. Insofar as the borrower is concerned, the fact that there has been a one time settlement with the Bank is not in dispute. However, Mr Seshatalpa Sai Bandaru, learned counsel for the borrower disputed that the borrower had filed an affidavit withdrawing all claims. 7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 2017 in the following terms: ...I am accepting OTS Terms & Conditions and oblige the same. I further undertake to agree for consent order to be passed in the Tribunal/Court for which I /We will co-operate to pass the consent order and in case of failure to attend for passing the consent order your bank is at liberty to present the said affidavit in the concerned Tribunal/Court for passing the consent order. I/Co-borrowers/Directors/Partners/Guarantors will withdraw all the cases filed by me/us in DRT/High Court/Any other courts against your bank. If I/we failed to withdraw the same your bank is at liberty to file the present affidavit for dismissal/withdrawal of the pending cases. If I/we failed to comply with any Terms & Conditions of the OTS, your bank can continue the SARFAESI Proceedings. Pursuant thereto, on 12 June 2017, the Bank recorded that it had closed the loan account on receipt of the amount in terms of the compromise settlement. 8. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire.
### Response:
1
### Explanation:
7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 20178. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire.
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Dharampal Vs. State of Uttar Pradesh | 2 to 4 had been caused by friction against a hard substance. On internal examination the doctor acted that the peritoneum was found cut under injury No. 1, cutting mesenteric vessels in greater omentum. The abdominal cavity contained about 1 1/2 pint blood. The left lobe of liver was cut to the extent of 3/4". In opinion of the doctor the death of Abhay Ram was due to shock and hemorrhage as a result of injury to liver and mesenteric vessels and that injury No. 1 was sufficient in the ordinary course of nature to cause death.4. The plea of the appellant was that when the Lekhpal was making measurement of the land, Mukhtayar Singh claimed certain portion of the land to be allotted to his Chak and that was opposed by him, his father and others. As a result hot words were exchanged between him and Mukhtayar Singh. Some time later Mukhtayar Singh, Abhay Ram and five other came to the field when the appellant was engaged in cutting sugarcane along with his father Gurji and his brother Sher Singh. Mukhtayar Singh and others who were armed with lathis started assaulting the appellant and his father and brothers. He further pleaded that in self-defence he wielded a lathis that he had. He denied that he had a spear or that he pierced the abdomen of Abhay Ram as alleged by the prosecution. The learned Sessions Judge has disbelieved and defence plea. He has found that the case of the prosecution is fully established and that the appellant, along with his father, brothers and two others bad formed an unlawful assembly with the common object of assaulting Abhay Ram and others and far this purpose they came fully armed with the intention of assaulting them. The Sessions Judge has further found that the appellant was armed with a spear and that he pierced the abdomen of Abhay Ram with that spear, and as a result of the injuries caused by the appellant Abhay Ram died immediately. The learned Sessions Judge has also found that Mukhtayar Singh, Abhay Ram and others, except protesting against the act of the appellant and his group in trying to disturb the boundary fixed by the Lekhpal, did not act aggressively or violently in any manner. The further view of the learned Sessions Judge is that the plea of the appellant that he and his group were attacked by Mukhtayar Singh, Abhay Ram and others is absolutely false. On these findings the learned Sessions Judge held that the appellant was guilty of an offence under Section 302, I.P.C., for causing the death of Abhay Ram. The learned Judge has further held that the appellant does not deserve any leniency and, as such, he was awarded the death sentence.5. The High Court has agreed with all the conclusions arrived at by the learned Sessions Judge. It has held, agreeing with the Trial Court, that the appellant and his group were the aggressors and that it was as a result of the injury caused by the appellant with the spear that Abhay Ram died. The High Court also saw no extenuating circumstance to interfere with the sentence of death awarded to the appellant.6. Before us, Mr. Nuruddin Ahmed stressed rather strenuously that the appellants case deserves consideration at the hands of the Court and that the alternative sentence of imprisonment for life would meet the ends of justice. In this connection the counsel pointed out that the appellant was a young man of about 22 years and he might have been swayed to act as he did because of the influence of his father and elder brothers. He pointed out that only one single blow was given and the appellant might not have intended to cause the death of Abhay Ram. The incident itself was rather too trivial and the appellants aged father and his three brothers had all been punished in connection with the incident. In view of all these circumstances, a very serious appeal was made by the learned counsel for altering the sentence of death.7. Mr. Rana, learned counsel appearing for the State, has drawn our attention to the fact that it is not as if that the appellant acted on the spur of the moment nor is there anything in the evidence to show that he acted under grave and sudden provocation. On the other hand, as found by the learned Sessions Judge and the High Court, the appellant along with his brothers, after exchanging hot words went and brought spears and other weapons and the appellant, without any justification whatsoever, inflicted an injury with the spear on Abhay Ram who was totally unarmed. The medical evidence, Mr. Rana pointed out, clearly showed that the injury caused by the spear was sufficient, in the ordinary course of nature, to cause death.8. We have given due consideration to the aspects mentioned by Mr. Nuruddin Ahmed, but we see no reason to interfere with the sentence of death. There is nothing to show that the appellant was in any way goaded or induced to act in the manner he did, by his father and brothers. On the other hand the evidence discloses that the appellant has been very aggressive from the very beginning in picking up a quarrel with Mukhtayar Singh and his group. He had gone to the engine shed purposely with a view to equip himself with a weapon for the purpose of attacking the opposite group and that is evidence from the fact that he came back along with his brothers armed with a spear. Without anything more, he suddenly inflicted a very serious injury in the abdomen of Abhay Ram who was defenceless and unarmed. The fact that he gave only a single blow with the spear is not a circumstance which will mitigate the offence in view of the medical opinion that the particular spear injury caused by the appellant is sufficient, in the ordinary course of nature, to cause death. | 0[ds]8. We have given due consideration to the aspects mentioned by Mr. Nuruddin Ahmed, but we see no reason to interfere with the sentence of death. There is nothing to show that the appellant was in any way goaded or induced to act in the manner he did, by his father and brothers. On the other hand the evidence discloses that the appellant has been very aggressive from the very beginning in picking up a quarrel with Mukhtayar Singh and his group. He had gone to the engine shed purposely with a view to equip himself with a weapon for the purpose of attacking the opposite group and that is evidence from the fact that he came back along with his brothers armed with a spear. Without anything more, he suddenly inflicted a very serious injury in the abdomen of Abhay Ram who was defenceless and unarmed. The fact that he gave only a single blow with the spear is not a circumstance which will mitigate the offence in view of the medical opinion that the particular spear injury caused by the appellant is sufficient, in the ordinary course of nature, to cause death. | 0 | 1,731 | 210 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
2 to 4 had been caused by friction against a hard substance. On internal examination the doctor acted that the peritoneum was found cut under injury No. 1, cutting mesenteric vessels in greater omentum. The abdominal cavity contained about 1 1/2 pint blood. The left lobe of liver was cut to the extent of 3/4". In opinion of the doctor the death of Abhay Ram was due to shock and hemorrhage as a result of injury to liver and mesenteric vessels and that injury No. 1 was sufficient in the ordinary course of nature to cause death.4. The plea of the appellant was that when the Lekhpal was making measurement of the land, Mukhtayar Singh claimed certain portion of the land to be allotted to his Chak and that was opposed by him, his father and others. As a result hot words were exchanged between him and Mukhtayar Singh. Some time later Mukhtayar Singh, Abhay Ram and five other came to the field when the appellant was engaged in cutting sugarcane along with his father Gurji and his brother Sher Singh. Mukhtayar Singh and others who were armed with lathis started assaulting the appellant and his father and brothers. He further pleaded that in self-defence he wielded a lathis that he had. He denied that he had a spear or that he pierced the abdomen of Abhay Ram as alleged by the prosecution. The learned Sessions Judge has disbelieved and defence plea. He has found that the case of the prosecution is fully established and that the appellant, along with his father, brothers and two others bad formed an unlawful assembly with the common object of assaulting Abhay Ram and others and far this purpose they came fully armed with the intention of assaulting them. The Sessions Judge has further found that the appellant was armed with a spear and that he pierced the abdomen of Abhay Ram with that spear, and as a result of the injuries caused by the appellant Abhay Ram died immediately. The learned Sessions Judge has also found that Mukhtayar Singh, Abhay Ram and others, except protesting against the act of the appellant and his group in trying to disturb the boundary fixed by the Lekhpal, did not act aggressively or violently in any manner. The further view of the learned Sessions Judge is that the plea of the appellant that he and his group were attacked by Mukhtayar Singh, Abhay Ram and others is absolutely false. On these findings the learned Sessions Judge held that the appellant was guilty of an offence under Section 302, I.P.C., for causing the death of Abhay Ram. The learned Judge has further held that the appellant does not deserve any leniency and, as such, he was awarded the death sentence.5. The High Court has agreed with all the conclusions arrived at by the learned Sessions Judge. It has held, agreeing with the Trial Court, that the appellant and his group were the aggressors and that it was as a result of the injury caused by the appellant with the spear that Abhay Ram died. The High Court also saw no extenuating circumstance to interfere with the sentence of death awarded to the appellant.6. Before us, Mr. Nuruddin Ahmed stressed rather strenuously that the appellants case deserves consideration at the hands of the Court and that the alternative sentence of imprisonment for life would meet the ends of justice. In this connection the counsel pointed out that the appellant was a young man of about 22 years and he might have been swayed to act as he did because of the influence of his father and elder brothers. He pointed out that only one single blow was given and the appellant might not have intended to cause the death of Abhay Ram. The incident itself was rather too trivial and the appellants aged father and his three brothers had all been punished in connection with the incident. In view of all these circumstances, a very serious appeal was made by the learned counsel for altering the sentence of death.7. Mr. Rana, learned counsel appearing for the State, has drawn our attention to the fact that it is not as if that the appellant acted on the spur of the moment nor is there anything in the evidence to show that he acted under grave and sudden provocation. On the other hand, as found by the learned Sessions Judge and the High Court, the appellant along with his brothers, after exchanging hot words went and brought spears and other weapons and the appellant, without any justification whatsoever, inflicted an injury with the spear on Abhay Ram who was totally unarmed. The medical evidence, Mr. Rana pointed out, clearly showed that the injury caused by the spear was sufficient, in the ordinary course of nature, to cause death.8. We have given due consideration to the aspects mentioned by Mr. Nuruddin Ahmed, but we see no reason to interfere with the sentence of death. There is nothing to show that the appellant was in any way goaded or induced to act in the manner he did, by his father and brothers. On the other hand the evidence discloses that the appellant has been very aggressive from the very beginning in picking up a quarrel with Mukhtayar Singh and his group. He had gone to the engine shed purposely with a view to equip himself with a weapon for the purpose of attacking the opposite group and that is evidence from the fact that he came back along with his brothers armed with a spear. Without anything more, he suddenly inflicted a very serious injury in the abdomen of Abhay Ram who was defenceless and unarmed. The fact that he gave only a single blow with the spear is not a circumstance which will mitigate the offence in view of the medical opinion that the particular spear injury caused by the appellant is sufficient, in the ordinary course of nature, to cause death.
### Response:
0
### Explanation:
8. We have given due consideration to the aspects mentioned by Mr. Nuruddin Ahmed, but we see no reason to interfere with the sentence of death. There is nothing to show that the appellant was in any way goaded or induced to act in the manner he did, by his father and brothers. On the other hand the evidence discloses that the appellant has been very aggressive from the very beginning in picking up a quarrel with Mukhtayar Singh and his group. He had gone to the engine shed purposely with a view to equip himself with a weapon for the purpose of attacking the opposite group and that is evidence from the fact that he came back along with his brothers armed with a spear. Without anything more, he suddenly inflicted a very serious injury in the abdomen of Abhay Ram who was defenceless and unarmed. The fact that he gave only a single blow with the spear is not a circumstance which will mitigate the offence in view of the medical opinion that the particular spear injury caused by the appellant is sufficient, in the ordinary course of nature, to cause death.
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KALINDI DAMODAR GARDE(D) BY LRS Vs. MANOHAR LAXMAN KULKARNI AND ORS | sections 15 and 16 of the Hindu Succession Act. xx xx xx In my opinion, the fictional severance of ties with the natural family would not mean that her children would cease to be her children or can be considered to be not her children by means of a legal fiction. If by virtue of the definition in Section 3(j) even the illegitimate children of a Hindu female have been given a right to inherit her property, then it would not be permissible to say that her legitimate children should be excluded because they were born to her prior to the date of her husbands adoption. If, however, the Legislature had specifically provided for this, then effect must be given to such a provision and the wishes of the Legislature respected. Where, however, there is no such clear provision, such exclusion would appear to be against the plain language of the enactment and it would not be proper to come to any such conclusion. 18. It was found that the Privy Council decision reported as Tewari Raghuraj Chandra & Ors. v. Rani Subhadra Kunwar & Ors. AIR 1928 PC 87 does not afford any guidance to the question as to whether the legitimate children born prior to adoption would cease to be included in the category of her children. 19. The Division Bench of Bombay High Court in Kausalyabai W/o Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh (1978) 16 Mh.L.J. 357 while examining the right of a daughter born to an adoptee before his adoption, on the question as to whether she is entitled to inherit the estate of her father after the commencement of the Act, held as under: 33. Mr. Paranjpe fairly stated that he could not find any authority taking the view that such a daughter would cease to be the daughter of her father because of his adoption. As far as we are aware, there is no text of any Dharmashashtra, which lays down that a daughter ceases to be a daughter the moment her father is given in adoption. 34. The blood relation of the daughter and the father continued till the Hindu Succession Act came into force; and hence we are of the view that Mr. Deos contention that the daughter, the defendant, was entitled to ?th share in the suit lands, having regard to the provisions contained in ss. 8 and 15(b) read with s. 10, R. 1, must be upheld. The decree must, therefore, follow in favour of the plaintiff; only to the extent of ?th share in the suit lands. 20. Similar view has been taken by the Division Bench of the Karnataka High Court in a judgment reported as Smt. Neelawwa v. Smt. 7 8 Shivawwa AIR 1989 Karnataka 45 wherein, the daughter of deceased Mallappa claimed half share in the suit property and the defendant claimed her right as a widow, being the step mother of the plaintiff. However, the defendant alleged that the plaintiff was born prior to the adoption. Mallappa was given in adoption in the year 1939 whereas the plaintiff was born in the year 1937. In this case, the Court held as under: 9……………………..In our view it means and includes moveable and immoveable property, whether separate or self acquired or an interest in a Mitakshara Coparcenary property provided he has left him surviving any of the female heir or a daughters son mentioned in Class I of the Schedule to the Act. The fact that the deceased Mallappa had come to own and possess the suit land by reason of his adoption did not make any difference for the purpose of Section 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she was born before he was given in adoption. The expressions heir and related are also defined in Section 3(f) and (j) respectively of the Act. Heir means any person male or female who is entitled to succeed to the property of an intestate under the Act. Related means related by legitimate kinship. The proviso to this definition is not relevant for our purpose, because it is not in dispute that the plaintiff is the legitimate daughter of the deceased Mallappa born through his 1st wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not severe the tie of blood relationship between him and the plaintiff, or for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the daughter of Mallappa. Thus the plaintiff being the daughter falls in the category of heirs specified in Class I of the Schedule to the Act…………… 21. In view of the provisions of the Act which do not make any distinction between the son born to a father prior or after adoption of his father and that there is no provision which bars the natural born son to inherit the property of his natural father, therefore, the High Court has rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench judgment of Bombay High Court in Martand Jiwajee Patil, it has been held that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption. All the children of Laxman are entitled to inherit the property of their natural father and mother in accordance with the provisions of the Act as succession has opened after the death of Laxman in 1987 and subsequently the mother in the year 1992. | 0[ds]13. Since the succession has opened after the death of Laxman on 10 th January, 1987, therefore, succession has to be in accordance with the Act and not as per Hindu law as all text, rule or interpretation of Hindu law prior to commencement of the Act have ceased to have any effect unless expressly provided for in the said Act. This Court in a Judgment reported as Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613 held that a bare perusal of Section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of Hindu Succession Act with respect to any matter for which provision is made in the Act14. The principle that the Act will be applicable on the date succession opens is well settled15. Since there is no provision of denying the rights of succession to the natural born son of an adoptee father, therefore, the succession will be in terms of the provisions of the Act alone16. It may be noticed that the three sons and Kalindi are born to Laxman and his wife Padmavati. They are agnates and related by full blood in terms of Section 3(a) and 3(e) of the Act. As per the Schedule to the Act, the son and the daughter of a deceased Hindu male are class I heirs20. Similar view has been taken by the Division Bench of the Karnataka High Court in a judgment reported as Smt. Neelawwa v. Smt. 7Shivawwa AIR 1989 Karnataka 45 wherein, the daughter of deceased Mallappa claimed half share in the suit property and the defendant claimed her right as a widow, being the step mother of the plaintiff. However, the defendant alleged that the plaintiff was born prior to the adoption. Mallappa was given in adoption in the year 1939 whereas the plaintiff was born in the year 1937. In this case, the Court held as under:9……………………..In our view it means and includes moveable and immoveable property, whether separate or self acquired or an interest in a Mitakshara Coparcenary property provided he has left him surviving any of the female heir or a daughters son mentioned in Class I of the Schedule to the Act. The fact that the deceased Mallappa had come to own and possess the suit land by reason of his adoption did not make any difference for the purpose of Section 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she was born before he was given in adoption. The expressions heir and related are also defined in Section 3(f) and (j) respectively of the Act. Heir means any person male or female who is entitled to succeed to the property of an intestate under the Act. Related means related by legitimate kinship. The proviso to this definition is not relevant for our purpose, because it is not in dispute that the plaintiff is the legitimate daughter of the deceased Mallappa born through his 1st wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not severe the tie of blood relationship between him and the plaintiff, or for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the daughter of Mallappa. Thus the plaintiff being the daughter falls in the category of heirs specified in Class I of the Schedule to the Act……………21. In view of the provisions of the Act which do not make any distinction between the son born to a father prior or after adoption of his father and that there is no provision which bars the natural born son to inherit the property of his natural father, therefore, the High Court has rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench judgment of Bombay High Court in Martand Jiwajee Patil, it has been held that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption. All the children of Laxman are entitled to inherit the property of their natural father and mother in accordance with the provisions of the Act as succession has opened after the death of Laxman in 1987 and subsequently the mother in the year 1992. | 0 | 4,852 | 873 | ### 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:
sections 15 and 16 of the Hindu Succession Act. xx xx xx In my opinion, the fictional severance of ties with the natural family would not mean that her children would cease to be her children or can be considered to be not her children by means of a legal fiction. If by virtue of the definition in Section 3(j) even the illegitimate children of a Hindu female have been given a right to inherit her property, then it would not be permissible to say that her legitimate children should be excluded because they were born to her prior to the date of her husbands adoption. If, however, the Legislature had specifically provided for this, then effect must be given to such a provision and the wishes of the Legislature respected. Where, however, there is no such clear provision, such exclusion would appear to be against the plain language of the enactment and it would not be proper to come to any such conclusion. 18. It was found that the Privy Council decision reported as Tewari Raghuraj Chandra & Ors. v. Rani Subhadra Kunwar & Ors. AIR 1928 PC 87 does not afford any guidance to the question as to whether the legitimate children born prior to adoption would cease to be included in the category of her children. 19. The Division Bench of Bombay High Court in Kausalyabai W/o Jagdeorao v. Devkabai W/o Jaiwantrao Deshmukh (1978) 16 Mh.L.J. 357 while examining the right of a daughter born to an adoptee before his adoption, on the question as to whether she is entitled to inherit the estate of her father after the commencement of the Act, held as under: 33. Mr. Paranjpe fairly stated that he could not find any authority taking the view that such a daughter would cease to be the daughter of her father because of his adoption. As far as we are aware, there is no text of any Dharmashashtra, which lays down that a daughter ceases to be a daughter the moment her father is given in adoption. 34. The blood relation of the daughter and the father continued till the Hindu Succession Act came into force; and hence we are of the view that Mr. Deos contention that the daughter, the defendant, was entitled to ?th share in the suit lands, having regard to the provisions contained in ss. 8 and 15(b) read with s. 10, R. 1, must be upheld. The decree must, therefore, follow in favour of the plaintiff; only to the extent of ?th share in the suit lands. 20. Similar view has been taken by the Division Bench of the Karnataka High Court in a judgment reported as Smt. Neelawwa v. Smt. 7 8 Shivawwa AIR 1989 Karnataka 45 wherein, the daughter of deceased Mallappa claimed half share in the suit property and the defendant claimed her right as a widow, being the step mother of the plaintiff. However, the defendant alleged that the plaintiff was born prior to the adoption. Mallappa was given in adoption in the year 1939 whereas the plaintiff was born in the year 1937. In this case, the Court held as under: 9……………………..In our view it means and includes moveable and immoveable property, whether separate or self acquired or an interest in a Mitakshara Coparcenary property provided he has left him surviving any of the female heir or a daughters son mentioned in Class I of the Schedule to the Act. The fact that the deceased Mallappa had come to own and possess the suit land by reason of his adoption did not make any difference for the purpose of Section 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she was born before he was given in adoption. The expressions heir and related are also defined in Section 3(f) and (j) respectively of the Act. Heir means any person male or female who is entitled to succeed to the property of an intestate under the Act. Related means related by legitimate kinship. The proviso to this definition is not relevant for our purpose, because it is not in dispute that the plaintiff is the legitimate daughter of the deceased Mallappa born through his 1st wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not severe the tie of blood relationship between him and the plaintiff, or for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the daughter of Mallappa. Thus the plaintiff being the daughter falls in the category of heirs specified in Class I of the Schedule to the Act…………… 21. In view of the provisions of the Act which do not make any distinction between the son born to a father prior or after adoption of his father and that there is no provision which bars the natural born son to inherit the property of his natural father, therefore, the High Court has rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench judgment of Bombay High Court in Martand Jiwajee Patil, it has been held that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption. All the children of Laxman are entitled to inherit the property of their natural father and mother in accordance with the provisions of the Act as succession has opened after the death of Laxman in 1987 and subsequently the mother in the year 1992.
### Response:
0
### Explanation:
13. Since the succession has opened after the death of Laxman on 10 th January, 1987, therefore, succession has to be in accordance with the Act and not as per Hindu law as all text, rule or interpretation of Hindu law prior to commencement of the Act have ceased to have any effect unless expressly provided for in the said Act. This Court in a Judgment reported as Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613 held that a bare perusal of Section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of Hindu Succession Act with respect to any matter for which provision is made in the Act14. The principle that the Act will be applicable on the date succession opens is well settled15. Since there is no provision of denying the rights of succession to the natural born son of an adoptee father, therefore, the succession will be in terms of the provisions of the Act alone16. It may be noticed that the three sons and Kalindi are born to Laxman and his wife Padmavati. They are agnates and related by full blood in terms of Section 3(a) and 3(e) of the Act. As per the Schedule to the Act, the son and the daughter of a deceased Hindu male are class I heirs20. Similar view has been taken by the Division Bench of the Karnataka High Court in a judgment reported as Smt. Neelawwa v. Smt. 7Shivawwa AIR 1989 Karnataka 45 wherein, the daughter of deceased Mallappa claimed half share in the suit property and the defendant claimed her right as a widow, being the step mother of the plaintiff. However, the defendant alleged that the plaintiff was born prior to the adoption. Mallappa was given in adoption in the year 1939 whereas the plaintiff was born in the year 1937. In this case, the Court held as under:9……………………..In our view it means and includes moveable and immoveable property, whether separate or self acquired or an interest in a Mitakshara Coparcenary property provided he has left him surviving any of the female heir or a daughters son mentioned in Class I of the Schedule to the Act. The fact that the deceased Mallappa had come to own and possess the suit land by reason of his adoption did not make any difference for the purpose of Section 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she was born before he was given in adoption. The expressions heir and related are also defined in Section 3(f) and (j) respectively of the Act. Heir means any person male or female who is entitled to succeed to the property of an intestate under the Act. Related means related by legitimate kinship. The proviso to this definition is not relevant for our purpose, because it is not in dispute that the plaintiff is the legitimate daughter of the deceased Mallappa born through his 1st wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not severe the tie of blood relationship between him and the plaintiff, or for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the daughter of Mallappa. Thus the plaintiff being the daughter falls in the category of heirs specified in Class I of the Schedule to the Act……………21. In view of the provisions of the Act which do not make any distinction between the son born to a father prior or after adoption of his father and that there is no provision which bars the natural born son to inherit the property of his natural father, therefore, the High Court has rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench judgment of Bombay High Court in Martand Jiwajee Patil, it has been held that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption. All the children of Laxman are entitled to inherit the property of their natural father and mother in accordance with the provisions of the Act as succession has opened after the death of Laxman in 1987 and subsequently the mother in the year 1992.
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Patasi Devi Vs. State Of Haryana | respondent No. 6 and the land of the petitioner is surrounded by the land of Sun City by three sides and cannot be choose for any purpose except to acquire the same and hand over it to the respondent No. 6 and the acquisition proceedings are not meant for public purpose in true sense and the authorities are bent upon to help the respondent No. 6 in an illegal and arbitrary manner.” In the counter affidavit filed by Land Acquisition Collector, Urban Estates, Haryana, Rohtak on behalf of respondent Nos.1 and 3, it was claimed that the procedural requirement contained in Sections 4 and 6 of the Act had been fully satisfied and reference to Section 17(1) in the declaration issued under Section 6 was a mistake and further that no discrimination had been practised in acquiring the land. However, it was not denied that the appellants land is surrounded by the land of respondent No.6, who was developing residential colony under the name and style Sun City and earlier also the land acquired for the development of Sector 36, Rohtak was transferred to respondent No.6. This shows that in the guise of acquiring land for a public purpose, the State Government had acquired the land for being handed over to the private coloniser. In other words, the State Government had misused the provisions of Sections 4 and 6 of the Act for making land available to a private developer. We may hasten to add that if the land was to be acquired for a company, then the official respondents were bound to comply with the provisions contained in Chapter 7 of the Act, which was admittedly not done in the instant case. We also find merit in the appellants plea that the official respondents are guilty of practising discrimination in the matter of release of land. In paragraphs 6(v) and 6(vi) of the writ petition the appellant had made the following averments: “6(v) That the petitioner who is having only small piece of land/ residential house would be deprived of the roof and the construction made by the petitioner is of A Class and has been raised prior to the issuance of Notification u/s 4 of the Act i.e. 15.12.2006. Photographs showing construction of the House of A Class, is annexed herewith as Annexure P/5. As per the policy of the State Government dated 30.9.2007, copy of which is annexed as Annexure P/6, the structure which have been constructed prior to the issuance of the notification u/s 4 and is inhabited could be released u/s 48(1) of the Act ibid but the respondents have ignored its own instructions and for releasing the land the pick and choose policy has been adopted by the authorities and the land of M/s Sharad Farm and Holdings Pvt. Ltd. has also been released arbitrarily after notification u/s 6 of the Act as is reflected from letter dated 4.9.2008, copy of which is annexed as Annexure P/7 and furthermore the constructed house of the petitioner has been acquired but the vacant land of some influential person have been left out and the State Government is not justified in acquiring the land in question for further handing over the same to the private developers for commercial gains at the cost of the life/livelihood of the petitioner and the impugned notification has not been issued for a bonafide purpose and is a result of connivance of the authorities with the respondent No. 4 to 6 and it is not permissible under law. The release of land of the petitioner would not create any hurdle in the scheme of the respondents. 6(vi) That the construction of the house of the petitioner is prior to the notification u/s 4 of the Land Acquisition Act. The Land Acquisition Collector in similar circumstances also recommended the release of the land and the same was not included while issuing the notification u/s 6 of the Land Acquisition Act and it has been incorporated while issuing notices u/s 9 of the Act ibid, copy of recommendations of the L.A.C is attached herewith as Annexure P/8. There is, thus, a total non-application of mind. According to the notification u/s 6 ibid Killa No. 23(7-12) is stated to have been acquired but while in the notice under Section 9 of the Act ibid whole of the area has been shown to have been acquired. Even the recommendations of the L.A.C. for release of the constructed area has also been ignored without any basis.” In the counter affidavit filed on behalf of respondent Nos.1 and 3, the above reproduced averments were not denied. This is evinced from paragraphs 6(v) and 6(vi) of the counter affidavit, which are extracted below: “6(v). That the contents of Para no. 6(v) of the civil writ Petition are wrong and denied. However, the state Govt, has absolute right to acquire the land for public purpose and the disputed land is also being acquired for serving public purpose i.e. Sector-36 Rohtak. However petitioner has never filed the objection regarding his house. 6(vi). That the contents of para no. 6(vi) of the civil writ petition are wrong and denied. However, it is submitted that there exists a public purpose for which the land has been acquired and there is no illegality or infirmity in the decision of the state. No discrimination has been done with any of the land owners.” Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellants land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of land on which construction had been raised prior to Section 4 notification. The appellants case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s. Sharad Farm and Holdings Pvt. Ltd. | 1[ds]we consider it necessary to observe that in the present case no evidence was produced by the official respondents before the High Court to show that possession of the appellants land and the house constructed over it had been taken by the competent authority between 9.12.2009, i.e., the date on which the award was passed and 20.1.2010, i.e., the date on which the writ petition was filed before the High Court. Indeed, it was not even the pleaded case of the official respondents that the house constructed by the appellant was lying vacant on the date of award and some official had put lock over it evidencing the taking over of possession.A somewhat similar question was considered by this Court in Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792 . In that case also, the High Court had non-suited the writ petitioner 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. This Court took cognizance of the entries recorded in khasra girdawari revealed existence of crops on the acquired land andrespondents 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 the pronouncement of the award, possession of the acquired land of Village Jatheri is said to have been 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 scrutinised 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 StateCourt then referred to the judgments in Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited (supra), Star Wire (India) Ltd. v. State of Haryana (supra), C.Padma v. Deputy Secretary to the Government of Tamil Nadu (supra), Municipal Council, Ahmednagar, v. Shah Hyder Beig (supra) and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan (supra), on which reliance has been placed by the High Court andall the cases, challenge to the acquisition proceedings was negatived primarily on the ground of delay. An additional factor which influenced this Court was that physical possession of the acquired land had been taken by the authorities concerned. In none of these cases, the landowners appear to have questioned the legality of the mode adopted by the authorities concerned for taking possession of the acquired land. Therefore, these judgments cannot be relied upon for sustaining the Highnegation of thechallenge to the acquisition of hisview of the above discussion, we hold that the High Court was not right in holding that the writ petition of the appellant was not maintainable because the same was filed after passing of thethis Court it has been pleaded that on the date of issuance of preliminary notification the appellants land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of land on which construction had been raised prior to Section 4 notification. The appellants case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s. Sharad Farm and Holdings Pvt. | 1 | 3,972 | 745 | ### 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:
respondent No. 6 and the land of the petitioner is surrounded by the land of Sun City by three sides and cannot be choose for any purpose except to acquire the same and hand over it to the respondent No. 6 and the acquisition proceedings are not meant for public purpose in true sense and the authorities are bent upon to help the respondent No. 6 in an illegal and arbitrary manner.” In the counter affidavit filed by Land Acquisition Collector, Urban Estates, Haryana, Rohtak on behalf of respondent Nos.1 and 3, it was claimed that the procedural requirement contained in Sections 4 and 6 of the Act had been fully satisfied and reference to Section 17(1) in the declaration issued under Section 6 was a mistake and further that no discrimination had been practised in acquiring the land. However, it was not denied that the appellants land is surrounded by the land of respondent No.6, who was developing residential colony under the name and style Sun City and earlier also the land acquired for the development of Sector 36, Rohtak was transferred to respondent No.6. This shows that in the guise of acquiring land for a public purpose, the State Government had acquired the land for being handed over to the private coloniser. In other words, the State Government had misused the provisions of Sections 4 and 6 of the Act for making land available to a private developer. We may hasten to add that if the land was to be acquired for a company, then the official respondents were bound to comply with the provisions contained in Chapter 7 of the Act, which was admittedly not done in the instant case. We also find merit in the appellants plea that the official respondents are guilty of practising discrimination in the matter of release of land. In paragraphs 6(v) and 6(vi) of the writ petition the appellant had made the following averments: “6(v) That the petitioner who is having only small piece of land/ residential house would be deprived of the roof and the construction made by the petitioner is of A Class and has been raised prior to the issuance of Notification u/s 4 of the Act i.e. 15.12.2006. Photographs showing construction of the House of A Class, is annexed herewith as Annexure P/5. As per the policy of the State Government dated 30.9.2007, copy of which is annexed as Annexure P/6, the structure which have been constructed prior to the issuance of the notification u/s 4 and is inhabited could be released u/s 48(1) of the Act ibid but the respondents have ignored its own instructions and for releasing the land the pick and choose policy has been adopted by the authorities and the land of M/s Sharad Farm and Holdings Pvt. Ltd. has also been released arbitrarily after notification u/s 6 of the Act as is reflected from letter dated 4.9.2008, copy of which is annexed as Annexure P/7 and furthermore the constructed house of the petitioner has been acquired but the vacant land of some influential person have been left out and the State Government is not justified in acquiring the land in question for further handing over the same to the private developers for commercial gains at the cost of the life/livelihood of the petitioner and the impugned notification has not been issued for a bonafide purpose and is a result of connivance of the authorities with the respondent No. 4 to 6 and it is not permissible under law. The release of land of the petitioner would not create any hurdle in the scheme of the respondents. 6(vi) That the construction of the house of the petitioner is prior to the notification u/s 4 of the Land Acquisition Act. The Land Acquisition Collector in similar circumstances also recommended the release of the land and the same was not included while issuing the notification u/s 6 of the Land Acquisition Act and it has been incorporated while issuing notices u/s 9 of the Act ibid, copy of recommendations of the L.A.C is attached herewith as Annexure P/8. There is, thus, a total non-application of mind. According to the notification u/s 6 ibid Killa No. 23(7-12) is stated to have been acquired but while in the notice under Section 9 of the Act ibid whole of the area has been shown to have been acquired. Even the recommendations of the L.A.C. for release of the constructed area has also been ignored without any basis.” In the counter affidavit filed on behalf of respondent Nos.1 and 3, the above reproduced averments were not denied. This is evinced from paragraphs 6(v) and 6(vi) of the counter affidavit, which are extracted below: “6(v). That the contents of Para no. 6(v) of the civil writ Petition are wrong and denied. However, the state Govt, has absolute right to acquire the land for public purpose and the disputed land is also being acquired for serving public purpose i.e. Sector-36 Rohtak. However petitioner has never filed the objection regarding his house. 6(vi). That the contents of para no. 6(vi) of the civil writ petition are wrong and denied. However, it is submitted that there exists a public purpose for which the land has been acquired and there is no illegality or infirmity in the decision of the state. No discrimination has been done with any of the land owners.” Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellants land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of land on which construction had been raised prior to Section 4 notification. The appellants case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s. Sharad Farm and Holdings Pvt. Ltd.
### Response:
1
### Explanation:
we consider it necessary to observe that in the present case no evidence was produced by the official respondents before the High Court to show that possession of the appellants land and the house constructed over it had been taken by the competent authority between 9.12.2009, i.e., the date on which the award was passed and 20.1.2010, i.e., the date on which the writ petition was filed before the High Court. Indeed, it was not even the pleaded case of the official respondents that the house constructed by the appellant was lying vacant on the date of award and some official had put lock over it evidencing the taking over of possession.A somewhat similar question was considered by this Court in Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792 . In that case also, the High Court had non-suited the writ petitioner 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. This Court took cognizance of the entries recorded in khasra girdawari revealed existence of crops on the acquired land andrespondents 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 the pronouncement of the award, possession of the acquired land of Village Jatheri is said to have been 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 scrutinised 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 StateCourt then referred to the judgments in Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited (supra), Star Wire (India) Ltd. v. State of Haryana (supra), C.Padma v. Deputy Secretary to the Government of Tamil Nadu (supra), Municipal Council, Ahmednagar, v. Shah Hyder Beig (supra) and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan (supra), on which reliance has been placed by the High Court andall the cases, challenge to the acquisition proceedings was negatived primarily on the ground of delay. An additional factor which influenced this Court was that physical possession of the acquired land had been taken by the authorities concerned. In none of these cases, the landowners appear to have questioned the legality of the mode adopted by the authorities concerned for taking possession of the acquired land. Therefore, these judgments cannot be relied upon for sustaining the Highnegation of thechallenge to the acquisition of hisview of the above discussion, we hold that the High Court was not right in holding that the writ petition of the appellant was not maintainable because the same was filed after passing of thethis Court it has been pleaded that on the date of issuance of preliminary notification the appellants land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of land on which construction had been raised prior to Section 4 notification. The appellants case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s. Sharad Farm and Holdings Pvt.
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Aries and Aries Vs. Tamil Nadu Electricity Board | to the learned Counsel, the suit having been filed on 6th November, 1984 is within limitation as provided for Under Article 113 of the Limitation Act, 1963.6. Learned Counsel for the Appellant has further argued that insofar as the claim for escalation on account of materials and labour is concerned, the same has been rejected on the ground that the Plaintiff is responsible for the delay and allowing any such escalation would be contrary to the express term of the agreement which provides that the rates offered by the Plaintiff would remain firm for the entire duration of the contract. Learned Counsel has argued that this finding is opposed to the admitted case of the Defendant that it is the Defendant who was responsible for a part of the delay (19 1/2 months) that has occurred in the execution of the work. Therefore, according to the learned Counsel, the learned trial Court was perfectly justified in awarding escalation at the rate of 50% which has been wrongly reversed by the High Court.7. Opposing the contentions advanced on behalf of the Appellant - Plaintiff, Shri K. Ramamoorthy, learned Senior Counsel appearing for the Respondent - Defendant (Tamil Nadu Electricity Board) has submitted that the Plaintiff having taken full and final payment of all amounts due on 13th January, 1981, the suit ought to have been filed within three years of the said date. The same having not been done and the suit having been filed on 6th November, 1984 is clearly barred by limitation. The crucial date, whatever be the perspective adopted, is the date of the final payment i.e. 13th January, 1981. Therefore, according to the learned Counsel for the Respondent - Defendant, the High Court was perfectly justified in coming to its conclusion that the suit is barred by limitation. Accordingly, learned Counsel for the Respondent submits that no other issue need be gone into in the present appeal by this Court.8. We have considered the submissions of the parties.9. Article 18 of the Limitation Act, 1963 provides for tiling of a suit for recovery of money for work done by the Plaintiff, within three years from the date when the work is done, in a situation where no time has been fixed for payment. Article 55 of the Limitation Act, 1963 on the other hand, provides for limitation of three years from the date of breach of a contract in a case of a suit for compensation for damages arising out of such breach. Article 113 of the Limitation Act, 1963 is the residuary provision which provides for a suit to be instituted within three years from the date when the right to sue accrues.10. In the present case, de hors the correspondences that had been exchanged by and between the parties after the date of final payment i.e. 13th January, 1981, the aforesaid date of final payment would have been crucial for determination of the period of limitation for filing the instant suit. However, in the present case, from the correspondences that had been exchanged after the date of final payment it clearly appears that the Plaintiff after receipt of the payment on 13th January, 1981, reiterated its claim for additional payment on different counts including escalation and for extra works done. The Defendant instead of rejecting the said claim entertained the same and kept the matter pending. Finally on 6th November, 1981 (Exhibit P-2) the said claims were rejected. If the claims raised by the Plaintiff were entertained and rejected finally on 6th November, 1981, it would be reasonable to assume that the cause of action for the suit in respect of the said rejected claims arose on 6th November, 1981 and the suit could have been filed at any point of time prior to the expiry of three years from the said date i.e. 6th November, 1981 in view of Article 113 of the Limitation Act, 1963. The suit having been filed on 6th November, 1984, the same, therefore, will have to be considered to be within the period of limitation. The High Court, therefore, was not justified in holding the contrary.11. This will require the Court to consider the additional plea urged on behalf of the Plaintiff, namely, that the High Court was not justified in reversing the decree passed by the learned trial Court so far as 50% of the escalation charges is concerned.12. The High Court in coming to the aforesaid conclusion took the view that the specific clause in the agreement which obliges the Plaintiff to continue to offer his rates for the entire duration of the contract prohibits grant of the said claim. We have also noticed that it is the Defendants own case that it was responsible for the delay to the extent of nineteen and half (19 1/2) months that had occurred in the execution of the contract whereas the Plaintiff was responsible for the delay of the remaining fifteen and half (15 1/2) months. The said specific admission on the part of the Defendant and the finding arrived at by the High Court on the aforesaid basis could not have permitted the High Court to reverse the decree passed by the learned trial Court on the aforesaid count which coincidentally entitled the Plaintiff to only 50% of the escalation charges, as claimed. The aforesaid percentage (50%) roughly corresponds to the percentage of the delay attributable to the Plaintiff out of the total delay of 35 months. The clause in the contract which obliged the Plaintiff to continue to offer the rates initially offered by him would, naturally, be for the duration of the contract and cannot work to his peril for the period of delay for which the Department was admittedly responsible. Such a construction of the clause in the contract would not be reasonable. We, therefore, reverse the aforesaid finding of the High Court and hold that the Plaintiff would be entitled to the 50% of the escalation charges as decreed by the learned trial Court. | 1[ds]10. In the present case, de hors the correspondences that had been exchanged by and between the parties after the date of final payment i.e. 13th January, 1981, the aforesaid date of final payment would have been crucial for determination of the period of limitation for filing the instant suit. However, in the present case, from the correspondences that had been exchanged after the date of final payment it clearly appears that the Plaintiff after receipt of the payment on 13th January, 1981, reiterated its claim for additional payment on different counts including escalation and for extra works done. The Defendant instead of rejecting the said claim entertained the same and kept the matter pending. Finally on 6th November, 1981 (Exhibit P-2) the said claims were rejected. If the claims raised by the Plaintiff were entertained and rejected finally on 6th November, 1981, it would be reasonable to assume that the cause of action for the suit in respect of the said rejected claims arose on 6th November, 1981 and the suit could have been filed at any point of time prior to the expiry of three years from the said date i.e. 6th November, 1981 in view of Article 113 of the Limitation Act, 1963. The suit having been filed on 6th November, 1984, the same, therefore, will have to be considered to be within the period of limitation. The High Court, therefore, was not justified in holding the contrary12. The High Court in coming to the aforesaid conclusion took the view that the specific clause in the agreement which obliges the Plaintiff to continue to offer his rates for the entire duration of the contract prohibits grant of the said claim. We have also noticed that it is the Defendants own case that it was responsible for the delay to the extent of nineteen and half (19 1/2) months that had occurred in the execution of the contract whereas the Plaintiff was responsible for the delay of the remaining fifteen and half (15 1/2) months. The said specific admission on the part of the Defendant and the finding arrived at by the High Court on the aforesaid basis could not have permitted the High Court to reverse the decree passed by the learned trial Court on the aforesaid count which coincidentally entitled the Plaintiff to only 50% of the escalation charges, as claimed. The aforesaid percentage (50%) roughly corresponds to the percentage of the delay attributable to the Plaintiff out of the total delay of 35 months. The clause in the contract which obliged the Plaintiff to continue to offer the rates initially offered by him would, naturally, be for the duration of the contract and cannot work to his peril for the period of delay for which the Department was admittedly responsible. Such a construction of the clause in the contract would not be reasonable. We, therefore, reverse the aforesaid finding of the High Court and hold that the Plaintiff would be entitled to the 50% of the escalation charges as decreed by the learned trial Court. | 1 | 1,773 | 567 | ### Instruction:
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to the learned Counsel, the suit having been filed on 6th November, 1984 is within limitation as provided for Under Article 113 of the Limitation Act, 1963.6. Learned Counsel for the Appellant has further argued that insofar as the claim for escalation on account of materials and labour is concerned, the same has been rejected on the ground that the Plaintiff is responsible for the delay and allowing any such escalation would be contrary to the express term of the agreement which provides that the rates offered by the Plaintiff would remain firm for the entire duration of the contract. Learned Counsel has argued that this finding is opposed to the admitted case of the Defendant that it is the Defendant who was responsible for a part of the delay (19 1/2 months) that has occurred in the execution of the work. Therefore, according to the learned Counsel, the learned trial Court was perfectly justified in awarding escalation at the rate of 50% which has been wrongly reversed by the High Court.7. Opposing the contentions advanced on behalf of the Appellant - Plaintiff, Shri K. Ramamoorthy, learned Senior Counsel appearing for the Respondent - Defendant (Tamil Nadu Electricity Board) has submitted that the Plaintiff having taken full and final payment of all amounts due on 13th January, 1981, the suit ought to have been filed within three years of the said date. The same having not been done and the suit having been filed on 6th November, 1984 is clearly barred by limitation. The crucial date, whatever be the perspective adopted, is the date of the final payment i.e. 13th January, 1981. Therefore, according to the learned Counsel for the Respondent - Defendant, the High Court was perfectly justified in coming to its conclusion that the suit is barred by limitation. Accordingly, learned Counsel for the Respondent submits that no other issue need be gone into in the present appeal by this Court.8. We have considered the submissions of the parties.9. Article 18 of the Limitation Act, 1963 provides for tiling of a suit for recovery of money for work done by the Plaintiff, within three years from the date when the work is done, in a situation where no time has been fixed for payment. Article 55 of the Limitation Act, 1963 on the other hand, provides for limitation of three years from the date of breach of a contract in a case of a suit for compensation for damages arising out of such breach. Article 113 of the Limitation Act, 1963 is the residuary provision which provides for a suit to be instituted within three years from the date when the right to sue accrues.10. In the present case, de hors the correspondences that had been exchanged by and between the parties after the date of final payment i.e. 13th January, 1981, the aforesaid date of final payment would have been crucial for determination of the period of limitation for filing the instant suit. However, in the present case, from the correspondences that had been exchanged after the date of final payment it clearly appears that the Plaintiff after receipt of the payment on 13th January, 1981, reiterated its claim for additional payment on different counts including escalation and for extra works done. The Defendant instead of rejecting the said claim entertained the same and kept the matter pending. Finally on 6th November, 1981 (Exhibit P-2) the said claims were rejected. If the claims raised by the Plaintiff were entertained and rejected finally on 6th November, 1981, it would be reasonable to assume that the cause of action for the suit in respect of the said rejected claims arose on 6th November, 1981 and the suit could have been filed at any point of time prior to the expiry of three years from the said date i.e. 6th November, 1981 in view of Article 113 of the Limitation Act, 1963. The suit having been filed on 6th November, 1984, the same, therefore, will have to be considered to be within the period of limitation. The High Court, therefore, was not justified in holding the contrary.11. This will require the Court to consider the additional plea urged on behalf of the Plaintiff, namely, that the High Court was not justified in reversing the decree passed by the learned trial Court so far as 50% of the escalation charges is concerned.12. The High Court in coming to the aforesaid conclusion took the view that the specific clause in the agreement which obliges the Plaintiff to continue to offer his rates for the entire duration of the contract prohibits grant of the said claim. We have also noticed that it is the Defendants own case that it was responsible for the delay to the extent of nineteen and half (19 1/2) months that had occurred in the execution of the contract whereas the Plaintiff was responsible for the delay of the remaining fifteen and half (15 1/2) months. The said specific admission on the part of the Defendant and the finding arrived at by the High Court on the aforesaid basis could not have permitted the High Court to reverse the decree passed by the learned trial Court on the aforesaid count which coincidentally entitled the Plaintiff to only 50% of the escalation charges, as claimed. The aforesaid percentage (50%) roughly corresponds to the percentage of the delay attributable to the Plaintiff out of the total delay of 35 months. The clause in the contract which obliged the Plaintiff to continue to offer the rates initially offered by him would, naturally, be for the duration of the contract and cannot work to his peril for the period of delay for which the Department was admittedly responsible. Such a construction of the clause in the contract would not be reasonable. We, therefore, reverse the aforesaid finding of the High Court and hold that the Plaintiff would be entitled to the 50% of the escalation charges as decreed by the learned trial Court.
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10. In the present case, de hors the correspondences that had been exchanged by and between the parties after the date of final payment i.e. 13th January, 1981, the aforesaid date of final payment would have been crucial for determination of the period of limitation for filing the instant suit. However, in the present case, from the correspondences that had been exchanged after the date of final payment it clearly appears that the Plaintiff after receipt of the payment on 13th January, 1981, reiterated its claim for additional payment on different counts including escalation and for extra works done. The Defendant instead of rejecting the said claim entertained the same and kept the matter pending. Finally on 6th November, 1981 (Exhibit P-2) the said claims were rejected. If the claims raised by the Plaintiff were entertained and rejected finally on 6th November, 1981, it would be reasonable to assume that the cause of action for the suit in respect of the said rejected claims arose on 6th November, 1981 and the suit could have been filed at any point of time prior to the expiry of three years from the said date i.e. 6th November, 1981 in view of Article 113 of the Limitation Act, 1963. The suit having been filed on 6th November, 1984, the same, therefore, will have to be considered to be within the period of limitation. The High Court, therefore, was not justified in holding the contrary12. The High Court in coming to the aforesaid conclusion took the view that the specific clause in the agreement which obliges the Plaintiff to continue to offer his rates for the entire duration of the contract prohibits grant of the said claim. We have also noticed that it is the Defendants own case that it was responsible for the delay to the extent of nineteen and half (19 1/2) months that had occurred in the execution of the contract whereas the Plaintiff was responsible for the delay of the remaining fifteen and half (15 1/2) months. The said specific admission on the part of the Defendant and the finding arrived at by the High Court on the aforesaid basis could not have permitted the High Court to reverse the decree passed by the learned trial Court on the aforesaid count which coincidentally entitled the Plaintiff to only 50% of the escalation charges, as claimed. The aforesaid percentage (50%) roughly corresponds to the percentage of the delay attributable to the Plaintiff out of the total delay of 35 months. The clause in the contract which obliged the Plaintiff to continue to offer the rates initially offered by him would, naturally, be for the duration of the contract and cannot work to his peril for the period of delay for which the Department was admittedly responsible. Such a construction of the clause in the contract would not be reasonable. We, therefore, reverse the aforesaid finding of the High Court and hold that the Plaintiff would be entitled to the 50% of the escalation charges as decreed by the learned trial Court.
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Chhitarmal Vs. M/S. Shah Pannalal Chandulal | to July 1, 1951, less Rs. 4, 000 subsequently received by him. The petitioner also claimed a decree for the balance of the price. after giving credit for commission, dalali and godown charges incurred by the respondents as his agents and as he was not in a "position to know" the amounts due to or disbursed by the respondents, he claimed a decree for rendition of account. The subject-matter of the suit was, therefore, a claim for Rs. 10, 665 due to the petitioner on a cause of action arising on cheques dishonoured and a claim for the balance of the price due as may be ascertained on taking accounts. 3. The trial Court passed a decree directing that account be taken for ascertaining the amount due in respect of the entire transaction of 104 bales and for taking accounts appointed a Commissioner. The High Court of Rajasthan reversed the decree passed by the Trial Court and dismissed the suit, holding that the transactions in respect of which the claim was made by the petitioner were those of an unregistered firm constituted by the petitioner and another person named Duli Chand and the suit was barred because the firm was not registered. An application filed by the petitioner for certificate under Art. 133 of the Constitution was rejected by the High Court. 4. The judgment of the High Court proceeds entirely upon appre- ciation of evidence and on the findings recorded the petitioners suit must stand dismissed. But counsel for the petitioner urged that the judgment of the High Court directly involves a claim or question respecting property of value not less than Rs. 20, 000 and he was entitled as a matter of right to a certificate from the High Court under Art. 133(1) (b) of the Constitution. This argument is sought to be presented in two ways. It is urged in the first instance that the judgment of the High Court involves a question relating to the right of the petitioner respecting 104 bales of cotton belonging to him and sold by the respondents for an amount exceeding Rs. 27, 000. Secondly, it is urged that pursuant to the order of the Trial Court a Commissioner was appointed and the Commissioner reported that Rs. 12, 089/14/6 with interest at the rate of 6% per annum from May 14, 1948 were due to the petitioner and as the amount due to the petitioner on that footing was not less than Rs. 20, 000 at the date of the decree of the High Court, the judgment of the High Court involved a claim respecting property of that amount or value. In our view the contention raised by the petitioner under either head has no substance. 5. It is conceded, and in our judgment counsel is right in so conceding, that the petitioner could not seek a certificate under cl. (a) of Art. 133(1). The claim in the court of first instance did not Teach Rs. 20, 000 and one of the conditions for a certificate under that clause being absent, the claim could not be maintained. To attract the application of Art. 133(1) (b) it is essential that there must be-omitting from consideration other conditions not material-a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less that Rs.20, 000. The variation in the language used in cls. (a) and (b) of Art. 133 pointedly highlights the conditions which attract the application of the two clauses. Under cl. (a) what is decisive is the amount or value of the subject-matter in the court of first instance and "still in dispute" in appeal to the Supreme Court: under cl. (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from. The expression "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, cl. (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20, 000 in addition to or other than the subject-matter of the dispute cl. (b) will apply. 6. In the present case the subject-matter in dispute was a claim for money. A part of that claim was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter in dispute of the value of Rs. 20, 000. It was admitted by the petitioner in his plaint that the bales of cotton were sold by the respondents as his agents. The right of the respondents to sell the bales was not in dispute. what was challenged was the right of the respondents to retain the price received by them. It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of property belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold. 7. Nor does the alternative ground assist the petitioner. It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioners claim as awarded under the report of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20, 000. But this is still the subject-matter in dispute the Judgment does not involve any claim or question respecting property in addition to or other than the subject-matter of the suit. | 0[ds]In our view the contention raised by the petitioner under either head has no substanceThe expression "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, cl. (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20, 000 in addition to or other than the subject-matter of the dispute cl. (b) will apply6. In the present case the subject-matter in dispute was a claim for money. A part of that claim was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter in dispute of the value of Rs. 20, 000. It was admitted by the petitioner in his plaint that the bales of cotton were sold by the respondents as his agents. The right of the respondents to sell the bales was not in dispute. what was challenged was the right of the respondents to retain the price received by them. It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of property belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold7. Nor does the alternative ground assist the petitioner. It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioners claim as awarded under the report of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20, 000. But this is still the subject-matter in dispute the Judgment does not involve any claim or question respecting property in addition to or other than the subject-matter of the suit. | 0 | 1,438 | 409 | ### Instruction:
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to July 1, 1951, less Rs. 4, 000 subsequently received by him. The petitioner also claimed a decree for the balance of the price. after giving credit for commission, dalali and godown charges incurred by the respondents as his agents and as he was not in a "position to know" the amounts due to or disbursed by the respondents, he claimed a decree for rendition of account. The subject-matter of the suit was, therefore, a claim for Rs. 10, 665 due to the petitioner on a cause of action arising on cheques dishonoured and a claim for the balance of the price due as may be ascertained on taking accounts. 3. The trial Court passed a decree directing that account be taken for ascertaining the amount due in respect of the entire transaction of 104 bales and for taking accounts appointed a Commissioner. The High Court of Rajasthan reversed the decree passed by the Trial Court and dismissed the suit, holding that the transactions in respect of which the claim was made by the petitioner were those of an unregistered firm constituted by the petitioner and another person named Duli Chand and the suit was barred because the firm was not registered. An application filed by the petitioner for certificate under Art. 133 of the Constitution was rejected by the High Court. 4. The judgment of the High Court proceeds entirely upon appre- ciation of evidence and on the findings recorded the petitioners suit must stand dismissed. But counsel for the petitioner urged that the judgment of the High Court directly involves a claim or question respecting property of value not less than Rs. 20, 000 and he was entitled as a matter of right to a certificate from the High Court under Art. 133(1) (b) of the Constitution. This argument is sought to be presented in two ways. It is urged in the first instance that the judgment of the High Court involves a question relating to the right of the petitioner respecting 104 bales of cotton belonging to him and sold by the respondents for an amount exceeding Rs. 27, 000. Secondly, it is urged that pursuant to the order of the Trial Court a Commissioner was appointed and the Commissioner reported that Rs. 12, 089/14/6 with interest at the rate of 6% per annum from May 14, 1948 were due to the petitioner and as the amount due to the petitioner on that footing was not less than Rs. 20, 000 at the date of the decree of the High Court, the judgment of the High Court involved a claim respecting property of that amount or value. In our view the contention raised by the petitioner under either head has no substance. 5. It is conceded, and in our judgment counsel is right in so conceding, that the petitioner could not seek a certificate under cl. (a) of Art. 133(1). The claim in the court of first instance did not Teach Rs. 20, 000 and one of the conditions for a certificate under that clause being absent, the claim could not be maintained. To attract the application of Art. 133(1) (b) it is essential that there must be-omitting from consideration other conditions not material-a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less that Rs.20, 000. The variation in the language used in cls. (a) and (b) of Art. 133 pointedly highlights the conditions which attract the application of the two clauses. Under cl. (a) what is decisive is the amount or value of the subject-matter in the court of first instance and "still in dispute" in appeal to the Supreme Court: under cl. (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from. The expression "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, cl. (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20, 000 in addition to or other than the subject-matter of the dispute cl. (b) will apply. 6. In the present case the subject-matter in dispute was a claim for money. A part of that claim was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter in dispute of the value of Rs. 20, 000. It was admitted by the petitioner in his plaint that the bales of cotton were sold by the respondents as his agents. The right of the respondents to sell the bales was not in dispute. what was challenged was the right of the respondents to retain the price received by them. It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of property belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold. 7. Nor does the alternative ground assist the petitioner. It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioners claim as awarded under the report of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20, 000. But this is still the subject-matter in dispute the Judgment does not involve any claim or question respecting property in addition to or other than the subject-matter of the suit.
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In our view the contention raised by the petitioner under either head has no substanceThe expression "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, cl. (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20, 000 in addition to or other than the subject-matter of the dispute cl. (b) will apply6. In the present case the subject-matter in dispute was a claim for money. A part of that claim was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter in dispute of the value of Rs. 20, 000. It was admitted by the petitioner in his plaint that the bales of cotton were sold by the respondents as his agents. The right of the respondents to sell the bales was not in dispute. what was challenged was the right of the respondents to retain the price received by them. It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of property belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold7. Nor does the alternative ground assist the petitioner. It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioners claim as awarded under the report of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20, 000. But this is still the subject-matter in dispute the Judgment does not involve any claim or question respecting property in addition to or other than the subject-matter of the suit.
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B. P. Heera & Etc. Etc Vs. C.M. Pradhan & Etc. Etc | Act, how can S. 70 be said to apply to it? asks the learned Attorney-General.It is obvious that S. 4 mentions and applies only to establishments and it has no application to factories and we are dealing with employees in a factory.Indeed as we have already observed, no provision of the Act except S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present case. 21. Incidentally the learned Attorney-General suggested, though faintly, that the establishments mentioned at sr. Nos. 1 to 6 in col. 2 of Sch. II are wider than and different from the establishment as defined by S. 2 (8).We do not think that this suggestion is well-founded. There can be no doubt that Section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of Sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 7 to 55 it is only some provisions of the Act specified in col.3 that are excluded. In other words, the remaining sections not so specified would apply to them. If that is so, they must be and are establishments under S. 2 (8) of the Act. 22. In this connection it must be borne in mind that S. 2 (8) empowers the State Government to include by notification any office or institution within the definition of establishment; and so the inclusion of any such office or institution in col. 2 of sch. II would make it an establishment under the Act, and as such it would be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the suggestion of the learned Attorney-General as to the denotation and character of establishments enumerated in serial Nos. 1 to 5 in col. 2 of sch. II cannot be accepted. All the offices, establishments and other institutions mentioned in col. 2 of sch. II are and must be held to be establishments under S. 2 (8). 23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently of the other provisions of the Act and in that sense it stands apart from them. It is this aspect of the matter which is clarified by the Legislature by laying down in S. 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory. That, however, anticipates the argument on the construction of S. 70. Let us therefore cite the said section and construe it. 24. Section 70 provides that nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the Factories Act shall, notwithstanding anything in the said Act, apply to such person. This section consists of two parts. The first part makes it clear that no provision in the Act shall be deemed to apply to the person specified in it. The Legislature knew that in fact the Act contained no provision which in terms or expressly applies to any such person; but in order to remove any possible doubt it has provided that no provision in the Act shall even by inference or fiction the deemed to apply to them.In other words this clause is intended to clarify the position that though factory has been defined by S. 2 (9) of the Act, no provision of the Act is intended to be applied to a factory or employees in it. Having clarified this position the second part of the section extends the application of the Factories Act to the said persons. 25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act.The said Act contains the provision by which workers are defined under S. 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act in regard to employees in factories.That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt. | 0[ds]It is clear that the duties of the progress time-keepers do not fall within the first part of S. 2 (k)It is true that the finding of the Authority in respect of the timekeepers is against the respondents;If the construction placed on S. 70 of the Act by the Authority is correct, the claims of employees who are working in a factory in the State of Bombay would be governed by that provision; this position is not seriously disputed before usSince we are dealing with the case on the assumption that the respondents are not workers under S. 2 (1) it follows that S. 59 by itself would not be applicable to themIt is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extention of the provisions of the Factories Act to employees in the factories within the territory of the State of Bombay; and since sanction for this legislation has been duly obtained from the Governor-General of India on 3-1-1949 (Published in the Bombay Government Gazette, Part IV, dated 11-1-1949.), no question about any repugnance between the provisions of S. 70 and those of the Factories Act can possibly ariseIt is conceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory; but it seems to us that such an adjunct of an establishment is prima facie not intended by the Act to be treated a part and separately from the main establishment itself, and so it would be taken as a part of the establishment and be governed by the provisions of the Act in relation thereto. The factory where the respondents are employed is not connected with, much less an inseparable adjunct of, any establishment, and so this academic aspect of the matter which was incidentally posed before us by the learned Attorney-General need not be pursued any further in the present appealIt is obvious that S. 4 mentions and applies only to establishments and it has no application to factories and we are dealing with employees in a factory.Indeed as we have already observed, no provision of the Act except S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present caseWe do not think that this suggestion is well-founded. There can be no doubt that Section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of Sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 7 to 55 it is only some provisions of the Act specified in col.3 that are excluded. In other words, the remaining sections not so specified would apply to them. If that is so, they must be and are establishments under S. 2 (8) of the Act22. In this connection it must be borne in mind that S. 2 (8) empowers the State Government to include by notification any office or institution within the definition of establishment; and so the inclusion of any such office or institution in col. 2 of sch. II would make it an establishment under the Act, and as such it would be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the suggestion of the learned Attorney-General as to the denotation and character of establishments enumerated in serial Nos. 1 to 5 in col. 2 of sch. II cannot be accepted. All the offices, establishments and other institutions mentioned in col. 2 of sch. II are and must be held to be establishments under S. 2 (8)23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently of the other provisions of the Act and in that sense it stands apart from them. It is this aspect of the matter which is clarified by the Legislature by laying down in S. 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory. That, however, anticipates the argument on the construction of S. 70. Let us therefore cite the said section and construe it25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act.The said Act contains the provision by which workers are defined under S. 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act in regard to employees in factories.That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt. | 0 | 4,681 | 1,166 | ### 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:
Act, how can S. 70 be said to apply to it? asks the learned Attorney-General.It is obvious that S. 4 mentions and applies only to establishments and it has no application to factories and we are dealing with employees in a factory.Indeed as we have already observed, no provision of the Act except S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present case. 21. Incidentally the learned Attorney-General suggested, though faintly, that the establishments mentioned at sr. Nos. 1 to 6 in col. 2 of Sch. II are wider than and different from the establishment as defined by S. 2 (8).We do not think that this suggestion is well-founded. There can be no doubt that Section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of Sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 7 to 55 it is only some provisions of the Act specified in col.3 that are excluded. In other words, the remaining sections not so specified would apply to them. If that is so, they must be and are establishments under S. 2 (8) of the Act. 22. In this connection it must be borne in mind that S. 2 (8) empowers the State Government to include by notification any office or institution within the definition of establishment; and so the inclusion of any such office or institution in col. 2 of sch. II would make it an establishment under the Act, and as such it would be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the suggestion of the learned Attorney-General as to the denotation and character of establishments enumerated in serial Nos. 1 to 5 in col. 2 of sch. II cannot be accepted. All the offices, establishments and other institutions mentioned in col. 2 of sch. II are and must be held to be establishments under S. 2 (8). 23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently of the other provisions of the Act and in that sense it stands apart from them. It is this aspect of the matter which is clarified by the Legislature by laying down in S. 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory. That, however, anticipates the argument on the construction of S. 70. Let us therefore cite the said section and construe it. 24. Section 70 provides that nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the Factories Act shall, notwithstanding anything in the said Act, apply to such person. This section consists of two parts. The first part makes it clear that no provision in the Act shall be deemed to apply to the person specified in it. The Legislature knew that in fact the Act contained no provision which in terms or expressly applies to any such person; but in order to remove any possible doubt it has provided that no provision in the Act shall even by inference or fiction the deemed to apply to them.In other words this clause is intended to clarify the position that though factory has been defined by S. 2 (9) of the Act, no provision of the Act is intended to be applied to a factory or employees in it. Having clarified this position the second part of the section extends the application of the Factories Act to the said persons. 25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act.The said Act contains the provision by which workers are defined under S. 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act in regard to employees in factories.That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt.
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before usSince we are dealing with the case on the assumption that the respondents are not workers under S. 2 (1) it follows that S. 59 by itself would not be applicable to themIt is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extention of the provisions of the Factories Act to employees in the factories within the territory of the State of Bombay; and since sanction for this legislation has been duly obtained from the Governor-General of India on 3-1-1949 (Published in the Bombay Government Gazette, Part IV, dated 11-1-1949.), no question about any repugnance between the provisions of S. 70 and those of the Factories Act can possibly ariseIt is conceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory; but it seems to us that such an adjunct of an establishment is prima facie not intended by the Act to be treated a part and separately from the main establishment itself, and so it would be taken as a part of the establishment and be governed by the provisions of the Act in relation thereto. The factory where the respondents are employed is not connected with, much less an inseparable adjunct of, any establishment, and so this academic aspect of the matter which was incidentally posed before us by the learned Attorney-General need not be pursued any further in the present appealIt is obvious that S. 4 mentions and applies only to establishments and it has no application to factories and we are dealing with employees in a factory.Indeed as we have already observed, no provision of the Act except S. 70 applies to factories and so it would not be legitimate to base any argument on the assumption that S. 4 is applicable to the present caseWe do not think that this suggestion is well-founded. There can be no doubt that Section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of Sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. II shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at serial Nos. 1 to 6 including 6 (a) to 6(k), in regard to the others which are enumerated at serial Nos. 7 to 55 it is only some provisions of the Act specified in col.3 that are excluded. In other words, the remaining sections not so specified would apply to them. If that is so, they must be and are establishments under S. 2 (8) of the Act22. In this connection it must be borne in mind that S. 2 (8) empowers the State Government to include by notification any office or institution within the definition of establishment; and so the inclusion of any such office or institution in col. 2 of sch. II would make it an establishment under the Act, and as such it would be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the suggestion of the learned Attorney-General as to the denotation and character of establishments enumerated in serial Nos. 1 to 5 in col. 2 of sch. II cannot be accepted. All the offices, establishments and other institutions mentioned in col. 2 of sch. II are and must be held to be establishments under S. 2 (8)23. In regard to the argument that the operation of S. 4 excludes the application of S. 70 we have held that S. 4 applies only to establishments not factories.But even if S. 4 is assumed to be applicable to factories, we do not think it would materially affect the application of S. 70. The plain object underlying S. 70 and its context emphatically point out that it is intended to operate in dependently of the other provisions of the Act and in that sense it stands apart from them. It is this aspect of the matter which is clarified by the Legislature by laying down in S. 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory. That, however, anticipates the argument on the construction of S. 70. Let us therefore cite the said section and construe it25. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the Factories Act and make them applicable to factories as defined by S. 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of S. 70. This part provides that the provisions of the Factories Act shall apply to the persons in question notwithstanding anything contained in the said Act.The said Act contains the provision by which workers are defined under S. 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that S. 70 has provided that notwithstanding the said provision the relevant provisions of the Factories Act will apply to persons employed in a factory. The non-obstante clause in S. 70 thus serves the purpose of clarifying the position that the Factories Act is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by S. 63; and it has made applicable inter alia the relevant provisions of the Factories Act in regard to employees in factories.That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt.
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M/S TERAI TEA COMPANY LIMITED Vs. KUMKUM MITTAL | stamp duty which was paid on the deed of conveyance which the appellant is indisputedly at liberty to recover by due process of law but that will not give any benefit in reference to the agreement to sell dated 15 th January, 1990 which indisputedly was unstamped and in the given circumstances, the High Court has not committed any error in impounding the document.12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The indisputed facts which can easily be discernible from the records are that in reference to the suit property, there was an agreement to sell dated 15 th January, 1990 executed by late Dhirendra Nath Bhowmick in favour of appellant-plaintiff for the sale of tea estate namely, M/s. Dharanipur Tea Estate for a consideration of Rs. 10,11,000/- for which part payment of Rs. 2,11,000/- was made and since late Dhirendra Nath Bhowmick failed to fulfil his obligation, suit for specific performance no. 240 of 1990 at the instance of the appellant came to be instituted. In the said pending suit no. 240 of 1990, since the interim injunction was refused, appeal came to be preferred and during pendency of the appeal, the parties to the proceedings entered into a compromise and the Division Bench of the High Court vide its order dated 2 nd August, 1991 granted consent decree on enhancement of a consideration from original amount of Rs. 10,11,000/- to Rs. 12,11,000/-. In sequel thereto, the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid by the appellant and full consideration of Rs. 12,11,000/- was paid by the appellant to Dhirendra Nath Bhowmick.14. This fact was not in the notice of the appellant that prior to filing of the suit no. 240 of 1990, earlier suit no. 8 of 1984 was filed by Dhirendra Nath Bhowmick and his wife for declaration that the transfer of controlling interest in the shares of the company, namely, M/s. the New Red Bank Tea Company Private Ltd. was not valid and a declaration was sought that he had legal and equitable right, title and interest in respect of the said Dharanipur Tea Estate and restoration of possession was pending adjudication. The consent decree dated 2 nd August, 1991 pursuant to which the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid that came to be challenged in this Court by M/s. New Red Bank Tea Company Private Ltd. who indisputedly was not party to the proceedings which was instituted at the instance of the appellant (Suit No. 240 of 1990).15. After the parties being heard, this Court allowed the civil appeal under its order dated 9 th September, 1991 and set aside the consent decree dated 2 nd August, 1991 on the premise that suit no. 240 of 1990 and suit no. 8 of 1984 ought to have been tried together and the suit for specific performance could not have been decreed by consent without determining the legal title and factum of possession of the suit property. The title and possession could not have been decided without impleading the respondent M/s. The New Red Bank Tea Company Private Ltd. as a defendant to the suit. By setting aside the consent decree dated 2 nd August, 1991, in the consequence, the deed of conveyance dated 3 rd August, 1991 also came to be cancelled and after the order of this Court in Civil Appeal No. 3569 of 1991 dated 9 th September, 1991, it reveals that M/s. the New Red Bank Tea Company Private Ltd. has been impleaded as a defendant in suit no. 240 of 1990 filed at the instance of the appellant and under the directions of this Court, both the suits are clubbed and to be heard together on merits.16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case. | 1[ds]16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case. | 1 | 2,432 | 386 | ### 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:
stamp duty which was paid on the deed of conveyance which the appellant is indisputedly at liberty to recover by due process of law but that will not give any benefit in reference to the agreement to sell dated 15 th January, 1990 which indisputedly was unstamped and in the given circumstances, the High Court has not committed any error in impounding the document.12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The indisputed facts which can easily be discernible from the records are that in reference to the suit property, there was an agreement to sell dated 15 th January, 1990 executed by late Dhirendra Nath Bhowmick in favour of appellant-plaintiff for the sale of tea estate namely, M/s. Dharanipur Tea Estate for a consideration of Rs. 10,11,000/- for which part payment of Rs. 2,11,000/- was made and since late Dhirendra Nath Bhowmick failed to fulfil his obligation, suit for specific performance no. 240 of 1990 at the instance of the appellant came to be instituted. In the said pending suit no. 240 of 1990, since the interim injunction was refused, appeal came to be preferred and during pendency of the appeal, the parties to the proceedings entered into a compromise and the Division Bench of the High Court vide its order dated 2 nd August, 1991 granted consent decree on enhancement of a consideration from original amount of Rs. 10,11,000/- to Rs. 12,11,000/-. In sequel thereto, the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid by the appellant and full consideration of Rs. 12,11,000/- was paid by the appellant to Dhirendra Nath Bhowmick.14. This fact was not in the notice of the appellant that prior to filing of the suit no. 240 of 1990, earlier suit no. 8 of 1984 was filed by Dhirendra Nath Bhowmick and his wife for declaration that the transfer of controlling interest in the shares of the company, namely, M/s. the New Red Bank Tea Company Private Ltd. was not valid and a declaration was sought that he had legal and equitable right, title and interest in respect of the said Dharanipur Tea Estate and restoration of possession was pending adjudication. The consent decree dated 2 nd August, 1991 pursuant to which the deed of conveyance was executed on 3 rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid that came to be challenged in this Court by M/s. New Red Bank Tea Company Private Ltd. who indisputedly was not party to the proceedings which was instituted at the instance of the appellant (Suit No. 240 of 1990).15. After the parties being heard, this Court allowed the civil appeal under its order dated 9 th September, 1991 and set aside the consent decree dated 2 nd August, 1991 on the premise that suit no. 240 of 1990 and suit no. 8 of 1984 ought to have been tried together and the suit for specific performance could not have been decreed by consent without determining the legal title and factum of possession of the suit property. The title and possession could not have been decided without impleading the respondent M/s. The New Red Bank Tea Company Private Ltd. as a defendant to the suit. By setting aside the consent decree dated 2 nd August, 1991, in the consequence, the deed of conveyance dated 3 rd August, 1991 also came to be cancelled and after the order of this Court in Civil Appeal No. 3569 of 1991 dated 9 th September, 1991, it reveals that M/s. the New Red Bank Tea Company Private Ltd. has been impleaded as a defendant in suit no. 240 of 1990 filed at the instance of the appellant and under the directions of this Court, both the suits are clubbed and to be heard together on merits.16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case.
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### Explanation:
16. In the peculiar facts and circumstances, where the parties to the proceedings originally in Suit No. 240 of 1990 filed at the instance of the appellant have consented to obtain a consent decree of specific performance dated 2 nd August, 1991 pursuant to which deed of conveyance was executed on 3 rd August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by the appellant and no objection was raised by the respondent at any stage in reference to the agreement to sell dated 15 th January, 1990 in the suit for specific performance and the decree dated 2 nd August, 1991 although it has been set aside by this Court at the instance of the third party to the proceedings, namely, M/s. the New Red Bank Tea Company Private Ltd. and once the finding has been affirmed that the appellant is entitled for refund of Rs. 1,85,000/- towards stamp duty which was paid on the deed of conveyance, the appellant who has always shown his bonafides in transfer of full consideration after which deed of conveyance was executed and stamp duty of Rs. 1,85,000/- was paid which he is indisputedly entitled for refund, it is not open for the respondent(s) to question as they always remained consented to the decree passed by the Court dated 2 nd August, 1991 which although came to be set aside at the instance of the third party, namely, M/s. the New Red Bank Tea Company Private Ltd.17. In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case.
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State Of Kerala Vs. Ramaswami Iyer & Sons | what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and so, we find it impossible to accept Mr. Sastris argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment. 10. The action of the taxing authority in Basappas case, 1964-15 STC 144 : (AIR 1964 SC 1873 ), in taxing transaction which he erroneously held were taxable was no more outside the Act than the action of the taxing authority in Kamala Mills case, AIR 1965 SC 1942 . If it be granted that the jurisdiction of the civil court may be excluded by express enactment or by necessary intendment arising from the scheme of the Act, Basappas case, 1964-15 STC 144 : (AIR 1964 SC 1873 ) must be regarded as wrongly decided. 11. It is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases: Secretary of State v. Mask and Co., 67 Ind App 222: (AIR 1940 PC 105 ). Counsel for the respondents urged that the case of the respondents fell within that exception, since the Sales tax Officer in imposing tax-liability acted in defiance of the mandatory provisions of the Act and in support of the argument he placed reliance upon R. 7 of the Rules framed under the Act and the definition of "turnover under the Act. Under the Act sales-tax is charged for the year at the prescribed rates on the total turnover of the dealer. The Government of Travancore-Cochin promulgated rules in exercise of powers under S. 24 of the Travancore-Cochin General Sales Tax Act, and R. 7 dealt with computation of "net turnover. In R. 7 (1) by Cls. (a) to (k) certain exemptions admissible in the computation of the net turnover were set out. By notification No. SRI-1643-51-RD dated March 31, 1951 it was directed that with effect from April 1, 1951, the following clause shall be added:"(1) all amounts of sales-tax collected by the dealer. By this amendment in the computation of the taxable turnover, the amounts of sales-tax collected by the dealer were not to be included. But this amendment was to have effect only from April 1, 1951, and in the proceeding in this appeal tax-liability for the assessment period ending March 31, 1951 fell to be determined. The exemption was therefore inoperative in the computation of taxable turnover for the assessment year in question. 12. Counsel for the respondents however contended that the effect of the amendment was merely to clarify what was implicit in the content of the expression "turnover. By S. 2 (k) "turnover means - insofar as the definition is relevant - "the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration* * * * ""Turnover being the aggregate amount for which goods are bought or sold, and normally the aggregate amount would include such amount as the purchaser pays to the dealer for the goods, the expression "aggregate amount for which goods are * * sold within the meaning of "turnover in S. 2 (k) would include the amount of sales-tax received by the dealer. There is no provision in the Act which may by implication suggest that from the connotation of the expression "turnover the sales-tax collected in the year of assessment ending March 31, 1951 was to be excluded. Exclusion prescribed by Cl. (1) of R. 7 (1) enacted with effect from April 1, 1951 is not clarificatory, but prescribes an additional head in the computation of net turnover. 13. This Court in George Oaks (Private) Ltd. v. State of Madras, AIR 1962 SC 1037 , in dealing with the question whether sales-tax charged by the dealer may be excluded within the meaning of the expression "turnover as used in the Madras General Sales Tax Act, 1939, observed:"Under the definition of turnover the aggregate amount for which goods are bought or sold is taxable. This aggregate amount "includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government. There is thus nothing anomalous in the law treating it as part of the amount on which tax must be paid by him. This conception of a turnover is not new. It is found in England and America and there is no reason to think that when the legislatures in India defined turnover to include tax also they were striking out into something quite unknown and unheard of before. 14. Counsel for the respondents contended that these observations made in interpreting the terms of the Madras General Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1954, have no bearing on the interpretation of the expression "turnover as used in the Travancore-Cochin General Sales Tax Act. But the observations made by the Court were not made in the context of any special statute. 15. There was in the Travancore-Cochin, General Sales Tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance. 16. | 1[ds]The assessing authority invested with power under the Travancore-Cochin General Sales Tax Act is constituted by the Act a tribunal, which within the limits of its authority is competent to decide all questions of fact and law arising before him in the course of proceedings for assessment, and of his own jurisdiction as well. The Act sets up machinery for levy, assessment, and collection of tax. By S. 3 of the Act charge is imposed, subject to exemptions prescribed by Ss. 4, 5, and 6 upon every dealer to pay tax on his total turnover of each year. Duty to pay the tax is imposed by S. 11 (2) of the Act. Section 12 sets up the procedure of the assessing authority in making assessments and S. 13 deals with recovery of tax. A taxpayer aggrieved by an order of assessment may appeal under S. 14 against the order of assessment, and the decision of the appellate authority is by Cl. (4) subject to the power of revision conferred by S. 15 expressly declared final. Section 15 as it stood at the relevant time provided for the exercise of revisional jurisdiction by the Board of Revenue against the order of the taxing authorities - original as well as appellate. By S. 24 power is conferred upon the State Government to frame rules, setting up machinery for determination of the net chargeable turnover, for refund of tax collected in excess of true liability and for other incidental matters. The Act is therefore a complete code dealing with the levy, assessment and collection and refund of tax. It authorises investment of power in a hierarchy of authorities to administer the Act. For the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under S. 15 are declared final. Liability to pay tax arises under and by virtue of the provisions of the Act, and the quantum of liability may be determined under the Act aloneThere was in the Travancore-Cochin, General Sales Tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance. | 1 | 3,210 | 441 | ### 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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what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and so, we find it impossible to accept Mr. Sastris argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment. 10. The action of the taxing authority in Basappas case, 1964-15 STC 144 : (AIR 1964 SC 1873 ), in taxing transaction which he erroneously held were taxable was no more outside the Act than the action of the taxing authority in Kamala Mills case, AIR 1965 SC 1942 . If it be granted that the jurisdiction of the civil court may be excluded by express enactment or by necessary intendment arising from the scheme of the Act, Basappas case, 1964-15 STC 144 : (AIR 1964 SC 1873 ) must be regarded as wrongly decided. 11. It is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases: Secretary of State v. Mask and Co., 67 Ind App 222: (AIR 1940 PC 105 ). Counsel for the respondents urged that the case of the respondents fell within that exception, since the Sales tax Officer in imposing tax-liability acted in defiance of the mandatory provisions of the Act and in support of the argument he placed reliance upon R. 7 of the Rules framed under the Act and the definition of "turnover under the Act. Under the Act sales-tax is charged for the year at the prescribed rates on the total turnover of the dealer. The Government of Travancore-Cochin promulgated rules in exercise of powers under S. 24 of the Travancore-Cochin General Sales Tax Act, and R. 7 dealt with computation of "net turnover. In R. 7 (1) by Cls. (a) to (k) certain exemptions admissible in the computation of the net turnover were set out. By notification No. SRI-1643-51-RD dated March 31, 1951 it was directed that with effect from April 1, 1951, the following clause shall be added:"(1) all amounts of sales-tax collected by the dealer. By this amendment in the computation of the taxable turnover, the amounts of sales-tax collected by the dealer were not to be included. But this amendment was to have effect only from April 1, 1951, and in the proceeding in this appeal tax-liability for the assessment period ending March 31, 1951 fell to be determined. The exemption was therefore inoperative in the computation of taxable turnover for the assessment year in question. 12. Counsel for the respondents however contended that the effect of the amendment was merely to clarify what was implicit in the content of the expression "turnover. By S. 2 (k) "turnover means - insofar as the definition is relevant - "the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration* * * * ""Turnover being the aggregate amount for which goods are bought or sold, and normally the aggregate amount would include such amount as the purchaser pays to the dealer for the goods, the expression "aggregate amount for which goods are * * sold within the meaning of "turnover in S. 2 (k) would include the amount of sales-tax received by the dealer. There is no provision in the Act which may by implication suggest that from the connotation of the expression "turnover the sales-tax collected in the year of assessment ending March 31, 1951 was to be excluded. Exclusion prescribed by Cl. (1) of R. 7 (1) enacted with effect from April 1, 1951 is not clarificatory, but prescribes an additional head in the computation of net turnover. 13. This Court in George Oaks (Private) Ltd. v. State of Madras, AIR 1962 SC 1037 , in dealing with the question whether sales-tax charged by the dealer may be excluded within the meaning of the expression "turnover as used in the Madras General Sales Tax Act, 1939, observed:"Under the definition of turnover the aggregate amount for which goods are bought or sold is taxable. This aggregate amount "includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government. There is thus nothing anomalous in the law treating it as part of the amount on which tax must be paid by him. This conception of a turnover is not new. It is found in England and America and there is no reason to think that when the legislatures in India defined turnover to include tax also they were striking out into something quite unknown and unheard of before. 14. Counsel for the respondents contended that these observations made in interpreting the terms of the Madras General Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1954, have no bearing on the interpretation of the expression "turnover as used in the Travancore-Cochin General Sales Tax Act. But the observations made by the Court were not made in the context of any special statute. 15. There was in the Travancore-Cochin, General Sales Tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance. 16.
### Response:
1
### Explanation:
The assessing authority invested with power under the Travancore-Cochin General Sales Tax Act is constituted by the Act a tribunal, which within the limits of its authority is competent to decide all questions of fact and law arising before him in the course of proceedings for assessment, and of his own jurisdiction as well. The Act sets up machinery for levy, assessment, and collection of tax. By S. 3 of the Act charge is imposed, subject to exemptions prescribed by Ss. 4, 5, and 6 upon every dealer to pay tax on his total turnover of each year. Duty to pay the tax is imposed by S. 11 (2) of the Act. Section 12 sets up the procedure of the assessing authority in making assessments and S. 13 deals with recovery of tax. A taxpayer aggrieved by an order of assessment may appeal under S. 14 against the order of assessment, and the decision of the appellate authority is by Cl. (4) subject to the power of revision conferred by S. 15 expressly declared final. Section 15 as it stood at the relevant time provided for the exercise of revisional jurisdiction by the Board of Revenue against the order of the taxing authorities - original as well as appellate. By S. 24 power is conferred upon the State Government to frame rules, setting up machinery for determination of the net chargeable turnover, for refund of tax collected in excess of true liability and for other incidental matters. The Act is therefore a complete code dealing with the levy, assessment and collection and refund of tax. It authorises investment of power in a hierarchy of authorities to administer the Act. For the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under S. 15 are declared final. Liability to pay tax arises under and by virtue of the provisions of the Act, and the quantum of liability may be determined under the Act aloneThere was in the Travancore-Cochin, General Sales Tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance.
|
Regu Mahesh @ Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev | the averments made in paras 1 to 17 of the petition have been staged to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by this Court in Singoras case (supra) the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (See Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore (AIR 1964 SC 1545 and A.S. Subbaraj vs. M. Muthiah (5 ELR 21). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried." (Underlined for emphasis) 15. The case at hand has great similarly with the decision in R.P. Moiduttys case (supra). Not only defects in the verification/affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition. The appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification. But that was not done and the appellant continued to stick to his stand that since corrupt practice was not alleged, there is no need for making any amendment. The importance of verification has been noted by this Court in several decisions. In Virendra Kumar Saklecha vs. Jagjiwan and others, (1972) 1) SC 826) it was noted as under: "The importance of setting out the source of information in affidavits came up for consideration before this Court from time to time. One of the earliest decisions is State of Bombay vs. Purushottam Jog Naik (AIR 1952 SC 317 ) where this Court endorsed the decision of the Calcutta High Court in Padmadbti Dasi vs. Rasik Lal Dhar (ILR 37 Cal. 259) and held that the sources of information should be clearly disclosed. Again in Barium Chemicals Ltd. and Vs. Company Law Board and others (AIR 1967 SC 295 ) this Court deprecated slip shod verifications in an affidavit and reiterated the ruling of this Court in Bombays case (supra) that verification should invariably be modeled on the lines of Order 19, Rule 3 of the Code whether the Code applies in terms or not. Again in A.K.K. Nambiar vs. Union of India and Anr. (1969 (3) SCC 864 ), this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.The real importance of setting out the source of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the source of information. The other point of view is that the election petition will not be able to make any departure from the source or grounds, if there is any embellishment of the case it will be discovered." 16. The Constitution Bench in State of Bombay vs. Purushotham (AIR 1952 SC 317 ) noted as follows: "The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modeled on the lines of Order 19. Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed. e draw attention to the remarks of Jenkins C.J. and Woodroffe, J, in Padmabati Dasi vs. Rasik Lal Dhar (37 Cal. 259) and endorse the learned Judges observations". 17. An election petition has definite role in the law relating to election of representatives of the people.18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practicing advocate. An advocate is supposed to know the importance of verification and the desirability of making statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring to focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on fairness thereof and seeks a declaration that mandate of people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun.19. Above being the position, we | 0[ds]14. In R.P. Moidutty vs. P.T. Kunju Mohammad and another (2000 (1) SCC 481 ) it was, inter alia, held asthe averments made in paras 1 to 17 of the petition have been staged to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by this Court in Singoras case (supra) the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (See Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore (AIR 1964 SC 1545 and A.S. Subbaraj vs. M. Muthiah (5 ELR 21). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried.The case at hand has great similarly with the decision in R.P. Moiduttys case (supra). Not only defects in the verification/affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition. The appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification. But that was not done and the appellant continued to stick to his stand that since corrupt practice was not alleged, there is no need for making any amendment.18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practicing advocate. An advocate is supposed to know the importance of verification and the desirability of making statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring to focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on fairness thereof and seeks a declaration that mandate of people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun.19. Above being the position, we find no reason to interfere with the impugned judgment dismissing the election petition; though we have not approved or affirmed some of the reasons for conclusion arrived at by the High Court, | 0 | 4,119 | 659 | ### 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:
the averments made in paras 1 to 17 of the petition have been staged to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by this Court in Singoras case (supra) the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (See Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore (AIR 1964 SC 1545 and A.S. Subbaraj vs. M. Muthiah (5 ELR 21). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried." (Underlined for emphasis) 15. The case at hand has great similarly with the decision in R.P. Moiduttys case (supra). Not only defects in the verification/affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition. The appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification. But that was not done and the appellant continued to stick to his stand that since corrupt practice was not alleged, there is no need for making any amendment. The importance of verification has been noted by this Court in several decisions. In Virendra Kumar Saklecha vs. Jagjiwan and others, (1972) 1) SC 826) it was noted as under: "The importance of setting out the source of information in affidavits came up for consideration before this Court from time to time. One of the earliest decisions is State of Bombay vs. Purushottam Jog Naik (AIR 1952 SC 317 ) where this Court endorsed the decision of the Calcutta High Court in Padmadbti Dasi vs. Rasik Lal Dhar (ILR 37 Cal. 259) and held that the sources of information should be clearly disclosed. Again in Barium Chemicals Ltd. and Vs. Company Law Board and others (AIR 1967 SC 295 ) this Court deprecated slip shod verifications in an affidavit and reiterated the ruling of this Court in Bombays case (supra) that verification should invariably be modeled on the lines of Order 19, Rule 3 of the Code whether the Code applies in terms or not. Again in A.K.K. Nambiar vs. Union of India and Anr. (1969 (3) SCC 864 ), this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.The real importance of setting out the source of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the source of information. The other point of view is that the election petition will not be able to make any departure from the source or grounds, if there is any embellishment of the case it will be discovered." 16. The Constitution Bench in State of Bombay vs. Purushotham (AIR 1952 SC 317 ) noted as follows: "The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modeled on the lines of Order 19. Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed. e draw attention to the remarks of Jenkins C.J. and Woodroffe, J, in Padmabati Dasi vs. Rasik Lal Dhar (37 Cal. 259) and endorse the learned Judges observations". 17. An election petition has definite role in the law relating to election of representatives of the people.18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practicing advocate. An advocate is supposed to know the importance of verification and the desirability of making statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring to focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on fairness thereof and seeks a declaration that mandate of people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun.19. Above being the position, we
### Response:
0
### Explanation:
14. In R.P. Moidutty vs. P.T. Kunju Mohammad and another (2000 (1) SCC 481 ) it was, inter alia, held asthe averments made in paras 1 to 17 of the petition have been staged to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by this Court in Singoras case (supra) the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (See Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore (AIR 1964 SC 1545 and A.S. Subbaraj vs. M. Muthiah (5 ELR 21). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried.The case at hand has great similarly with the decision in R.P. Moiduttys case (supra). Not only defects in the verification/affidavit were pointed out, but they were pressed into service seeking dismissal of the election petition. The appellant stated in his reply that he was filing separate petition with permission for leave of the High Court for amending the verification. But that was not done and the appellant continued to stick to his stand that since corrupt practice was not alleged, there is no need for making any amendment.18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practicing advocate. An advocate is supposed to know the importance of verification and the desirability of making statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring to focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on fairness thereof and seeks a declaration that mandate of people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun.19. Above being the position, we find no reason to interfere with the impugned judgment dismissing the election petition; though we have not approved or affirmed some of the reasons for conclusion arrived at by the High Court,
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Ahmedabad Manufacturing & Calico Printing Co. Ltd. & Others Vs. State of Gujarat & Others | to other lands. Section 128 of the Code then provides:"Section 128 : The existing exemption from payment of land revenue of lands other than lands which have hitherto been ordinarily used for purposes of agriculture only, situate within the sites of towns and cities in which an inquiry into titles has been made under the provisions of Bombay Act IV of 1868 shall be continued First - if such lands are situated in any town or city where there has been in former years a survey which the State Government recognise for the purpose of this section, and are shown in the maps or other records of such survey as being held wholly or partially exempt from the payment of land revenue; * * * * " The exemption granted by S. 128 saves lands in the inner zone from the application of land revenue and the middle zone bears the non-agricultural assessment since it does not fall within this exemption. It is subjected to non-agricultural assessment by reason of the non-agricultural use to which it is put. The outer zone being outside the limits of village sites, town or city and composed of pure agricultural land is subject to land revenue only. 8. The three zones are the result of the operation of different laws in rural and urban areas. Lands subjected to city survey and assessed to property-tax are saved from the imposition of land revenue to which all lands are normally subject. This exemption is a hundred years old and is based on the fact that land in the heart of the city ceases to be agricultural. Similarly lands in the outer circle are free from municipal assessment because they are outside municipal limits and do not benefit from the municipal services. They are subject to land revenue only. The middle zone comes into being because the owners and holders of agricultural lands are not content to hold land for agriculture but divert it to other uses. In course of time the limits of the municipality have to be revised and these lands are taken within the municipality which means that they begin to share in the municipal services. They are therefore, assessed to municipal taxes as a return for the services rendered. 9. Now a cess is really a tax and it is generally imposed for providing money for some stated administrative purpose. It is usually collected as an addition to an existing tax. And so it is here. It is made as an addition to the tax already levied on lands and buildings, Since lands and buildings bear different kinds of taxes in the different zones, an attempt has been made to adjust the rates for the different zones presumably to make the levy equitable, regard being had to the situation and advantages to be derived from the expenditure on education. No objection has been made in the case that the tax levied in any zone is not commensurate with the advantages which are likely to accrue or that the burden has been made unduly high in any particular zone. The only objections raised are three. The first and second are (a) that flat rate is applied in calculating the annual letting value, and (b) that plant and machinery are included in lands and buildings. This has been corrected by the decision of our brother Mitter. The third is that the middle zone bears both the surcharge and the tax. A double imposition by itself is not offensive to Art. 14 of the Constitution unless it can be shown that the double tax in one zone as compared with the single tax in the other zones falls more heavily than the single tax. This is not attempted to be established except on the ground of flat rate above mentioned. Since that has been struck down already and will presumably be replaced by some more accurate and equitable valuation, we do not set any reason to interfere. The decision of other brother Mitter will dead to a readjustment of the assessment book and then only the around that the rate of cess in the middle zone exceeds the rate in the other two zones can be considered. As at present situated it is sufficient to say that there is no discrimination because the method of calculation of cess in the three zones, the surcharge and tax have to be paid, the rates, the cess falls equitably on all landlords regard being had to the advantages derived from the cess and the advantages derived from the situation of the lands. 10. Finally there is the argument that the Cess Act, in not providing its own procedure of assessment and in not giving the tax-payers an opportunity for putting forward their objections by way of representation, appeal or otherwise, before the tax is finally fixed, offends the principles of natural justice. This argument is not correct. The cess is nothing more than an addition to existing taxes. As it is a percentage of another tax, the determination of the cess is not by an independent assessment. It is an arithmetical calculation based on the result of assessment under other Act or Acts. Those Acts allow the raising of objections and provide for appeals. It is only the result of assessment after scrutiny, objection and appeals which forms the basis for the application of a percentage. There is no need for further scrutiny, objection or appeals. Nor is the Cess Act bad because it is not self-contained in the matter of assessment. In all cases of imposition of cesses for special administrative purposes (such as health cess, road cess, education cess, etc.) this method is followed. Being an addition to another tax this is the only method possible. The legislation on the subject of the imposition, levy and collection of a cess is made complete by incorporation of and reference to another piece of legislation. This practice is neither ineffective nor unconstitutional and cannot be said to be bad. | 0[ds]4. It will be noticed that education cess is of three separate kinds. It is (a) a surcharge on land revenue assessed on purely agricultural lands, or (b) a surcharge on non-agricultural assessment in respect of lands used for non-agricultural purposes or (c) a tax on lands and buildings which do not bear land revenue. The properties in Ahmedabad are in three zones which may be described as demarcated by three concentric circles. In the inner zone are situated properties which do not bear land revenue and no surcharge, is therefore payable in respect of lands and buildings. Properties in this zone were exempted from the payment of land revenue under S. 128 of the Bombay Land Revenue Code in Ahmedabad in common with other towns and cities in which there had been formerly a city survey. In the middle zone are situated lands which though originally agricultural lands have been diverted to non-agricultural use and the lands and buildings, therefore, bear both municipal tax and non-agricultural assessment. In the outer zone are lands which are purely agricultural and they bear land revenue but no other charge5. The textile mills of the petitioners are situated in the middle zone within the municipal limits of Ahmedabad and the main complaint in these cases is that by reason of their situation, these mills have to pay both the surcharge as well as the tax whereas the owners of property in the other two zones bear either a surcharge on the land revenue or a tax on the annual letting value. It is also contended that the preparation of the assessment book having been struck down by this Court in the case cited earlier by us, the tax under S. 12 is no longer leviable and S. 12 having become inoperative, the Cess Act must fall as a wholeIn our judgment it does not. Section 12 lays down that the tax on lands and buildings situated in urban areas shall be collected at the rate of 3 per cent of the annual letting value (now 4.5 per cent) where a building or land is used for the purpose of trade, commerce, industry, profession or business. This rate is applicable to the annual letting value as determined under the Bombay Provincial Municipal Corporations Act. If as a result of the decision of this Court the assessment book needs revision or the principles on which valuation must be based have to be laid down afresh by the Legislature, the provisions of S. 12 of the Cess Act do not fail automatically. They will fasten on the new valuation when made. This cannot affect the validity of the section in the mean time. The section remains on the statute book to be worked into such assessment book as may hereafter emerge. The argument that S. 12 has failed must be rejected8. The three zones are the result of the operation of different laws in rural and urban areas. Lands subjected to city survey and assessed to property-tax are saved from the imposition of land revenue to which all lands are normally subject. This exemption is a hundred years old and is based on the fact that land in the heart of the city ceases to be agricultural. Similarly lands in the outer circle are free from municipal assessment because they are outside municipal limits and do not benefit from the municipal services. They are subject to land revenue only. The middle zone comes into being because the owners and holders of agricultural lands are not content to hold land for agriculture but divert it to other uses. In course of time the limits of the municipality have to be revised and these lands are taken within the municipality which means that they begin to share in the municipal services. They are therefore, assessed to municipal taxes as a return for the services renderedThe cess is nothing more than an addition to existing taxes. As it is a percentage of another tax, the determination of the cess is not by an independent assessment. It is an arithmetical calculation based on the result of assessment under other Act or Acts. Those Acts allow the raising of objections and provide for appeals. It is only the result of assessment after scrutiny, objection and appeals which forms the basis for the application of a percentage. There is no need for further scrutiny, objection or appeals. Nor is the Cess Act bad because it is not self-contained in the matter of assessment. In all cases of imposition of cesses for special administrative purposes (such as health cess, road cess, education cess, etc.) this method is followed. Being an addition to another tax this is the only method possible. The legislation on the subject of the imposition, levy and collection of a cess is made complete by incorporation of and reference to another piece of legislation. This practice is neither ineffective nor unconstitutional and cannot be said to be bad. | 0 | 2,949 | 899 | ### 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:
to other lands. Section 128 of the Code then provides:"Section 128 : The existing exemption from payment of land revenue of lands other than lands which have hitherto been ordinarily used for purposes of agriculture only, situate within the sites of towns and cities in which an inquiry into titles has been made under the provisions of Bombay Act IV of 1868 shall be continued First - if such lands are situated in any town or city where there has been in former years a survey which the State Government recognise for the purpose of this section, and are shown in the maps or other records of such survey as being held wholly or partially exempt from the payment of land revenue; * * * * " The exemption granted by S. 128 saves lands in the inner zone from the application of land revenue and the middle zone bears the non-agricultural assessment since it does not fall within this exemption. It is subjected to non-agricultural assessment by reason of the non-agricultural use to which it is put. The outer zone being outside the limits of village sites, town or city and composed of pure agricultural land is subject to land revenue only. 8. The three zones are the result of the operation of different laws in rural and urban areas. Lands subjected to city survey and assessed to property-tax are saved from the imposition of land revenue to which all lands are normally subject. This exemption is a hundred years old and is based on the fact that land in the heart of the city ceases to be agricultural. Similarly lands in the outer circle are free from municipal assessment because they are outside municipal limits and do not benefit from the municipal services. They are subject to land revenue only. The middle zone comes into being because the owners and holders of agricultural lands are not content to hold land for agriculture but divert it to other uses. In course of time the limits of the municipality have to be revised and these lands are taken within the municipality which means that they begin to share in the municipal services. They are therefore, assessed to municipal taxes as a return for the services rendered. 9. Now a cess is really a tax and it is generally imposed for providing money for some stated administrative purpose. It is usually collected as an addition to an existing tax. And so it is here. It is made as an addition to the tax already levied on lands and buildings, Since lands and buildings bear different kinds of taxes in the different zones, an attempt has been made to adjust the rates for the different zones presumably to make the levy equitable, regard being had to the situation and advantages to be derived from the expenditure on education. No objection has been made in the case that the tax levied in any zone is not commensurate with the advantages which are likely to accrue or that the burden has been made unduly high in any particular zone. The only objections raised are three. The first and second are (a) that flat rate is applied in calculating the annual letting value, and (b) that plant and machinery are included in lands and buildings. This has been corrected by the decision of our brother Mitter. The third is that the middle zone bears both the surcharge and the tax. A double imposition by itself is not offensive to Art. 14 of the Constitution unless it can be shown that the double tax in one zone as compared with the single tax in the other zones falls more heavily than the single tax. This is not attempted to be established except on the ground of flat rate above mentioned. Since that has been struck down already and will presumably be replaced by some more accurate and equitable valuation, we do not set any reason to interfere. The decision of other brother Mitter will dead to a readjustment of the assessment book and then only the around that the rate of cess in the middle zone exceeds the rate in the other two zones can be considered. As at present situated it is sufficient to say that there is no discrimination because the method of calculation of cess in the three zones, the surcharge and tax have to be paid, the rates, the cess falls equitably on all landlords regard being had to the advantages derived from the cess and the advantages derived from the situation of the lands. 10. Finally there is the argument that the Cess Act, in not providing its own procedure of assessment and in not giving the tax-payers an opportunity for putting forward their objections by way of representation, appeal or otherwise, before the tax is finally fixed, offends the principles of natural justice. This argument is not correct. The cess is nothing more than an addition to existing taxes. As it is a percentage of another tax, the determination of the cess is not by an independent assessment. It is an arithmetical calculation based on the result of assessment under other Act or Acts. Those Acts allow the raising of objections and provide for appeals. It is only the result of assessment after scrutiny, objection and appeals which forms the basis for the application of a percentage. There is no need for further scrutiny, objection or appeals. Nor is the Cess Act bad because it is not self-contained in the matter of assessment. In all cases of imposition of cesses for special administrative purposes (such as health cess, road cess, education cess, etc.) this method is followed. Being an addition to another tax this is the only method possible. The legislation on the subject of the imposition, levy and collection of a cess is made complete by incorporation of and reference to another piece of legislation. This practice is neither ineffective nor unconstitutional and cannot be said to be bad.
### Response:
0
### Explanation:
4. It will be noticed that education cess is of three separate kinds. It is (a) a surcharge on land revenue assessed on purely agricultural lands, or (b) a surcharge on non-agricultural assessment in respect of lands used for non-agricultural purposes or (c) a tax on lands and buildings which do not bear land revenue. The properties in Ahmedabad are in three zones which may be described as demarcated by three concentric circles. In the inner zone are situated properties which do not bear land revenue and no surcharge, is therefore payable in respect of lands and buildings. Properties in this zone were exempted from the payment of land revenue under S. 128 of the Bombay Land Revenue Code in Ahmedabad in common with other towns and cities in which there had been formerly a city survey. In the middle zone are situated lands which though originally agricultural lands have been diverted to non-agricultural use and the lands and buildings, therefore, bear both municipal tax and non-agricultural assessment. In the outer zone are lands which are purely agricultural and they bear land revenue but no other charge5. The textile mills of the petitioners are situated in the middle zone within the municipal limits of Ahmedabad and the main complaint in these cases is that by reason of their situation, these mills have to pay both the surcharge as well as the tax whereas the owners of property in the other two zones bear either a surcharge on the land revenue or a tax on the annual letting value. It is also contended that the preparation of the assessment book having been struck down by this Court in the case cited earlier by us, the tax under S. 12 is no longer leviable and S. 12 having become inoperative, the Cess Act must fall as a wholeIn our judgment it does not. Section 12 lays down that the tax on lands and buildings situated in urban areas shall be collected at the rate of 3 per cent of the annual letting value (now 4.5 per cent) where a building or land is used for the purpose of trade, commerce, industry, profession or business. This rate is applicable to the annual letting value as determined under the Bombay Provincial Municipal Corporations Act. If as a result of the decision of this Court the assessment book needs revision or the principles on which valuation must be based have to be laid down afresh by the Legislature, the provisions of S. 12 of the Cess Act do not fail automatically. They will fasten on the new valuation when made. This cannot affect the validity of the section in the mean time. The section remains on the statute book to be worked into such assessment book as may hereafter emerge. The argument that S. 12 has failed must be rejected8. The three zones are the result of the operation of different laws in rural and urban areas. Lands subjected to city survey and assessed to property-tax are saved from the imposition of land revenue to which all lands are normally subject. This exemption is a hundred years old and is based on the fact that land in the heart of the city ceases to be agricultural. Similarly lands in the outer circle are free from municipal assessment because they are outside municipal limits and do not benefit from the municipal services. They are subject to land revenue only. The middle zone comes into being because the owners and holders of agricultural lands are not content to hold land for agriculture but divert it to other uses. In course of time the limits of the municipality have to be revised and these lands are taken within the municipality which means that they begin to share in the municipal services. They are therefore, assessed to municipal taxes as a return for the services renderedThe cess is nothing more than an addition to existing taxes. As it is a percentage of another tax, the determination of the cess is not by an independent assessment. It is an arithmetical calculation based on the result of assessment under other Act or Acts. Those Acts allow the raising of objections and provide for appeals. It is only the result of assessment after scrutiny, objection and appeals which forms the basis for the application of a percentage. There is no need for further scrutiny, objection or appeals. Nor is the Cess Act bad because it is not self-contained in the matter of assessment. In all cases of imposition of cesses for special administrative purposes (such as health cess, road cess, education cess, etc.) this method is followed. Being an addition to another tax this is the only method possible. The legislation on the subject of the imposition, levy and collection of a cess is made complete by incorporation of and reference to another piece of legislation. This practice is neither ineffective nor unconstitutional and cannot be said to be bad.
|
UCO BANK Vs. NATIONAL TEXTILE CORPORATION LTD. & ANR | claims being put forth. It is further brought to the notice that the present mechanism brought in through the Office Memorandum dated 22.05.2018 is the Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD) wherein a similar consideration as was being made by PMA will be made. 18. The learned Additional Solicitor General while controverting the contentions insofar as the said Office Memorandum providing the forum would contend that the same would not be applicable in the present facts. In that regard it is contended that the very liability of respondent No.1 herein is in dispute as only the Textile Mill is taken over and, in such circumstance, the said mechanism which provides for adjudication in the case of claims inter se between two Public Sector Enterprises would not be applicable herein. In that light it is contended that the Division Bench of the High Court was justified in quashing the notice issued by the Arbitral Tribunal which was seeking to adjudicate the matter in the jurisdiction which it did not possess. 19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above. 20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis. 21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard. 22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside. | 0[ds]19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside. | 0 | 3,948 | 879 | ### 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:
claims being put forth. It is further brought to the notice that the present mechanism brought in through the Office Memorandum dated 22.05.2018 is the Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD) wherein a similar consideration as was being made by PMA will be made. 18. The learned Additional Solicitor General while controverting the contentions insofar as the said Office Memorandum providing the forum would contend that the same would not be applicable in the present facts. In that regard it is contended that the very liability of respondent No.1 herein is in dispute as only the Textile Mill is taken over and, in such circumstance, the said mechanism which provides for adjudication in the case of claims inter se between two Public Sector Enterprises would not be applicable herein. In that light it is contended that the Division Bench of the High Court was justified in quashing the notice issued by the Arbitral Tribunal which was seeking to adjudicate the matter in the jurisdiction which it did not possess. 19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above. 20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis. 21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard. 22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside.
### Response:
0
### Explanation:
19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside.
|
K. Guruprasad Rao Vs. State of Karnataka & Others | the petitioner for grant of permission for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in two Districts of the State was rejected, the three Judge Bench extensively referred to Saxena Committee report, which covered several issues including violation of the rights of tribal groups including primitive tribal groups and the dalit population and proceeded to observe: “The customary and cultural rights of indigenous people have also been the subject matter of various international conventions. International Labour Organization (ILO) Convention on Indigenous and Tribal Populations Convention, 1957 (No.107) was the first comprehensive international instrument setting forth the rights of indigenous and tribal populations which emphasized the necessity for the protection of social, political and cultural rights of indigenous people. Following that there were two other conventions ILO Convention (No.169) and Indigenous and Tribal Peoples Convention, 1989 and United Nations Declaration on the rights of Indigenous Peoples (UNDRIP), 2007, India is a signatory only to the ILO Convention (No. 107).Apart from giving legitimacy to the cultural rights by 1957 Convention, the Convention on the Biological Diversity (CBA) adopted at the Earth Summit (1992) highlighted necessity to preserve and maintain knowledge, innovation and practices of the local communities relevant for conservation and sustainable use of bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also encourage the promotion of customary practices conducive to conservation. The necessity to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands.” The Bench then referred to the provisions of the Forest Rights Act, 2006, the rules framed thereunder as also the guidelines issued by the Ministry of Tribal Welfare, referred to the judgment of this Court in Amritlal Athubhai Shah v. Union Government of India (1976) 4 SCC 108 , which recognized the power of the State Government to reserve any particular area for bauxite mining for a public sector corporation, and observed: “Religious freedom guaranteed to STs and the TFDs under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam- Raja has, therefore, to be protected and preserved.Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act. Section 6 of the Act confers powers on the Gram Sabha to determine the nature and extent of “individual” or “community rights”. In this connection, reference may also be made to Section 13 of the Act coupled with the provisions of PESA Act, which deal with the powers of Gram Sabha. Section 13 of the Forest Rights Act reads as under:“13. Act not in derogation of any other law. – Save as otherwise provided in this Act and the provisions of the Panchayats (Extension of the Scheduled Areas) Act, 1996 (40 of 1996), the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”PESA Act has been enacted, as already stated, to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012.” 91. When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.92. Before concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc. 93. | 1[ds]Mining within the principle of sustainable development comes within the concept ofwhereas mining beyond the principle of sustainable development comes within the concept ofIt is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle.47. At this stage, we may also note that under Section 13(2)(qq) of the 1957 Act, rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988.48. Under Rule 27(1)(s)(i) of the Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under the Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect.Similarly, under Rule 37 of the Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under the EP Act, 1986 as well as the Air (Prevention and Control of Pollution) Act, 1981. Under the said Rules of 1988, the most important guidelines are Guidelines 25.26.3, 25.26.4, 25.26.5 and 25.26.6. These guidelines deal with reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined-out sites and methods of reclamations (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1555-62). It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation and biological reclamation. The most important aspect of the above guidelines is making of a rehabilitationof the above provisions have been complied with. In the circumstance, by the present order, we hereby suspend all mining operations in the Aravalli hill range falling in the State of Haryana within the area of approximately 448 sq km in the districts of Faridabad and Gurgaon, including Mewat till the reclamation plan duly certified by the State of Haryana, MoEF and CEC is prepared in accordance with the above statutory provisions contained in various enactments enumerated above as well as in terms of the rules framed thereunder and the guidelines. The said plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by status reports on steps taken by the authorities pursuant to the saidAct has been enacted, as already stated, to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012.When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.92. Before concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc. | 1 | 31,490 | 960 | ### 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:
the petitioner for grant of permission for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in two Districts of the State was rejected, the three Judge Bench extensively referred to Saxena Committee report, which covered several issues including violation of the rights of tribal groups including primitive tribal groups and the dalit population and proceeded to observe: “The customary and cultural rights of indigenous people have also been the subject matter of various international conventions. International Labour Organization (ILO) Convention on Indigenous and Tribal Populations Convention, 1957 (No.107) was the first comprehensive international instrument setting forth the rights of indigenous and tribal populations which emphasized the necessity for the protection of social, political and cultural rights of indigenous people. Following that there were two other conventions ILO Convention (No.169) and Indigenous and Tribal Peoples Convention, 1989 and United Nations Declaration on the rights of Indigenous Peoples (UNDRIP), 2007, India is a signatory only to the ILO Convention (No. 107).Apart from giving legitimacy to the cultural rights by 1957 Convention, the Convention on the Biological Diversity (CBA) adopted at the Earth Summit (1992) highlighted necessity to preserve and maintain knowledge, innovation and practices of the local communities relevant for conservation and sustainable use of bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also encourage the promotion of customary practices conducive to conservation. The necessity to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands.” The Bench then referred to the provisions of the Forest Rights Act, 2006, the rules framed thereunder as also the guidelines issued by the Ministry of Tribal Welfare, referred to the judgment of this Court in Amritlal Athubhai Shah v. Union Government of India (1976) 4 SCC 108 , which recognized the power of the State Government to reserve any particular area for bauxite mining for a public sector corporation, and observed: “Religious freedom guaranteed to STs and the TFDs under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam- Raja has, therefore, to be protected and preserved.Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act. Section 6 of the Act confers powers on the Gram Sabha to determine the nature and extent of “individual” or “community rights”. In this connection, reference may also be made to Section 13 of the Act coupled with the provisions of PESA Act, which deal with the powers of Gram Sabha. Section 13 of the Forest Rights Act reads as under:“13. Act not in derogation of any other law. – Save as otherwise provided in this Act and the provisions of the Panchayats (Extension of the Scheduled Areas) Act, 1996 (40 of 1996), the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”PESA Act has been enacted, as already stated, to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012.” 91. When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.92. Before concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc. 93.
### Response:
1
### Explanation:
Mining within the principle of sustainable development comes within the concept ofwhereas mining beyond the principle of sustainable development comes within the concept ofIt is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of precautionary principle.47. At this stage, we may also note that under Section 13(2)(qq) of the 1957 Act, rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988.48. Under Rule 27(1)(s)(i) of the Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under the Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect.Similarly, under Rule 37 of the Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under the EP Act, 1986 as well as the Air (Prevention and Control of Pollution) Act, 1981. Under the said Rules of 1988, the most important guidelines are Guidelines 25.26.3, 25.26.4, 25.26.5 and 25.26.6. These guidelines deal with reclamation, planning and implementation, restoration strategy, principles of rehabilitation, rehabilitation of mined-out sites and methods of reclamations (see Handbook of Environment & Forest Legislations, Guidelines and Procedures in India by Ravindra N. Saxena and Sangita Saxena at pp. 1555-62). It may be noted that there are two steps to be taken in the method of reclamation, namely, technical reclamation and biological reclamation. The most important aspect of the above guidelines is making of a rehabilitationof the above provisions have been complied with. In the circumstance, by the present order, we hereby suspend all mining operations in the Aravalli hill range falling in the State of Haryana within the area of approximately 448 sq km in the districts of Faridabad and Gurgaon, including Mewat till the reclamation plan duly certified by the State of Haryana, MoEF and CEC is prepared in accordance with the above statutory provisions contained in various enactments enumerated above as well as in terms of the rules framed thereunder and the guidelines. The said plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by status reports on steps taken by the authorities pursuant to the saidAct has been enacted, as already stated, to provide for the extension of the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012.When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.92. Before concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc.
|
Navinchandra Ramanlal Vs. Kalidas Bhudarbhai And Anr | Tribunal. If the tenant commits default in the payment of such price either in lump or by installments as determined by the Tribunal, s. 32M declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the tillers day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tillers day or the alternative period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasible only in either of those cases and it cannot therefore be said t hat the title of land lord to the land is suspended for any period definite or indefinite". 9. If the effect of the land being governed by s. 32 on tillers day is to transfer the title of the landlord to the tenant by operation of law, defeasible only in the event of tenant declining to purchase the land or committing default in payment of price as determined by the Tribunal, the next question is: if the land is subsequently brought within the Municipal Corporation area which area enjoys the exemption under s. 88(1)(b), would the vested title be vested: 10. This question can be answered shortly by referring to the amended s. 43C and s. 88(1) (b) with its proviso. both of which clearly assert that the exemption granted under s. 88(1)(b) by a Notification issued by the Government would enure for the benefit of the land which was within the Municipal Corporation area on 1st August, 1956 and in no case the additional area which may be included within the Municipal Corporation area after 1st August, 1956 would enjoy the exemption granted by the Notification unless a fresh Notification is issued. Admittedly, since 14th February, 1957 no fresh Notification is issued. The land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tillers day, when title to land would stand transferred to the tenant by sheer operation of law without anything more. Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmadabad Municipal Corporation area. Subsequent extension of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tillers day, the respondent has, by operation of law, become the owner and is a deemed purchaser. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32G. 11. Mr. Shroff, however, contended that the decisions of this Court in Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli, (1) and Stdram Narsappa Kamble v. Sholapur Borough Municipality, (2) would clearly indicate that whenever a Notification under s. 88(1) (b) is issued by the appropriate Government granting exemption to any area from the operation of the Tenancy Act for the purposes mentioned in the sub-section, such exemption will apply retrospectively and no vested right under the Tenancy Act 1948 or eve n one under the Bombay Tenancy Act, 1939, could be claimed by any one. It is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in t he Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary. Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as it stood at the relevant time, would not be of any assistance. | 0[ds]The contention raised by Mr. Shroff would have necessitated examination of the scheme of the various provisions of the Tenancy Act as has been done by the High Court but in our opinion the High Court unnecessarily undertook this exercise wholly overlooking and by passing two important amendments introduced in the relevant provisions of the Tenancy Act of 1948, viz., 43C and 88(1) both of which were in force at the time when the petition was heard and upon proper construction both amendments being retroactive in their operation from the commencement of the Amendment Act of 1956 which came into force on 1st August, 1956 would have clinched the issue. Therefore, it is not necessary to examine the contention from the angle from which the High Court has done but the contention of Mr. Shroff can be disposed of by a mere reference to the two relevant provisionsThe land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tillers day, when title to land would stand transferred to the tenant by sheer operation of law without anything more. Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmadabad Municipal Corporation area. Subsequent extension of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tillers day, the respondent has, by operation of law, become the owner and is a deemed purchaser. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32GIt is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in t he Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary. Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as it stood at the relevant time, would not be of any assistance. | 0 | 3,804 | 736 | ### 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:
Tribunal. If the tenant commits default in the payment of such price either in lump or by installments as determined by the Tribunal, s. 32M declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the tillers day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tillers day or the alternative period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasible only in either of those cases and it cannot therefore be said t hat the title of land lord to the land is suspended for any period definite or indefinite". 9. If the effect of the land being governed by s. 32 on tillers day is to transfer the title of the landlord to the tenant by operation of law, defeasible only in the event of tenant declining to purchase the land or committing default in payment of price as determined by the Tribunal, the next question is: if the land is subsequently brought within the Municipal Corporation area which area enjoys the exemption under s. 88(1)(b), would the vested title be vested: 10. This question can be answered shortly by referring to the amended s. 43C and s. 88(1) (b) with its proviso. both of which clearly assert that the exemption granted under s. 88(1)(b) by a Notification issued by the Government would enure for the benefit of the land which was within the Municipal Corporation area on 1st August, 1956 and in no case the additional area which may be included within the Municipal Corporation area after 1st August, 1956 would enjoy the exemption granted by the Notification unless a fresh Notification is issued. Admittedly, since 14th February, 1957 no fresh Notification is issued. The land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tillers day, when title to land would stand transferred to the tenant by sheer operation of law without anything more. Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmadabad Municipal Corporation area. Subsequent extension of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tillers day, the respondent has, by operation of law, become the owner and is a deemed purchaser. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32G. 11. Mr. Shroff, however, contended that the decisions of this Court in Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli, (1) and Stdram Narsappa Kamble v. Sholapur Borough Municipality, (2) would clearly indicate that whenever a Notification under s. 88(1) (b) is issued by the appropriate Government granting exemption to any area from the operation of the Tenancy Act for the purposes mentioned in the sub-section, such exemption will apply retrospectively and no vested right under the Tenancy Act 1948 or eve n one under the Bombay Tenancy Act, 1939, could be claimed by any one. It is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in t he Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary. Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as it stood at the relevant time, would not be of any assistance.
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The contention raised by Mr. Shroff would have necessitated examination of the scheme of the various provisions of the Tenancy Act as has been done by the High Court but in our opinion the High Court unnecessarily undertook this exercise wholly overlooking and by passing two important amendments introduced in the relevant provisions of the Tenancy Act of 1948, viz., 43C and 88(1) both of which were in force at the time when the petition was heard and upon proper construction both amendments being retroactive in their operation from the commencement of the Amendment Act of 1956 which came into force on 1st August, 1956 would have clinched the issue. Therefore, it is not necessary to examine the contention from the angle from which the High Court has done but the contention of Mr. Shroff can be disposed of by a mere reference to the two relevant provisionsThe land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tillers day, when title to land would stand transferred to the tenant by sheer operation of law without anything more. Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmadabad Municipal Corporation area. Subsequent extension of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tillers day, the respondent has, by operation of law, become the owner and is a deemed purchaser. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32GIt is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in t he Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary. Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohonlal Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88(1) (b) as it stood at the relevant time, would not be of any assistance.
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Mohinder Singh Vs. State of Punjab and Others | for setting aside the order aforesaid of the Settlement Officer. The Chief Settlement Commissioner by his order dated April 29, 1974 (Annexure 4) accepted the reference and set aside the order. The appellant went in revision under section 33 of the Act which was dismissed by the financial Commissioner by his order dated January 14, 1975 (Annexure 5). As already stated the petitioner was unsuccessful in assailing the last two orders before the High Court.It appears in or about the year 1954 the lessees of the land and cultivating it as such were Mahant Amar Nath, Smt. Shanto Bai and others-some displaced persons. The appellant ;also claims to be a displaced person. The lessees aforesaid, perhaps, ceased to cultivate the land and left Jullundur. The appellant claims that he has been cultivating the land continuously from about the year 1954 onwards. On the 1st of September, 1973 he filed an application before the Revenue authority for correction of the entry in Khasra Girdawari by recording his name therein. The Naib-Tahsildar, Jullundur by his order dated the 6th February, 1974 (Annexure 3) directed the correction of the Khasra Girdavarl for the period 1971-72 to Kharif 1973. He, did not direct the correction of the entry of the earlier period as he could not do so in accordance with the departmental instructions. The appellant filed Suit No. 185 of 1974 on the 9th of August, 1974 for correction of the entry for the earlier period. The lessees aforesaid were impleaded as defendants in the suit. In spite of service of summons, they did not appear to contest it. The suit was decreed ex-parte on the 31st March, 1975 by Shri Baldev Singh, Sub-Judge, Second Class, Jullundur. A copy of his judgment is Annexure 6. He declared the appellant as tenant of the land in dispute since 1954 and directed the correction of the. Jamabandi entries.4. The Chief Settlement Commissioner in his impugned order did not feel persuaded to place any reliance upon the testimony of the witnesses examined by the appellant absence of entries in the Revenue record viz. the Jamabandi or the Khasra Girdawari. The Financial Commissioner was also of the same view. Since he found the names of Amar Nath, Shanto Bai and others mentioned as cultivators, he did not feel persuaded to accept the case of the appellant. The Naib Tahsildar had corrected the entries in respect of the later period by the time the Financial Commissioner happened to pass his impugned order. But he did not attach any importance to it. Finally, the view expressed by the Financial Commissioner in his impugned order are in these Terms"I have already held in several cases that transfer of Urban agricultural land is strictly to be made on the basis of entries in the revenue record and no reliance is to be placed either on oral evidence or on the corrected entries in the Khasra Girdawaris. In the circumstances, I do not find any force in the petition which is dismissed in limine." Rule 34C of the Rules reads as follows, :"Where any land to which this Chapter applies has been leased to a displaced person and such lands consist of one or more Khasras and is valued at Rs. 10, 000/- or less, the land shall be allotted to the lessee:Provided that where any such land or any part thereof has been leased to a displaced person and the sub-lessee has been in occupation of such land or part thereof continuously from the 1st January, 1956, such land or part thereof, as the case may be, shall be allotted to such sub-lessee."It is not the requirement of the rule that a person claiming transfer under any part, of the said rule must be one whose name is found entered in the revenue records. The requirement of the rule is that the land to which Chapter VA applies shall be allotted to the lessee if it has been leased out to him and if he was a displaced person.5. The condition to be fulfilled under the proviso for a sub- lessee is his occupation of the land continuously from the 1st January, 1956. The entry in the revenue records is an important piece of evidence on the question of occupation or possession. But it is not conclusive of the factors to be decided under Rule 34C. Nor is it the law that a subsequent valid order passed by a competent authority or court directing the correction of the entries cannot be taken into consideration. Learned counsel for the State, respondent no. 1 in this appeal, submitted that neither the order of the Naib-Tahsildar nor the decree of the Civil Court was legal and valid as it was not passed in accordance With The Punjab Land Revenue Act, 1887. We have no t examined the correctness of this submission made on behalf of the State as, on the facts and in the circumstances of this case we felt persuaded to send back the case to the Chief Settlement Commissioner. It will be open to the parties to make such submissions or raise such objections as may be available to them in law before the said authority when the case goes back to it. It may be emphasised, however, that indisputably after the land became a property acquired under section 12 of the Act the lessees came on the scene. They did not contest the claim of the appellant either before the Naib Tahsildar or the Civil Court. No one seems to have claimed that the State or any of its authorities had ever come in possession of the land in question. In such a situation justice require a reconsideration of the matter and a fresh decision by the authorities concerned by taking into account the order of the Naib-Tahsildar and the decree of the Civil Court subject to such objections as may be raised apropos their validity and on reappraisal of the oral evidence adduced by the appellant before the Settlement Officer. | 1[ds]The condition to be fulfilled under the proviso for a sub- lessee is his occupation of the land continuously from the 1st January, 1956. The entry in the revenue records is an important piece of evidence on the question of occupation or possession. But it is not conclusive of the factors to be decided under Rule 34C. Nor is it the law that a subsequent valid order passed by a competent authority or court directing the correction of the entries cannot be taken into consideration.have no t examined the correctness of this submission made on behalf of the State as, on the facts and in the circumstances of this case we felt persuaded to send back the case to the Chief Settlement Commissioner. It will be open to the parties to make such submissions or raise such objections as may be available to them in law before the said authority when the case goes back to it. It may be emphasised, however, that indisputably after the land became a property acquired under section 12 of the Act the lessees came on the scene. They did not contest the claim of the appellant either before the Naib Tahsildar or the Civil Court. No one seems to have claimed that the State or any of its authorities had ever come in possession of the land in question. In such a situation justice require a reconsideration of the matter and a fresh decision by the authorities concerned by taking into account the order of theand the decree of the Civil Court subject to such objections as may be raised apropos their validity and on reappraisal of the oral evidence adduced by the appellant before the Settlement Officer. | 1 | 1,479 | 302 | ### 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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for setting aside the order aforesaid of the Settlement Officer. The Chief Settlement Commissioner by his order dated April 29, 1974 (Annexure 4) accepted the reference and set aside the order. The appellant went in revision under section 33 of the Act which was dismissed by the financial Commissioner by his order dated January 14, 1975 (Annexure 5). As already stated the petitioner was unsuccessful in assailing the last two orders before the High Court.It appears in or about the year 1954 the lessees of the land and cultivating it as such were Mahant Amar Nath, Smt. Shanto Bai and others-some displaced persons. The appellant ;also claims to be a displaced person. The lessees aforesaid, perhaps, ceased to cultivate the land and left Jullundur. The appellant claims that he has been cultivating the land continuously from about the year 1954 onwards. On the 1st of September, 1973 he filed an application before the Revenue authority for correction of the entry in Khasra Girdawari by recording his name therein. The Naib-Tahsildar, Jullundur by his order dated the 6th February, 1974 (Annexure 3) directed the correction of the Khasra Girdavarl for the period 1971-72 to Kharif 1973. He, did not direct the correction of the entry of the earlier period as he could not do so in accordance with the departmental instructions. The appellant filed Suit No. 185 of 1974 on the 9th of August, 1974 for correction of the entry for the earlier period. The lessees aforesaid were impleaded as defendants in the suit. In spite of service of summons, they did not appear to contest it. The suit was decreed ex-parte on the 31st March, 1975 by Shri Baldev Singh, Sub-Judge, Second Class, Jullundur. A copy of his judgment is Annexure 6. He declared the appellant as tenant of the land in dispute since 1954 and directed the correction of the. Jamabandi entries.4. The Chief Settlement Commissioner in his impugned order did not feel persuaded to place any reliance upon the testimony of the witnesses examined by the appellant absence of entries in the Revenue record viz. the Jamabandi or the Khasra Girdawari. The Financial Commissioner was also of the same view. Since he found the names of Amar Nath, Shanto Bai and others mentioned as cultivators, he did not feel persuaded to accept the case of the appellant. The Naib Tahsildar had corrected the entries in respect of the later period by the time the Financial Commissioner happened to pass his impugned order. But he did not attach any importance to it. Finally, the view expressed by the Financial Commissioner in his impugned order are in these Terms"I have already held in several cases that transfer of Urban agricultural land is strictly to be made on the basis of entries in the revenue record and no reliance is to be placed either on oral evidence or on the corrected entries in the Khasra Girdawaris. In the circumstances, I do not find any force in the petition which is dismissed in limine." Rule 34C of the Rules reads as follows, :"Where any land to which this Chapter applies has been leased to a displaced person and such lands consist of one or more Khasras and is valued at Rs. 10, 000/- or less, the land shall be allotted to the lessee:Provided that where any such land or any part thereof has been leased to a displaced person and the sub-lessee has been in occupation of such land or part thereof continuously from the 1st January, 1956, such land or part thereof, as the case may be, shall be allotted to such sub-lessee."It is not the requirement of the rule that a person claiming transfer under any part, of the said rule must be one whose name is found entered in the revenue records. The requirement of the rule is that the land to which Chapter VA applies shall be allotted to the lessee if it has been leased out to him and if he was a displaced person.5. The condition to be fulfilled under the proviso for a sub- lessee is his occupation of the land continuously from the 1st January, 1956. The entry in the revenue records is an important piece of evidence on the question of occupation or possession. But it is not conclusive of the factors to be decided under Rule 34C. Nor is it the law that a subsequent valid order passed by a competent authority or court directing the correction of the entries cannot be taken into consideration. Learned counsel for the State, respondent no. 1 in this appeal, submitted that neither the order of the Naib-Tahsildar nor the decree of the Civil Court was legal and valid as it was not passed in accordance With The Punjab Land Revenue Act, 1887. We have no t examined the correctness of this submission made on behalf of the State as, on the facts and in the circumstances of this case we felt persuaded to send back the case to the Chief Settlement Commissioner. It will be open to the parties to make such submissions or raise such objections as may be available to them in law before the said authority when the case goes back to it. It may be emphasised, however, that indisputably after the land became a property acquired under section 12 of the Act the lessees came on the scene. They did not contest the claim of the appellant either before the Naib Tahsildar or the Civil Court. No one seems to have claimed that the State or any of its authorities had ever come in possession of the land in question. In such a situation justice require a reconsideration of the matter and a fresh decision by the authorities concerned by taking into account the order of the Naib-Tahsildar and the decree of the Civil Court subject to such objections as may be raised apropos their validity and on reappraisal of the oral evidence adduced by the appellant before the Settlement Officer.
### Response:
1
### Explanation:
The condition to be fulfilled under the proviso for a sub- lessee is his occupation of the land continuously from the 1st January, 1956. The entry in the revenue records is an important piece of evidence on the question of occupation or possession. But it is not conclusive of the factors to be decided under Rule 34C. Nor is it the law that a subsequent valid order passed by a competent authority or court directing the correction of the entries cannot be taken into consideration.have no t examined the correctness of this submission made on behalf of the State as, on the facts and in the circumstances of this case we felt persuaded to send back the case to the Chief Settlement Commissioner. It will be open to the parties to make such submissions or raise such objections as may be available to them in law before the said authority when the case goes back to it. It may be emphasised, however, that indisputably after the land became a property acquired under section 12 of the Act the lessees came on the scene. They did not contest the claim of the appellant either before the Naib Tahsildar or the Civil Court. No one seems to have claimed that the State or any of its authorities had ever come in possession of the land in question. In such a situation justice require a reconsideration of the matter and a fresh decision by the authorities concerned by taking into account the order of theand the decree of the Civil Court subject to such objections as may be raised apropos their validity and on reappraisal of the oral evidence adduced by the appellant before the Settlement Officer.
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Bhaiyalal Vs. Harikishan Singh And Others | thus clear, that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. 9. In the present case, the notification refers to Chamar, Jatav or Mochi, and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Art. 341. In the case of B. Basavalingappa v. D. Munichinnappa, Civil Appeal No. 401 of 1964, dated 23-9-1964; (reported in AIR 1965 SC 1269 ), this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No. 1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be:"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A." That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted. 10. Whilst we are referring to this aspect of the matter, we may point out that the Order has taken good care to specify different castes under the same heading where enquiry showed that the same caste bore different names, or it had sub-castes which were entitled to be treated as scheduled castes for the purposes of the Order. In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1 entries 3 and 4 refer to the same castes by different names which shows either that the said castes are known differently or consist of different sub-castes. Likewise, item 2 entry 4 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in question. 11. Mr. Chatterjee attempted to argue that it was not competent to the President to specify the lists of Scheduled Castes by reference to different districts or sub-areas of the States. His argument was that what the President can do under Art. 341(1) is to specify the castes, races or tribes or parts thereof, but that must be done in relation to the entire State or the Union territory, as the case may be. In other words, says Mr. Chatterjee, the President cannot divide the State into different district or sub-areas and specify the castes, races or tribes for the purpose of Art. 341 (1). 12. In our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races, or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Art. 341 (1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the caste, races or tribes as may, appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question. Therefore, Mr. Chatterjee is in error when he contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1). 13. | 0[ds]. Thus, the question which arose between the parties for decision in the present proceedings is a question of fact and on this question both the Tribunal and the High Court, have made concurrent findings against the appellant. It is true that in reaching their conclusion on this point, the Tribunal as well as the High Court had to consider oral as well as documentary evidence; but in cases of this kind where the Tribunal and the High Court make concurrent finding son questions of fact, this court does not usually interfere; and after hearing Mr. Chatterjee we see no, reason to depart from our usual practice in this matterIt is true that some of these documents which had been discarded by the Election Tribunal as unworthy of credence or as irrelevant, have been accepted by the High Court as relevant and genuine. Even so, the High Court has come to the conclusion that these documents do not show satisfactorily that the Dohar caste is a sub-caste of the Chamar caste. In that connection, the High Court has pointed out that the documents relied upon by the appellant do not support his case that the Dohar caste is a sub-caste of the Chamar caste, and in that sense, they are not consistent with the plea made by the appellant in the present proceedings. We allowed Mr. Chatterjee to take us through the material evidence; and on considering the said evidence in the light of the criticism made by Mr. Chatterjee, we are satisfied that there is no reason to interfere with the concurrent finding recorded by the Tribunal and the High Court on the main question of fact. We must, accordingly, hold that the appellant does not belong to the Chamar caste and as such was not qualified, to contest the reserved seat for the scheduled caste of Chamars in the Constituency in questionIn the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1 entries 3 and 4 refer to the same castes by different names which shows either that the said castes are known differently or consist of different sub-castes. Likewise, item 2 entry 4 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in questionIn our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races, or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Art. 341 (1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the caste, races or tribes as may, appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question. Therefore, Mr. Chatterjee is in error when he contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1). | 0 | 2,999 | 881 | ### 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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thus clear, that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. 9. In the present case, the notification refers to Chamar, Jatav or Mochi, and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Art. 341. In the case of B. Basavalingappa v. D. Munichinnappa, Civil Appeal No. 401 of 1964, dated 23-9-1964; (reported in AIR 1965 SC 1269 ), this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No. 1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be:"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A." That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted. 10. Whilst we are referring to this aspect of the matter, we may point out that the Order has taken good care to specify different castes under the same heading where enquiry showed that the same caste bore different names, or it had sub-castes which were entitled to be treated as scheduled castes for the purposes of the Order. In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1 entries 3 and 4 refer to the same castes by different names which shows either that the said castes are known differently or consist of different sub-castes. Likewise, item 2 entry 4 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in question. 11. Mr. Chatterjee attempted to argue that it was not competent to the President to specify the lists of Scheduled Castes by reference to different districts or sub-areas of the States. His argument was that what the President can do under Art. 341(1) is to specify the castes, races or tribes or parts thereof, but that must be done in relation to the entire State or the Union territory, as the case may be. In other words, says Mr. Chatterjee, the President cannot divide the State into different district or sub-areas and specify the castes, races or tribes for the purpose of Art. 341 (1). 12. In our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races, or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Art. 341 (1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the caste, races or tribes as may, appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question. Therefore, Mr. Chatterjee is in error when he contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1). 13.
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. Thus, the question which arose between the parties for decision in the present proceedings is a question of fact and on this question both the Tribunal and the High Court, have made concurrent findings against the appellant. It is true that in reaching their conclusion on this point, the Tribunal as well as the High Court had to consider oral as well as documentary evidence; but in cases of this kind where the Tribunal and the High Court make concurrent finding son questions of fact, this court does not usually interfere; and after hearing Mr. Chatterjee we see no, reason to depart from our usual practice in this matterIt is true that some of these documents which had been discarded by the Election Tribunal as unworthy of credence or as irrelevant, have been accepted by the High Court as relevant and genuine. Even so, the High Court has come to the conclusion that these documents do not show satisfactorily that the Dohar caste is a sub-caste of the Chamar caste. In that connection, the High Court has pointed out that the documents relied upon by the appellant do not support his case that the Dohar caste is a sub-caste of the Chamar caste, and in that sense, they are not consistent with the plea made by the appellant in the present proceedings. We allowed Mr. Chatterjee to take us through the material evidence; and on considering the said evidence in the light of the criticism made by Mr. Chatterjee, we are satisfied that there is no reason to interfere with the concurrent finding recorded by the Tribunal and the High Court on the main question of fact. We must, accordingly, hold that the appellant does not belong to the Chamar caste and as such was not qualified, to contest the reserved seat for the scheduled caste of Chamars in the Constituency in questionIn the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1 entries 3 and 4 refer to the same castes by different names which shows either that the said castes are known differently or consist of different sub-castes. Likewise, item 2 entry 4 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in questionIn our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races, or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Art. 341 (1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the caste, races or tribes as may, appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question. Therefore, Mr. Chatterjee is in error when he contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1).
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Natraj Studios (P) Ltd Vs. Navrang Studios & Anr | Act that the question would arise to be determined by the High Court whether the relationship between the plaintiff and the defendant in the particular case before it was that as between landlord and tenant. If it came to the conclusion that it was not so, it would continue to have the jurisdiction to try the suit and would be able to try the suit on the merits to its logical conclusion. If, on the other hand, the High Court came to the conclusion that the relationship between the plaintiff and the defendant was as between landlord and tenant it would cease to have jurisdiction on that determination and the suit would be liable to be transferred to the Small Causes Court which, under Section 28 of Bombay Act LVII of 1974, would be the only court to have jurisdiction to try the suits as between landlords and tenants falling within the purview of Section 2823. In sabavva Kom Hanmappa Simpiger v. Basappa Andaneppa Chiniwar (1955 57 Bom LR 261 : AIR 1955 NUC 2315), the question directly arose, as in the present case, whether section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1974, excluded reference to arbitration of dispute relating to recovery of rent or possession of premises. It was held by a Division Bench of the Bombay High Court that the expression court occurring in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 included an arbitrator and therefore, the jurisdiction of the Arbitrator to make an award in respect of any dispute of the nature mentioned in Section 28 was excluded24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Fugraj Fain (1969 1 SCR 887 : AIR 1969 SC 1320 : 1970 40 Com Cas 187), the Court of small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent-licensor- landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant- licensee-tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee-tenant and the dispute between them relating to the possession of the licensee-tenant and the dispute between them relating to the possession of the licensed-demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the Arbitrator has none to adjudicate upon the dispute between the parties25. Learned counsel for the appellant further argued that the respondent had filed a written statement in the suit instituted by the appellant in the Court of Small Causes and was therefore, precluded from seeking reference to Arbitration26. On the other hand it was submitted by the learned counsel for the respondent that Section 40 of the Arbitration Act prevented the Small Cause Court from exercising any jurisdiction over arbitration proceedings. It was also urged that the questions at issue in the Court of Small Causes and before the arbitrator were not identical27. The suit was properly instituted in the Court of Small Causes and if the respondent wanted to rely upon the arbitration clause an application under Section 34 of the Arbitration Act should have been made to the Court of Small Causes before the written statement was filed. That was not done. It was said that the Court of Small Causes would have not Jurisdiction to stay the proceeding under Section 34 of the Act as it was precluded from exercising any jurisdiction over arbitration proceedings under Section 40. There is no substance in this argument. Section 40 of the Arbitration Act declares that a Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising thereout. We do not see how it can be said that the Court of Small Causes is exercising jurisdiction over any arbitration proceedings merely because the agreement between the parties contains an arbitration clause and the Court is asked to stay a proceeding before itself. The jurisdiction under Section 34 may be exercised by the judicial authority before which the proceedings are pending and not by the court which has jurisdiction over the arbitration proceedings. This is clear from the language of Section 4 of the Arbitration Act. An application under Section 34 is not an arbitration proceeding; nor is it an application arising thereout. The bar under Section 40 does not come in the way of the Court of Small Causes exercising jurisdiction under Section 34 of the Arbitration Act to stay a proceeding pending before it. If authority is necessary for this proposition it may be found in Chadha Motor Transport Co. (P) Ltd., Delhi v. R. N. Chopra (AIR 1968 Del 75 : 1967 69 Pun LR (D) 154), and Basanti Cotton Mills v. Dhingra Brothers (AIR 1949 Cal 684 ). The submission that there is not identity of dispute is also without substance. As already pointed out by us the dispute is between the licensor-landlord and licensee-tenant about the right to possess two Studios and other premises. The identity of the dispute is clear from a pleadings in the suit in the Court of Small Causes and the petition for reference to Arbitration filed in the High Court. | 1[ds]We are of the view thatthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, applied to a licence to use a building even if the building is to be used necessary and simultaneously along with machinery and fixture separately licensed to be used. In such a situation there can be no question of the licence to use the machinery etc. and the licence to use the building being dominant and subsidiary purposes of the agreement as suggested by Shri Mridul in his argument. The submission of Shri Mridul that the agreement was primarily a licence to carry on the business of shooting films by using the machinery and equipments listed in the agreement and that the licence to use the building was only a subsidiary incident of the dominate purpose of the agreement does not appeal to us. On the construction placed by us upon the provisions ofthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the two Studios given on licence would still be premises given on licence for business within the meaning of the Act so as to attract its protective provisions15. At this junction we may refer to the terms of the agreement. The agreement provided for (1) "leave and licence in respect of Studios 2 and 3 duly sound proofed and electrified and other premises more particularly described in List 1 hereto annexed situated at 194 Kurla Road, Andheri, Bombay, on a monthly compensation of Rs. 250 including sound proofing and electrification" and (2) "leave and licence in respect of the machineries, lights, equipments, setting and property materials etc. mentioned in List 2 hereto annexed on a monthly compensation of Rs. 7500". The two licences, it was stipulated, were to be "in force and operation simultaneously and together" and "not subject to divisibility". The licensees were entitled to carry on their work of producing motion picture films in the Studios and the machineries and other equipments were to be used for that purpose only. The licensees were also entitled to permit the use of the Studios and other premises, machineries and other articles temporarily, by others, whomsoever they like during the subsistence of the licences for the purpose of producing motion pictures only. Property tax and other taxes were to be borne and paid by the licences while the licensees were required to pay for the consumption of electricity and water. During the subsistence of the licences the licensees were not to part with the possession of the Studios and other premises, machineries and equipments. The Studios and other premises, machineries and equipments were to be used by the licensees in a prudent manner. The agreement further stipulated that no tenancy rights were to be understood as having been created by the licensors in favour of the licensees. The interest created was that of licensees only. The licensees were to carry on their business of motion picture films production in the licenced premises under the name and style of Natraj Studios (P) Ltd. The agreement is thus seen to be a composite agreement which gave leave and licence (1) to use the Studios and other premises for producing films and (2) to use the machinery and equipment for the same purpose. The licensors parted with possession of the Studios and the machinery in favour of the licensees. Notwithstanding the fact that the agreement was a composite one and the two licences were to operate simultaneously and together, there could be no gainsaying the fact that the Studios and other premises were certainly given on licence for the business of producing films. The parties themselves were conscious that the licence granted by the licensor in favour of the licensee was in respect of the Studios and other premises and that there was even a risk of the licence being construed as a lease. So they were anxious, at that stage, to emphasise that what was granted was a licence and not a lease. That was obviously to circumvent the provisions of the Bombay Rents, Hotel and Lodging house Rates Control Act, 1947, It was apparently though that the sophisticated description of the transaction as a licence instead of a lease would take it out of the clutches of the Bombay Rents, Hotel and Lodging House Rates Control Act. It was precisely the typed of agreement that forced the hand of the legislature to intervence and amend the Act by introducing Section 15-A by which such licensees were deemed to be tenants of the landlord16. We may now proceed to consider the submission that the Court of Small Causes alone has exclusive jurisdiction to resolve the dispute between the parties. Section 28(1) of the Bombay Rent Act, positively, confers jurisdiction on the Court of Small Causes to entertain and try any suit or proceeding between a landlord and tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee relating to the recovery of licence fee or charge and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions, and negatively it excludes the jurisdiction of any other court from entertaining any such suit, proceeding or application or dealing with such claim orThe suit was properly instituted in the Court of Small Causes and if the respondent wanted to rely upon the arbitration clause an application under Section 34 of the Arbitration Act should have been made to the Court of Small Causes before the written statement was filed. That was not done. It was said that the Court of Small Causes would have not Jurisdiction to stay the proceeding under Section 34 of the Act as it was precluded from exercising any jurisdiction over arbitration proceedings under Section 40. There is no substance in this argument. Section 40 of the Arbitration Act declares that a Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising thereout. We do not see how it can be said that the Court of Small Causes is exercising jurisdiction over any arbitration proceedings merely because the agreement between the parties contains an arbitration clause and the Court is asked to stay a proceeding before itself. The jurisdiction under Section 34 may be exercised by the judicial authority before which the proceedings are pending and not by the court which has jurisdiction over the arbitration proceedings. This is clear from the language of Section 4 of the Arbitration Act. An application under Section 34 is not an arbitration proceeding; nor is it an application arising thereout. The bar under Section 40 does not come in the way of the Court of Small Causes exercising jurisdiction under Section 34 of the Arbitration Act to stay a proceeding pending before it. If authority is necessary for this proposition it may be found in Chadha Motor Transport Co. (P) Ltd., Delhi v. R. N. Chopra (AIR 1968 Del 75 : 1967 69 Pun LR (D) 154), and Basanti Cotton Mills v. Dhingra Brothers (AIR 1949 Cal 684 ). The submission that there is not identity of dispute is also without substance. As already pointed out by us the dispute is between the licensor-landlord and licensee-tenant about the right to possess two Studios and other premises. The identity of the dispute is clear from a pleadings in the suit in the Court of Small Causes and the petition for reference to Arbitration filed in the High Court.In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 ofthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Fugraj Fain (1969 1 SCR 887 : AIR 1969 SC 1320 : 1970 40 Com Cas 187), the Court of small Causes has and the arbitrator has not the jurisdiction to decide the question whether thelandlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellantThat this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that ofnt and the dispute between them relating to the possession of theand the dispute between them relating to the possession of thepremises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the Arbitrator has none to adjudicate upon the dispute between the parties | 1 | 7,347 | 1,620 | ### Instruction:
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Act that the question would arise to be determined by the High Court whether the relationship between the plaintiff and the defendant in the particular case before it was that as between landlord and tenant. If it came to the conclusion that it was not so, it would continue to have the jurisdiction to try the suit and would be able to try the suit on the merits to its logical conclusion. If, on the other hand, the High Court came to the conclusion that the relationship between the plaintiff and the defendant was as between landlord and tenant it would cease to have jurisdiction on that determination and the suit would be liable to be transferred to the Small Causes Court which, under Section 28 of Bombay Act LVII of 1974, would be the only court to have jurisdiction to try the suits as between landlords and tenants falling within the purview of Section 2823. In sabavva Kom Hanmappa Simpiger v. Basappa Andaneppa Chiniwar (1955 57 Bom LR 261 : AIR 1955 NUC 2315), the question directly arose, as in the present case, whether section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1974, excluded reference to arbitration of dispute relating to recovery of rent or possession of premises. It was held by a Division Bench of the Bombay High Court that the expression court occurring in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 included an arbitrator and therefore, the jurisdiction of the Arbitrator to make an award in respect of any dispute of the nature mentioned in Section 28 was excluded24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Fugraj Fain (1969 1 SCR 887 : AIR 1969 SC 1320 : 1970 40 Com Cas 187), the Court of small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent-licensor- landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant- licensee-tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee-tenant and the dispute between them relating to the possession of the licensee-tenant and the dispute between them relating to the possession of the licensed-demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the Arbitrator has none to adjudicate upon the dispute between the parties25. Learned counsel for the appellant further argued that the respondent had filed a written statement in the suit instituted by the appellant in the Court of Small Causes and was therefore, precluded from seeking reference to Arbitration26. On the other hand it was submitted by the learned counsel for the respondent that Section 40 of the Arbitration Act prevented the Small Cause Court from exercising any jurisdiction over arbitration proceedings. It was also urged that the questions at issue in the Court of Small Causes and before the arbitrator were not identical27. The suit was properly instituted in the Court of Small Causes and if the respondent wanted to rely upon the arbitration clause an application under Section 34 of the Arbitration Act should have been made to the Court of Small Causes before the written statement was filed. That was not done. It was said that the Court of Small Causes would have not Jurisdiction to stay the proceeding under Section 34 of the Act as it was precluded from exercising any jurisdiction over arbitration proceedings under Section 40. There is no substance in this argument. Section 40 of the Arbitration Act declares that a Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising thereout. We do not see how it can be said that the Court of Small Causes is exercising jurisdiction over any arbitration proceedings merely because the agreement between the parties contains an arbitration clause and the Court is asked to stay a proceeding before itself. The jurisdiction under Section 34 may be exercised by the judicial authority before which the proceedings are pending and not by the court which has jurisdiction over the arbitration proceedings. This is clear from the language of Section 4 of the Arbitration Act. An application under Section 34 is not an arbitration proceeding; nor is it an application arising thereout. The bar under Section 40 does not come in the way of the Court of Small Causes exercising jurisdiction under Section 34 of the Arbitration Act to stay a proceeding pending before it. If authority is necessary for this proposition it may be found in Chadha Motor Transport Co. (P) Ltd., Delhi v. R. N. Chopra (AIR 1968 Del 75 : 1967 69 Pun LR (D) 154), and Basanti Cotton Mills v. Dhingra Brothers (AIR 1949 Cal 684 ). The submission that there is not identity of dispute is also without substance. As already pointed out by us the dispute is between the licensor-landlord and licensee-tenant about the right to possess two Studios and other premises. The identity of the dispute is clear from a pleadings in the suit in the Court of Small Causes and the petition for reference to Arbitration filed in the High Court.
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agreement which gave leave and licence (1) to use the Studios and other premises for producing films and (2) to use the machinery and equipment for the same purpose. The licensors parted with possession of the Studios and the machinery in favour of the licensees. Notwithstanding the fact that the agreement was a composite one and the two licences were to operate simultaneously and together, there could be no gainsaying the fact that the Studios and other premises were certainly given on licence for the business of producing films. The parties themselves were conscious that the licence granted by the licensor in favour of the licensee was in respect of the Studios and other premises and that there was even a risk of the licence being construed as a lease. So they were anxious, at that stage, to emphasise that what was granted was a licence and not a lease. That was obviously to circumvent the provisions of the Bombay Rents, Hotel and Lodging house Rates Control Act, 1947, It was apparently though that the sophisticated description of the transaction as a licence instead of a lease would take it out of the clutches of the Bombay Rents, Hotel and Lodging House Rates Control Act. It was precisely the typed of agreement that forced the hand of the legislature to intervence and amend the Act by introducing Section 15-A by which such licensees were deemed to be tenants of the landlord16. We may now proceed to consider the submission that the Court of Small Causes alone has exclusive jurisdiction to resolve the dispute between the parties. Section 28(1) of the Bombay Rent Act, positively, confers jurisdiction on the Court of Small Causes to entertain and try any suit or proceeding between a landlord and tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee relating to the recovery of licence fee or charge and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions, and negatively it excludes the jurisdiction of any other court from entertaining any such suit, proceeding or application or dealing with such claim orThe suit was properly instituted in the Court of Small Causes and if the respondent wanted to rely upon the arbitration clause an application under Section 34 of the Arbitration Act should have been made to the Court of Small Causes before the written statement was filed. That was not done. It was said that the Court of Small Causes would have not Jurisdiction to stay the proceeding under Section 34 of the Act as it was precluded from exercising any jurisdiction over arbitration proceedings under Section 40. There is no substance in this argument. Section 40 of the Arbitration Act declares that a Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising thereout. We do not see how it can be said that the Court of Small Causes is exercising jurisdiction over any arbitration proceedings merely because the agreement between the parties contains an arbitration clause and the Court is asked to stay a proceeding before itself. The jurisdiction under Section 34 may be exercised by the judicial authority before which the proceedings are pending and not by the court which has jurisdiction over the arbitration proceedings. This is clear from the language of Section 4 of the Arbitration Act. An application under Section 34 is not an arbitration proceeding; nor is it an application arising thereout. The bar under Section 40 does not come in the way of the Court of Small Causes exercising jurisdiction under Section 34 of the Arbitration Act to stay a proceeding pending before it. If authority is necessary for this proposition it may be found in Chadha Motor Transport Co. (P) Ltd., Delhi v. R. N. Chopra (AIR 1968 Del 75 : 1967 69 Pun LR (D) 154), and Basanti Cotton Mills v. Dhingra Brothers (AIR 1949 Cal 684 ). The submission that there is not identity of dispute is also without substance. As already pointed out by us the dispute is between the licensor-landlord and licensee-tenant about the right to possess two Studios and other premises. The identity of the dispute is clear from a pleadings in the suit in the Court of Small Causes and the petition for reference to Arbitration filed in the High Court.In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 ofthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Fugraj Fain (1969 1 SCR 887 : AIR 1969 SC 1320 : 1970 40 Com Cas 187), the Court of small Causes has and the arbitrator has not the jurisdiction to decide the question whether thelandlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellantThat this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that ofnt and the dispute between them relating to the possession of theand the dispute between them relating to the possession of thepremises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the Arbitrator has none to adjudicate upon the dispute between the parties
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The Rajah Of Vizianagaram Vs. Official Receiver, Vizianagaram | up the forensic rules which govern the conduct of its own liquidation. This makes it clear that the liquidation of the company in countries other than where the company is incorporated and has its principal office, is just ancillary to the simultaneous liquidation of that company in the country of its domicil or any winding. up of the company in future. That is to say, the winding up of the company in those countries is just complementary to the winding up of the company in the country of its domicil. The rights and liabilities of the creditors and contributories respectively when a company is would up in the country of its domicil will be limited to their original rights and liabilities after taking into consideration how much of those rights and liabilities have been already satisfied during the winding up proceedings of its offices in other countries. 21. In Russian and English Bank v. Baring Brothers and Co. (No. 3), 1986-1 All ER 505, the facts were that the Bank incorporated in Russia under Russian law, with its head office at Petrograd, was dissolved sometime in January 1918. This Bank had a branch in England. The London branch of the Bank had two large sums of money with Baring Brothers. On March 23,1921, the Bank brought an action against the Baring Brothers in the Chancery Division of the High Court of Justice for the recovery of those sums. The Baring Brothers prayed that all further proceedings in the action be stayed on the found that the action had been commence or, at all events, was being continued in the name of a plaintiff who was non-existent. In considering this matter, Lord Atkin said at page 518 : The legislature has provided that a dissolved foreign corporation may be wound up in accordance with the provisions of the Companies Act. The provisions of the Companies Act as to winding up are only applicable to corporations which are in existence. Are we to say that the legislative enactment is completely futile: or is there another solution? My Lords, I think that we are entitled to imply, indeed I think it is a necessary implication, that the dissolved foreign company is to be wound up as though it had not been dissolved an therefore continued in existence. This seems to me with respect the necessary result of saying that it shall be wound up in accordance with the provisions of the Act. . . . . . I see nothing incongruous in the legislature saying in effect, we accept the existence of a foreign corporation coming to trade in this country; we shall only impose a condition of registration. But if the corporation does trade here, acquires assets here, and incurs debts here, we shall not accept its dissolution abroad without a stipulation that if desirable it may be wound up here so that its assets here shall be distributed amongst its creditors (I do not stay to consider whether its English creditors or creditors generally) and for the purpose of the winding up it shall be deemed not to have been dissolved: for that event would defeat our municipal provisions for winding up a corporation. This does not appear to me to be re-creating or reconstituting a new corporation; it is for particular and limited purposes refusing to recognise the dissolution of the old. It is clear from these observations that the winding up of the dissolved company incorporated in Russia was deemed to be the winding up of that very company and not of any fictitious company composed of the branch of that company in England. The main question before us however was deliberately left open for consideration later. The observations however go against the appellants contention that the so called unregistered company which is being wound up should be deemed to be a separate entity from the original company incorporated in England. 22. In Re Azoff-Don Commercial Bank, 1954-1 All ER 947, proceedings for the winding up of a Russian company which had been carrying on business in England was taken in England. This company had been dissolved prior to the proceedings under the laws of the Union of Soviet Socialist Republics. The petitioners for the winding up of this company were certain Norwegian Banks who were creditors of the company. The petition was opposed by the Crown and another person who was held to have no locus stand to object, of the grounds on which the Crown objected to the petition, one was that the Court should not make a winding up order at the suit of foreign creditors in respect of debts payable in Norwegian kroner, but that it should leave the Crown to get in the English assets with a view to the Crown being in a position to make ex-gratia payments among English creditors in respect of rouble debts. In considering this objection it was said at page 956: The object of a winding-up order is to ensure distribution of the assets among the whole body of creditors. No other basis of distribution would be fair. 23. In 1958-1 Ch 76, a creditor applied for the winding up of a company incorporated in the Republic of Ireland and having a place of business and assets in the United Kingdom. A request was made that the winding up order should include the expression that the Liquidator shall not act in pursuance of the order except for the purpose of getting in the English assets and settling the list of the English creditors without applying to the Court for directions. It was held that the provisions of the Companies Act, 1948, do not provide for making such exceptions in the winding up order. 24.We are therefore of opinion that both on account of the specific provisions of the Act and of the general principles, the view taken by the Court below that foreign creditors can prove their claims in the winding up of the unregistered company is correct. | 0[ds]15. The Courts of a country dealing with the winding up of a company can ordinarily, deal with the assets within their jurisdiction and not with the assets of the company outside their jurisdiction. It is therefore necessary that if a company carries on business in countries other than the country in which it is incorporated, the Courts of those countries too should be able to conduct winding-up proceedings of its business, in their respective countries. Such winding up of the business in a country other than the country in which the company was incorporated is really an ancillary winding up of the train company whose winding up may have already been taken up in that country or may be taken up at the proper time16. It appears that so long as the company as such is able to carry on business profitably and be in a position to meet its liabilities, neither the company nor its creditor nor its contributory would think of the winding up proceedings even if the company ceases to carry on business in any particular country. The persons interested in the company will be getting their proper return on the amount lent or contributed. Ordinarily, the winding up of the company will be proceeding simultaneously in the various countries where it carried on business whenever the business of the company has ceased to be profitable and the company is reduced to a position in which it is not expected to make good its liabilities17. It is the company incorporated outside India which is really wound up as an un-registered company in this country. In fact, there is no separate un-registered company which is being wound up here. The various branch offices of the company in India cannot be deemed to be the branches of an independent unregistered company. Sub-section (3) of S. 271 itself says that the company incorporated outside India may be wound up as an un-registered company when it ceases to carry on business in India. Further, there are no separate creditors or contributories of the so called un-registered company. There are no separate creditors or contributories of the offices or branches of the company in India. All the creditors and contributories are really creditors and contributories of the company incorporated outside India and therefore all of them on principle, should be able to do what creditors and contributories resident in India can do in the winding up proceedings18. There has been case law with respect to the nature of winding of proceedings in the various countries and the procedure followed in such winding upIt is clear from these observations that the winding up of the dissolved company incorporated in Russia was deemed to be the winding up of that very company and not of any fictitious company composed of the branch of that company in England. The main question before us however was deliberately left open for consideration later. The observations however go against the appellants contention that the so called unregistered company which is being wound up should be deemed to be a separate entity from the original company incorporated in England23. In 1958-1 Ch 76, a creditor applied for the winding up of a company incorporated in the Republic of Ireland and having a place of business and assets in the United Kingdom. A request was made that the winding up order should include the expression that the Liquidator shall not act in pursuance of the order except for the purpose of getting in the English assets and settling the list of the English creditors without applying to the Court for directions. It was held that the provisions of the Companies Act, 1948, do not provide for making such exceptions in the winding up order24.We are therefore of opinion that both on account of the specific provisions of the Act and of the general principles, the view taken by the Court below that foreign creditors can prove their claims in the winding up of the unregistered company is correct. | 0 | 3,981 | 708 | ### 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:
up the forensic rules which govern the conduct of its own liquidation. This makes it clear that the liquidation of the company in countries other than where the company is incorporated and has its principal office, is just ancillary to the simultaneous liquidation of that company in the country of its domicil or any winding. up of the company in future. That is to say, the winding up of the company in those countries is just complementary to the winding up of the company in the country of its domicil. The rights and liabilities of the creditors and contributories respectively when a company is would up in the country of its domicil will be limited to their original rights and liabilities after taking into consideration how much of those rights and liabilities have been already satisfied during the winding up proceedings of its offices in other countries. 21. In Russian and English Bank v. Baring Brothers and Co. (No. 3), 1986-1 All ER 505, the facts were that the Bank incorporated in Russia under Russian law, with its head office at Petrograd, was dissolved sometime in January 1918. This Bank had a branch in England. The London branch of the Bank had two large sums of money with Baring Brothers. On March 23,1921, the Bank brought an action against the Baring Brothers in the Chancery Division of the High Court of Justice for the recovery of those sums. The Baring Brothers prayed that all further proceedings in the action be stayed on the found that the action had been commence or, at all events, was being continued in the name of a plaintiff who was non-existent. In considering this matter, Lord Atkin said at page 518 : The legislature has provided that a dissolved foreign corporation may be wound up in accordance with the provisions of the Companies Act. The provisions of the Companies Act as to winding up are only applicable to corporations which are in existence. Are we to say that the legislative enactment is completely futile: or is there another solution? My Lords, I think that we are entitled to imply, indeed I think it is a necessary implication, that the dissolved foreign company is to be wound up as though it had not been dissolved an therefore continued in existence. This seems to me with respect the necessary result of saying that it shall be wound up in accordance with the provisions of the Act. . . . . . I see nothing incongruous in the legislature saying in effect, we accept the existence of a foreign corporation coming to trade in this country; we shall only impose a condition of registration. But if the corporation does trade here, acquires assets here, and incurs debts here, we shall not accept its dissolution abroad without a stipulation that if desirable it may be wound up here so that its assets here shall be distributed amongst its creditors (I do not stay to consider whether its English creditors or creditors generally) and for the purpose of the winding up it shall be deemed not to have been dissolved: for that event would defeat our municipal provisions for winding up a corporation. This does not appear to me to be re-creating or reconstituting a new corporation; it is for particular and limited purposes refusing to recognise the dissolution of the old. It is clear from these observations that the winding up of the dissolved company incorporated in Russia was deemed to be the winding up of that very company and not of any fictitious company composed of the branch of that company in England. The main question before us however was deliberately left open for consideration later. The observations however go against the appellants contention that the so called unregistered company which is being wound up should be deemed to be a separate entity from the original company incorporated in England. 22. In Re Azoff-Don Commercial Bank, 1954-1 All ER 947, proceedings for the winding up of a Russian company which had been carrying on business in England was taken in England. This company had been dissolved prior to the proceedings under the laws of the Union of Soviet Socialist Republics. The petitioners for the winding up of this company were certain Norwegian Banks who were creditors of the company. The petition was opposed by the Crown and another person who was held to have no locus stand to object, of the grounds on which the Crown objected to the petition, one was that the Court should not make a winding up order at the suit of foreign creditors in respect of debts payable in Norwegian kroner, but that it should leave the Crown to get in the English assets with a view to the Crown being in a position to make ex-gratia payments among English creditors in respect of rouble debts. In considering this objection it was said at page 956: The object of a winding-up order is to ensure distribution of the assets among the whole body of creditors. No other basis of distribution would be fair. 23. In 1958-1 Ch 76, a creditor applied for the winding up of a company incorporated in the Republic of Ireland and having a place of business and assets in the United Kingdom. A request was made that the winding up order should include the expression that the Liquidator shall not act in pursuance of the order except for the purpose of getting in the English assets and settling the list of the English creditors without applying to the Court for directions. It was held that the provisions of the Companies Act, 1948, do not provide for making such exceptions in the winding up order. 24.We are therefore of opinion that both on account of the specific provisions of the Act and of the general principles, the view taken by the Court below that foreign creditors can prove their claims in the winding up of the unregistered company is correct.
### Response:
0
### Explanation:
15. The Courts of a country dealing with the winding up of a company can ordinarily, deal with the assets within their jurisdiction and not with the assets of the company outside their jurisdiction. It is therefore necessary that if a company carries on business in countries other than the country in which it is incorporated, the Courts of those countries too should be able to conduct winding-up proceedings of its business, in their respective countries. Such winding up of the business in a country other than the country in which the company was incorporated is really an ancillary winding up of the train company whose winding up may have already been taken up in that country or may be taken up at the proper time16. It appears that so long as the company as such is able to carry on business profitably and be in a position to meet its liabilities, neither the company nor its creditor nor its contributory would think of the winding up proceedings even if the company ceases to carry on business in any particular country. The persons interested in the company will be getting their proper return on the amount lent or contributed. Ordinarily, the winding up of the company will be proceeding simultaneously in the various countries where it carried on business whenever the business of the company has ceased to be profitable and the company is reduced to a position in which it is not expected to make good its liabilities17. It is the company incorporated outside India which is really wound up as an un-registered company in this country. In fact, there is no separate un-registered company which is being wound up here. The various branch offices of the company in India cannot be deemed to be the branches of an independent unregistered company. Sub-section (3) of S. 271 itself says that the company incorporated outside India may be wound up as an un-registered company when it ceases to carry on business in India. Further, there are no separate creditors or contributories of the so called un-registered company. There are no separate creditors or contributories of the offices or branches of the company in India. All the creditors and contributories are really creditors and contributories of the company incorporated outside India and therefore all of them on principle, should be able to do what creditors and contributories resident in India can do in the winding up proceedings18. There has been case law with respect to the nature of winding of proceedings in the various countries and the procedure followed in such winding upIt is clear from these observations that the winding up of the dissolved company incorporated in Russia was deemed to be the winding up of that very company and not of any fictitious company composed of the branch of that company in England. The main question before us however was deliberately left open for consideration later. The observations however go against the appellants contention that the so called unregistered company which is being wound up should be deemed to be a separate entity from the original company incorporated in England23. In 1958-1 Ch 76, a creditor applied for the winding up of a company incorporated in the Republic of Ireland and having a place of business and assets in the United Kingdom. A request was made that the winding up order should include the expression that the Liquidator shall not act in pursuance of the order except for the purpose of getting in the English assets and settling the list of the English creditors without applying to the Court for directions. It was held that the provisions of the Companies Act, 1948, do not provide for making such exceptions in the winding up order24.We are therefore of opinion that both on account of the specific provisions of the Act and of the general principles, the view taken by the Court below that foreign creditors can prove their claims in the winding up of the unregistered company is correct.
|
Gwalior Sugar Co.Ltd Vs. Anil Gupta | than agricultural purposes. The rights and liabilities of the lessee of such land shall be such as may be defined by the terms of his lease.Special leases for agricultural purposes – (1) In order to develop and demonstrate farming by mechanical means or in view of the special circumstances of [The words “or place of land” are inserted by M.B. Act No. 18 of1952] [any tract or piece of land] the Government may also grant leases of land for agricultural purposes on special and specified conditions. The rights and liabilities of the lessee of such land shall be such as may be defined by the terms of the lease.2) The Government may either generally or specially delegate any of its powers under this section to such officer as may be specified in this behalf.” Section 39 of the M.B. Zamindari Abolition Act “39. Grant of fresh lease for land given for purposes other than agricultureA person who has taken land on lease from the proprietor for any purpose other than agriculture shall apply within six months from the date of vesting, to obtain from the Government a new lease under Section 101 (1) of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, and the Government may grant a lease subject to such terms and conditions for securing the rent and utility of land as may be deemed proper. From the date of vesting up to the grant of new lease the person shall be deemed to be a lessee of the Government for that land on the same conditions on which the lease was granted to him by the proprietor. If the Government does not think it proper in the public interest to grant the lease, the amount of compensation shall be paid at market value.” 12. At the very outset, it must be made clear that the provisions of the Zamindari Abolition Act, 1951, have been pressed into service for the first time in the present appeal. Neither in the pleadings nor in the arguments made before the High Court on behalf of the State, the facts now asserted and the legal issues now raised had been urged. However, the question raised being with regard to the effect of a statutory enactment we have considered the same. In the absence of any pleading that the procedure for grant of a fresh lease contemplated under section 39 of the Zamindari Abolition Act had not been followed by the appellant by making the requisite application as contemplated by section 101 of the Tenancy Act, no adverse consequence can be attributed to the appellant as contended on behalf of the State. Rather, the status of the appellant as a bhumiswami recorded in the revenue records of the later years, in the absence of any contrary material, will have to be understood to be pursuant to the grant of a fresh lease under section 39 of the Zamindari Abolition Act read with the provisions of section 101 of the Tenancy Act. Infact, acceptance of the acquisition of the status of bhumiswami by the appellant in the aforesaid manner will render it unnecessary for us to go into the basis of the acquisition of the said status as argued by the learned counsel for the appellant, which, in any case, appears to be contrary to the provision of section 1(2) of the Tenancy Act. The said provision clearly excludes the villages settled under the Zamindari system from the purview of the operation of Part II of the Tenancy Act, which part of the Act, inter alia, also deals with the acquisition of the status of “pucca tenant” and “Bhumiswami” by a tenant. However obliteration of Part II of the Tenancy Act by operation of section 1(2) thereof does not extinguish the different denominations of tenancy including the status of Bhumiswami which can very well be acquired by grant of such status by a fresh lease under sections 101 of the Tenancy Act read with section 39 of the M.B. Zamindari Abolition Act.13. The rights of a bhumiswami are clearly enumerated by Section 165 of the MP Land Revenue Code which encompasses a right to transfer. The bar imposed on the right to transfer does not apply to non-agricultural lands and, hence, would not be relevant to the present case. If the right of transfer has been conferred on the appellant by the provisions of a statute and the bar contemplated does not apply to the appellant, we do not see how a clause or a condition in the original patta granted by the Zamindar in samvat 1978-79 (corresponding to English Calender year 1940-41) can restrict such a right. In any case, there is no specific clause or condition in any of the original pattas prohibiting or even restricting the right of the appellant to transfer any part of the land allotted to it that may be lying vacant. Neither any material has been placed before us to enable us to take the view that under terms of the lease granted under Section 101 of Tenancy Act and Section 39 of Abolition of Zamindari Act any restriction or bar had been imposed on the appellant – Company from making such a transfer.14. In view of the aforesaid conclusions the issue with regard to applicability of the Urban Land Ceiling Act and the Ceiling on Agricultural Holding Act, need not detains us, save and except to hold that the provisions of either of the aforesaid Acts, ex-facie, do not apply to the case of the appellant – Company. We would further like to observe on the view taken by us it is not necessary to go into the question as to whether the decree affirmed by the High Court of Madhya Pradesh in S.A. No.482 of 2002 binds the State or whether the same is in respect of the entire land holding of the appellant – Company or only a part thereof.15. In view of the foregoing discussions and conclusions reached | 1[ds]12. At the very outset, it must be made clear that the provisions of the Zamindari Abolition Act, 1951, have been pressed into service for the first time in the present appeal. Neither in the pleadings nor in the arguments made before the High Court on behalf of the State, the facts now asserted and the legal issues now raised had been urged. However, the question raised being with regard to the effect of a statutory enactment we have considered the same. In the absence of any pleading that the procedure for grant of a fresh lease contemplated under section 39 of the Zamindari Abolition Act had not been followed by the appellant by making the requisite application as contemplated by section 101 of the Tenancy Act, no adverse consequence can be attributed to the appellant as contended on behalf of the State. Rather, the status of the appellant as a bhumiswami recorded in the revenue records of the later years, in the absence of any contrary material, will have to be understood to be pursuant to the grant of a fresh lease under section 39 of the Zamindari Abolition Act read with the provisions of section 101 of the Tenancy Act. Infact, acceptance of the acquisition of the status of bhumiswami by the appellant in the aforesaid manner will render it unnecessary for us to go into the basis of the acquisition of the said status as argued by the learned counsel for the appellant, which, in any case, appears to be contrary to the provision of section 1(2) of the Tenancy Act. The said provision clearly excludes the villages settled under the Zamindari system from the purview of the operation of Part II of the Tenancy Act, which part of the Act, inter alia, also deals with the acquisition of the status ofby a tenant. However obliteration of Part II of the Tenancy Act by operation of section 1(2) thereof does not extinguish the different denominations of tenancy including the status of Bhumiswami which can very well be acquired by grant of such status by a fresh lease under sections 101 of the Tenancy Act read with section 39 of the M.B. Zamindari Abolition Act.13. The rights of a bhumiswami are clearly enumerated by Section 165 of the MP Land Revenue Code which encompasses a right to transfer. The bar imposed on the right to transfer does not apply to non-agricultural lands and, hence, would not be relevant to the present case. If the right of transfer has been conferred on the appellant by the provisions of a statute and the bar contemplated does not apply to the appellant, we do not see how a clause or a condition in the original patta granted by the Zamindar in samvat 1978-79 (corresponding to English Calender year 1940-41) can restrict such a right. In any case, there is no specific clause or condition in any of the original pattas prohibiting or even restricting the right of the appellant to transfer any part of the land allotted to it that may be lying vacant. Neither any material has been placed before us to enable us to take the view that under terms of the lease granted under Section 101 of Tenancy Act and Section 39 of Abolition of Zamindari Act any restriction or bar had been imposed on the appellant – Company from making such a transfer.14. In view of the aforesaid conclusions the issue with regard to applicability of the Urban Land Ceiling Act and the Ceiling on Agricultural Holding Act, need not detains us, save and except to hold that the provisions of either of the aforesaid Acts, ex-facie, do not apply to the case of the appellant – Company. We would further like to observe on the view taken by us it is not necessary to go into the question as to whether the decree affirmed by the High Court of Madhya Pradesh in S.A. No.482 of 2002 binds the State or whether the same is in respect of the entire land holding of the appellant – Company or only a part thereof. | 1 | 3,192 | 738 | ### 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:
than agricultural purposes. The rights and liabilities of the lessee of such land shall be such as may be defined by the terms of his lease.Special leases for agricultural purposes – (1) In order to develop and demonstrate farming by mechanical means or in view of the special circumstances of [The words “or place of land” are inserted by M.B. Act No. 18 of1952] [any tract or piece of land] the Government may also grant leases of land for agricultural purposes on special and specified conditions. The rights and liabilities of the lessee of such land shall be such as may be defined by the terms of the lease.2) The Government may either generally or specially delegate any of its powers under this section to such officer as may be specified in this behalf.” Section 39 of the M.B. Zamindari Abolition Act “39. Grant of fresh lease for land given for purposes other than agricultureA person who has taken land on lease from the proprietor for any purpose other than agriculture shall apply within six months from the date of vesting, to obtain from the Government a new lease under Section 101 (1) of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, and the Government may grant a lease subject to such terms and conditions for securing the rent and utility of land as may be deemed proper. From the date of vesting up to the grant of new lease the person shall be deemed to be a lessee of the Government for that land on the same conditions on which the lease was granted to him by the proprietor. If the Government does not think it proper in the public interest to grant the lease, the amount of compensation shall be paid at market value.” 12. At the very outset, it must be made clear that the provisions of the Zamindari Abolition Act, 1951, have been pressed into service for the first time in the present appeal. Neither in the pleadings nor in the arguments made before the High Court on behalf of the State, the facts now asserted and the legal issues now raised had been urged. However, the question raised being with regard to the effect of a statutory enactment we have considered the same. In the absence of any pleading that the procedure for grant of a fresh lease contemplated under section 39 of the Zamindari Abolition Act had not been followed by the appellant by making the requisite application as contemplated by section 101 of the Tenancy Act, no adverse consequence can be attributed to the appellant as contended on behalf of the State. Rather, the status of the appellant as a bhumiswami recorded in the revenue records of the later years, in the absence of any contrary material, will have to be understood to be pursuant to the grant of a fresh lease under section 39 of the Zamindari Abolition Act read with the provisions of section 101 of the Tenancy Act. Infact, acceptance of the acquisition of the status of bhumiswami by the appellant in the aforesaid manner will render it unnecessary for us to go into the basis of the acquisition of the said status as argued by the learned counsel for the appellant, which, in any case, appears to be contrary to the provision of section 1(2) of the Tenancy Act. The said provision clearly excludes the villages settled under the Zamindari system from the purview of the operation of Part II of the Tenancy Act, which part of the Act, inter alia, also deals with the acquisition of the status of “pucca tenant” and “Bhumiswami” by a tenant. However obliteration of Part II of the Tenancy Act by operation of section 1(2) thereof does not extinguish the different denominations of tenancy including the status of Bhumiswami which can very well be acquired by grant of such status by a fresh lease under sections 101 of the Tenancy Act read with section 39 of the M.B. Zamindari Abolition Act.13. The rights of a bhumiswami are clearly enumerated by Section 165 of the MP Land Revenue Code which encompasses a right to transfer. The bar imposed on the right to transfer does not apply to non-agricultural lands and, hence, would not be relevant to the present case. If the right of transfer has been conferred on the appellant by the provisions of a statute and the bar contemplated does not apply to the appellant, we do not see how a clause or a condition in the original patta granted by the Zamindar in samvat 1978-79 (corresponding to English Calender year 1940-41) can restrict such a right. In any case, there is no specific clause or condition in any of the original pattas prohibiting or even restricting the right of the appellant to transfer any part of the land allotted to it that may be lying vacant. Neither any material has been placed before us to enable us to take the view that under terms of the lease granted under Section 101 of Tenancy Act and Section 39 of Abolition of Zamindari Act any restriction or bar had been imposed on the appellant – Company from making such a transfer.14. In view of the aforesaid conclusions the issue with regard to applicability of the Urban Land Ceiling Act and the Ceiling on Agricultural Holding Act, need not detains us, save and except to hold that the provisions of either of the aforesaid Acts, ex-facie, do not apply to the case of the appellant – Company. We would further like to observe on the view taken by us it is not necessary to go into the question as to whether the decree affirmed by the High Court of Madhya Pradesh in S.A. No.482 of 2002 binds the State or whether the same is in respect of the entire land holding of the appellant – Company or only a part thereof.15. In view of the foregoing discussions and conclusions reached
### Response:
1
### Explanation:
12. At the very outset, it must be made clear that the provisions of the Zamindari Abolition Act, 1951, have been pressed into service for the first time in the present appeal. Neither in the pleadings nor in the arguments made before the High Court on behalf of the State, the facts now asserted and the legal issues now raised had been urged. However, the question raised being with regard to the effect of a statutory enactment we have considered the same. In the absence of any pleading that the procedure for grant of a fresh lease contemplated under section 39 of the Zamindari Abolition Act had not been followed by the appellant by making the requisite application as contemplated by section 101 of the Tenancy Act, no adverse consequence can be attributed to the appellant as contended on behalf of the State. Rather, the status of the appellant as a bhumiswami recorded in the revenue records of the later years, in the absence of any contrary material, will have to be understood to be pursuant to the grant of a fresh lease under section 39 of the Zamindari Abolition Act read with the provisions of section 101 of the Tenancy Act. Infact, acceptance of the acquisition of the status of bhumiswami by the appellant in the aforesaid manner will render it unnecessary for us to go into the basis of the acquisition of the said status as argued by the learned counsel for the appellant, which, in any case, appears to be contrary to the provision of section 1(2) of the Tenancy Act. The said provision clearly excludes the villages settled under the Zamindari system from the purview of the operation of Part II of the Tenancy Act, which part of the Act, inter alia, also deals with the acquisition of the status ofby a tenant. However obliteration of Part II of the Tenancy Act by operation of section 1(2) thereof does not extinguish the different denominations of tenancy including the status of Bhumiswami which can very well be acquired by grant of such status by a fresh lease under sections 101 of the Tenancy Act read with section 39 of the M.B. Zamindari Abolition Act.13. The rights of a bhumiswami are clearly enumerated by Section 165 of the MP Land Revenue Code which encompasses a right to transfer. The bar imposed on the right to transfer does not apply to non-agricultural lands and, hence, would not be relevant to the present case. If the right of transfer has been conferred on the appellant by the provisions of a statute and the bar contemplated does not apply to the appellant, we do not see how a clause or a condition in the original patta granted by the Zamindar in samvat 1978-79 (corresponding to English Calender year 1940-41) can restrict such a right. In any case, there is no specific clause or condition in any of the original pattas prohibiting or even restricting the right of the appellant to transfer any part of the land allotted to it that may be lying vacant. Neither any material has been placed before us to enable us to take the view that under terms of the lease granted under Section 101 of Tenancy Act and Section 39 of Abolition of Zamindari Act any restriction or bar had been imposed on the appellant – Company from making such a transfer.14. In view of the aforesaid conclusions the issue with regard to applicability of the Urban Land Ceiling Act and the Ceiling on Agricultural Holding Act, need not detains us, save and except to hold that the provisions of either of the aforesaid Acts, ex-facie, do not apply to the case of the appellant – Company. We would further like to observe on the view taken by us it is not necessary to go into the question as to whether the decree affirmed by the High Court of Madhya Pradesh in S.A. No.482 of 2002 binds the State or whether the same is in respect of the entire land holding of the appellant – Company or only a part thereof.
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Haridwar Singh Vs. Bagun Sumbrui And Ors | in relaxation of Rule 10(1) of the rules of Executive Business, Government have been pleased to decide that the Forest Department shall authorise orders sanctioning leases of Forest coups or produce of the value of more than Rs. 50, 000/-(rupees fifty thousand) each subject to the following conditions that :(1) Reserve price of the coup has been fixed before auction. (2) Highest bid should be accepted. (3) Highest bid should not be less than the reserve price. (4) Any relaxation to the above conditions may not ordinarily be allowed accept with the prior concurrence of the Finance Department." 10. Before the High Court the contentions of the 6th Respondent were, firstly, that the Rule 10(1) is not a statutory rule and, secondly, that it did not concern lease of forest land. The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has nothing to do with the lease of forest coups and said that there was nothing which prevented the Government from giving the coup on lease by private treaty. The High Court, therefore, held that there was no bar, statutory or otherwise, to the settlement of the coup in favour of respondent No. 6 by private negotiation and as such the settlement in his favour was valid. 11. Counsel for the appellant argued that the High Court went wrong in its conclusion that Rule 10(1) as relaxed, did not apply to the grant of the lease of the coup in question and that it really prohibited a lease of forest land except by public auction. We are not satisfied that the construction contended for is correct. Neither Rule 10(1) nor the rule as relaxed says that forest land can be leased only by public auction. Rule 10(1) in so far as it is relevant to the present case only says that, no department shall, without prior consultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests. The relaxation made to Rule 10(1) as evidenced by the letter from the Deputy Secretary to the Government is to the effect that in the case of lease of forest land of the value of more than Rs. 50, 000/-, if made by public auction, it can only be made subject to the conditions mentioned there. In other words, Rule 10(1) as relaxed does not prohibit the grant of a lease by private treaty. The rule read in the context of its relaxation as mentioned in the letter of the Deputy Secretary would only show that consultation with the Finance Department is not necessary for a lease, if the lease is of land of the value of more than Rs. 50, 000/- and is granted in pursuance of a public auction held in confirmity with the conditions mentioned in the letter of the Deputy Secretary. 12. Now the question is whether the coup in question was settled in favour of the 6th Respondent in accordance with Rule 10(1). It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not. 13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4). 14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612 at 624 : AIR 1952 SC 181 : 1952 Cri LJ 955)). 15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650). 16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power. | 1[ds]It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4)14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612 at 624 : AIR 1952 SC 181 : 1952 Cri LJ 955))15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650)16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power | 1 | 3,663 | 563 | ### Instruction:
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in relaxation of Rule 10(1) of the rules of Executive Business, Government have been pleased to decide that the Forest Department shall authorise orders sanctioning leases of Forest coups or produce of the value of more than Rs. 50, 000/-(rupees fifty thousand) each subject to the following conditions that :(1) Reserve price of the coup has been fixed before auction. (2) Highest bid should be accepted. (3) Highest bid should not be less than the reserve price. (4) Any relaxation to the above conditions may not ordinarily be allowed accept with the prior concurrence of the Finance Department." 10. Before the High Court the contentions of the 6th Respondent were, firstly, that the Rule 10(1) is not a statutory rule and, secondly, that it did not concern lease of forest land. The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has nothing to do with the lease of forest coups and said that there was nothing which prevented the Government from giving the coup on lease by private treaty. The High Court, therefore, held that there was no bar, statutory or otherwise, to the settlement of the coup in favour of respondent No. 6 by private negotiation and as such the settlement in his favour was valid. 11. Counsel for the appellant argued that the High Court went wrong in its conclusion that Rule 10(1) as relaxed, did not apply to the grant of the lease of the coup in question and that it really prohibited a lease of forest land except by public auction. We are not satisfied that the construction contended for is correct. Neither Rule 10(1) nor the rule as relaxed says that forest land can be leased only by public auction. Rule 10(1) in so far as it is relevant to the present case only says that, no department shall, without prior consultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests. The relaxation made to Rule 10(1) as evidenced by the letter from the Deputy Secretary to the Government is to the effect that in the case of lease of forest land of the value of more than Rs. 50, 000/-, if made by public auction, it can only be made subject to the conditions mentioned there. In other words, Rule 10(1) as relaxed does not prohibit the grant of a lease by private treaty. The rule read in the context of its relaxation as mentioned in the letter of the Deputy Secretary would only show that consultation with the Finance Department is not necessary for a lease, if the lease is of land of the value of more than Rs. 50, 000/- and is granted in pursuance of a public auction held in confirmity with the conditions mentioned in the letter of the Deputy Secretary. 12. Now the question is whether the coup in question was settled in favour of the 6th Respondent in accordance with Rule 10(1). It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not. 13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4). 14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612 at 624 : AIR 1952 SC 181 : 1952 Cri LJ 955)). 15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650). 16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power.
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It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4)14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612 at 624 : AIR 1952 SC 181 : 1952 Cri LJ 955))15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650)16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power
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M. L. Abdul Jabhar Sahib Vs. H. V. Venkata Sastri & Sons & Ors | may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of Section 59 relating to the creation of a mortgage.15. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of Section 59 to such a charge. Likewise the Legislature could not have intended that the second part would attract the provisions of Section 59 to a charge created by act of parties. Had this been the intention of the Legislature the second part would have been differently worded.16. If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.17. If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.18. Before Section 100 was amended by Act 20 of 1929 it was well settled that the Section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property and the provisions of Sections 81 and 82 shall, so far as may be, apply to the person having such charge." The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.19. As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge,the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the incumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.20. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgmentdebtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Hiralal Patni v. Kali Nath, 1962-2 SCR 747 at pp. 751-2 = (AIR 1962 SC 199 at pp. 200-201), Bahrein Petroleum Co., Ltd. v. P. J. Pappu, (1966) 1 SCR 461 at pp. 462-3 = (AIR 1966 SC 634 at pp. 635-636), Zamindar of Ettiyapuram v. Chidambaram Chetty, ILR 43 Mad 675 = (AIR 1920 Mad 1019) (FB).21. As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant. | 1[ds]11. The evidence does not show that the registering officer D. W. Kittoo put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness, see Surendra Bahadur v. Behari Singh 1939-2 Mad LJ 762 = (AIR 1939 PC 117 ). Likewise the identifying witnesses Senkaranarayana and Kaki Abdul Aziz put their signatures, on the document to authenticate the fact that they had identified the executant. It isHigh Court accepted this contention following its earlier decisions in Viswanadhan v. M.S. Menon, ILR (1939) Mad 199 = (AIR 1939 Mad 202 ) and Shiva Rao v. Shanmughasundaraswami, ILR (1940) Mad 306 = (AIR 1940 Mad 140 ) and held that the security bond was invalid , as it was attested by one witness only. We are unable to agree with this opinion. Section 100 is in theseimmovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.Nothing in this Section applies to the charge of a trustee on the trust property for expenses property incurred in the execution of his trust, and save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.The first paragraph consists of two parts. The first part concerns the creation of a charge over immovable property. A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as, may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of Section 59 relating to the creation of a mortgage.16. If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.17. If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.18. Before Section 100 was amended by Act 20 of 1929 it was well settled that the Section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property and the provisions of Sections 81 and 82 shall, so far as may be, apply to the person having such charge." The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.17. If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.18. Before Section 100 was amended by Act 20 of 1929 it was well settled that the Section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property and the provisions of Sections 81 and 82 shall, so far as may be, apply to the person having such charge." The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge,the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the incumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.20. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgmentdebtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Hiralal Patni v. Kali Nath,SCR 747 at pp.= (AIR 1962 SC 199 at pp.Bahrein Petroleum Co., Ltd. v. P. J. Pappu, (1966) 1 SCR 461 at pp.= (AIR 1966 SC 634 at pp.Zamindar of Ettiyapuram v. Chidambaram Chetty, ILR 43 Mad 675 = (AIR 1920 Mad 1019) (FB).21.As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant. | 1 | 3,993 | 1,863 | ### Instruction:
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may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of Section 59 relating to the creation of a mortgage.15. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of Section 59 to such a charge. Likewise the Legislature could not have intended that the second part would attract the provisions of Section 59 to a charge created by act of parties. Had this been the intention of the Legislature the second part would have been differently worded.16. If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.17. If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.18. Before Section 100 was amended by Act 20 of 1929 it was well settled that the Section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property and the provisions of Sections 81 and 82 shall, so far as may be, apply to the person having such charge." The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.19. As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge,the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the incumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.20. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgmentdebtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Hiralal Patni v. Kali Nath, 1962-2 SCR 747 at pp. 751-2 = (AIR 1962 SC 199 at pp. 200-201), Bahrein Petroleum Co., Ltd. v. P. J. Pappu, (1966) 1 SCR 461 at pp. 462-3 = (AIR 1966 SC 634 at pp. 635-636), Zamindar of Ettiyapuram v. Chidambaram Chetty, ILR 43 Mad 675 = (AIR 1920 Mad 1019) (FB).21. As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.
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find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.17. If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.18. Before Section 100 was amended by Act 20 of 1929 it was well settled that the Section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property and the provisions of Sections 81 and 82 shall, so far as may be, apply to the person having such charge." The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Bapurao v. Narayan, ILR (1949) Nag 802 at pp. 819-822 = (AIR 1950 Nag l17 at pp. 124-125).It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative.As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge,the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the incumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.20. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgmentdebtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Hiralal Patni v. Kali Nath,SCR 747 at pp.= (AIR 1962 SC 199 at pp.Bahrein Petroleum Co., Ltd. v. P. J. Pappu, (1966) 1 SCR 461 at pp.= (AIR 1966 SC 634 at pp.Zamindar of Ettiyapuram v. Chidambaram Chetty, ILR 43 Mad 675 = (AIR 1920 Mad 1019) (FB).21.As to the 4th question we find that the immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.Section 73 (1), proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents.It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.
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Dr. Preeti Bhatt & Another Vs. Central Bank of India & Another | the judgment of Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] this Court has examined them in Suhas H. Pophale [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . This Court has specifically observed in para 66 thereof that for a moment this Court was not taking any different position from the propositions laid down in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] In fact, what was done was to clarify that the Public Premises Act will apply only in certain circumstances. That being so, this submission of Mr Vikas Singh cannot be accepted.9. Mr Vikas Singh then referred us to a judgment of another Constitution Bench in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.[Kaiser-IHind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ], and particularly paras 40, 42 and 65 thereof. Para 40 of this judgment reads as follows: (SCC pp. 207-08)40. Once the PP Eviction Act is enacted then the Bombay Rent Act would not prevail qua the repugnancy between it and the PP Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31-3-1973 by Maharashtra Act 12 of 1970. The result would be from the date of the coming into force of the PP Eviction Act, the Bombay Rent Act qua the properties of the Government and government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the legislature of the State is repugnant to the provision of law made by Parliament, then the law made by Parliament whether passed before or after the law made by the legislature of the State, would prevail. It also makes it clear that the law made by the legislature of the State, to the extent of repugnancy, would be void.10. As seen from para 40 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] quoted above, the judgment clearly says that the Bombay Rent Act would not prevail qua the repugnancy between it and the Public Premises Eviction Act. That aspect has not been contradicted in Suhas H. Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . It also relies upon the judgment in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] which says that the Public Premises Act as well as the State rent control laws are both referable to entries in the Concurrent List and they operate in their own field. It is only in the area of its own that the State Rent Control Act applies and in its own time-frame. The judgment in Suhas Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16-9- 1958 when the Public Premises Act became applicable. Paras 42 and 65 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. That being so, it is not possible to accept this submission of Mr Vikas Singh.(emphasis added)Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings. | 0[ds]9. We have carefully perused the decision of the Apex Court in the case of Suhas Pophale (supra). In the facts of the said case, the proceedings under the said Act of 1971 were initiated in respect of a flat at Woodhouse Road, Opposite Regal Cinema, Colaba,One Mr.Eric Voller was a tenant of an erstwhile Insurance Company which was the owner of the said premises. On 20th December 1972, the said Voller inducted the appellant before the Apex Court in the said premises on Leave and Licence basis. Subsequently, the appellant was accepted as a tenant by the erstwhile Insurance Company. The management of the erstwhile Insurance company was taken over by the Central Government on 13th May 1971. The said Insurance Company merged with the Oriental Insurance Company Limited. The Competent Authority under the said Act of 1971 passed an order of eviction against Mr.Voller and the appellant before the Apex Court. The said order was confirmed in Appeal by the City Civil Court and in a Writ Petition by this Court. The order of eviction was challenged by the Appellant before the Apex Court.10. In the present case, the tenants father was admittedly a tenant of the said premises before the predecessor of the said Bank, Life Insurance Corporation of India, came into existence. Moreover, the petitioners father was admittedly a tenant of the said premises prior to 16th September 1958. The petitioners father died on 9th September 1997. At that time, the petitioner was staying with him in the said premises. The petitioner became the tenant on her fathers death. In view of what is held in paragraph 64 above, the proceedings under the said Act of 1971 against the tenant are not competent. In view of what is held by the Apex Court in the case of Suhas Pophale (supra) in especially in paragraph 64, the order of eviction under the said Act of 1971 could not have been passed against the tenant who along with her father occupied the premises from the year 1950. When the said Bank became the owner of the said premises, the tenants father was already a tenant of the said premises. The proceedings against the tenant under the said Act of 1971 are not competent in the present case.11. An argument was canvassed by the learned counsel for the petitioner that the said decision in the case of Suhas Pophale (supra) is per incuriam as it lays down the law which is contrary to the law laid down in the case of Ashoka Marketing (supra) by the Constitution Bench. We must note here that the Apex Court in the case of Suhas Pophale (supra) has extensively considered the decision in the case of Ashoka Marketing and has specifically recorded a finding that the view taken in the case of Suhas Pophale (supra) is not in conflict with the decision in the case of Ashoka Marketing. Thus, in terms, the Apex Court in the case of Suhas Pophale (supra) has held that what is decided by the said decision is not in conflict with the decision of the Constitution Bench in the case of Ashoka Marketing (supra). Hence, it is not open for us to hold that the decision in the case of Suhas Pophale (supra) is per incuriam.12. We may make a useful reference to the decision of the Apex Court in the case of Band Box Private Limited (supra). The Apex Court dealt with a specific argument that the decision in the case of Suhas Pophale is erroneous in the light of the earlier decisions of the Apex Court in the cases of Ashoka Marketing and KaiserIHind Private Limited.Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings. | 0 | 5,533 | 1,066 | ### 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 judgment of Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] this Court has examined them in Suhas H. Pophale [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . This Court has specifically observed in para 66 thereof that for a moment this Court was not taking any different position from the propositions laid down in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] In fact, what was done was to clarify that the Public Premises Act will apply only in certain circumstances. That being so, this submission of Mr Vikas Singh cannot be accepted.9. Mr Vikas Singh then referred us to a judgment of another Constitution Bench in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.[Kaiser-IHind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ], and particularly paras 40, 42 and 65 thereof. Para 40 of this judgment reads as follows: (SCC pp. 207-08)40. Once the PP Eviction Act is enacted then the Bombay Rent Act would not prevail qua the repugnancy between it and the PP Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31-3-1973 by Maharashtra Act 12 of 1970. The result would be from the date of the coming into force of the PP Eviction Act, the Bombay Rent Act qua the properties of the Government and government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the legislature of the State is repugnant to the provision of law made by Parliament, then the law made by Parliament whether passed before or after the law made by the legislature of the State, would prevail. It also makes it clear that the law made by the legislature of the State, to the extent of repugnancy, would be void.10. As seen from para 40 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] quoted above, the judgment clearly says that the Bombay Rent Act would not prevail qua the repugnancy between it and the Public Premises Eviction Act. That aspect has not been contradicted in Suhas H. Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] . It also relies upon the judgment in Ashoka Mktg. Ltd. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 ] which says that the Public Premises Act as well as the State rent control laws are both referable to entries in the Concurrent List and they operate in their own field. It is only in the area of its own that the State Rent Control Act applies and in its own time-frame. The judgment in Suhas Pophale case [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 : (2014) 2 SCC (Civ) 685] accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16-9- 1958 when the Public Premises Act became applicable. Paras 42 and 65 of Kaiser-I-Hind case [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182 ] which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. That being so, it is not possible to accept this submission of Mr Vikas Singh.(emphasis added)Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings.
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9. We have carefully perused the decision of the Apex Court in the case of Suhas Pophale (supra). In the facts of the said case, the proceedings under the said Act of 1971 were initiated in respect of a flat at Woodhouse Road, Opposite Regal Cinema, Colaba,One Mr.Eric Voller was a tenant of an erstwhile Insurance Company which was the owner of the said premises. On 20th December 1972, the said Voller inducted the appellant before the Apex Court in the said premises on Leave and Licence basis. Subsequently, the appellant was accepted as a tenant by the erstwhile Insurance Company. The management of the erstwhile Insurance company was taken over by the Central Government on 13th May 1971. The said Insurance Company merged with the Oriental Insurance Company Limited. The Competent Authority under the said Act of 1971 passed an order of eviction against Mr.Voller and the appellant before the Apex Court. The said order was confirmed in Appeal by the City Civil Court and in a Writ Petition by this Court. The order of eviction was challenged by the Appellant before the Apex Court.10. In the present case, the tenants father was admittedly a tenant of the said premises before the predecessor of the said Bank, Life Insurance Corporation of India, came into existence. Moreover, the petitioners father was admittedly a tenant of the said premises prior to 16th September 1958. The petitioners father died on 9th September 1997. At that time, the petitioner was staying with him in the said premises. The petitioner became the tenant on her fathers death. In view of what is held in paragraph 64 above, the proceedings under the said Act of 1971 against the tenant are not competent. In view of what is held by the Apex Court in the case of Suhas Pophale (supra) in especially in paragraph 64, the order of eviction under the said Act of 1971 could not have been passed against the tenant who along with her father occupied the premises from the year 1950. When the said Bank became the owner of the said premises, the tenants father was already a tenant of the said premises. The proceedings against the tenant under the said Act of 1971 are not competent in the present case.11. An argument was canvassed by the learned counsel for the petitioner that the said decision in the case of Suhas Pophale (supra) is per incuriam as it lays down the law which is contrary to the law laid down in the case of Ashoka Marketing (supra) by the Constitution Bench. We must note here that the Apex Court in the case of Suhas Pophale (supra) has extensively considered the decision in the case of Ashoka Marketing and has specifically recorded a finding that the view taken in the case of Suhas Pophale (supra) is not in conflict with the decision in the case of Ashoka Marketing. Thus, in terms, the Apex Court in the case of Suhas Pophale (supra) has held that what is decided by the said decision is not in conflict with the decision of the Constitution Bench in the case of Ashoka Marketing (supra). Hence, it is not open for us to hold that the decision in the case of Suhas Pophale (supra) is per incuriam.12. We may make a useful reference to the decision of the Apex Court in the case of Band Box Private Limited (supra). The Apex Court dealt with a specific argument that the decision in the case of Suhas Pophale is erroneous in the light of the earlier decisions of the Apex Court in the cases of Ashoka Marketing and KaiserIHind Private Limited.Hence, the argument of per incuriam is not available to the Bank. In the decision of the learned Single Judge in the case of Mrs.Rani Sevakram vs. Oriental Insurance Company, he has held that in view of the decision in the case of Ashoka Marketing, the decision in the case of Suhas Pophale is not a binding precedent. In view of the above decision, the view taken by the learned Single Judge is not correct.13. One of the contentions raised by the learned counsel for the Bank was that one one hand in view of the decision in the case of Suhas Pophale (supra) the said premises will continue to be a public premises within the meaning of the said Act of 1971 and on the other hand, the jurisdiction of the other Courts to deal with the proceedings for eviction is ousted by section 15 of the said Act of 1971. His submission based on the provisions of the Maharashtra Rent Control Act, 1999 is that the Bank will be without any remedy for evicting the tenant as the said premises continue to be a public premises within the meaning of the said Act of 1971. The said argument is not relevant at all. The only question which we are examining is whether the order of eviction against the tenant is legal and valid. As the law laid down in the case of Suhas Pophale is squarely applicable to the case, the order of eviction and consequently the order of grant of damages will have to be set aside only on the ground that the order of eviction could not have been passed against the tenant under the provisions of the said Act of 1971, as proceedings under the said Act of 1971 are not competent. As we are setting aside the impugned Judgments, on this ground, it is not necessary to deal with the other two submissions of the tenant.14. We make it clear that no adjudication is made on the question whether the tenancy of the Petitioner has been validly terminated and whether the Petitioner can be evicted. All contentions of the parties on merits are kept open which can be agitated in appropriate proceedings.
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Southern Rajamani Transports Private Limited Vs. Rahim Transport Private Limited & Others | Mathew, J.1. In this appeal filed in pursuance to a certificate under Article 133 (1) (a) of the Constitution, the question for consideration is whether the Division Bench of the High Court of Madras was right in setting aside the order passed by the learned single judge dismissing the petition filed by the first respondent here for issue of a writ of certiorari to quash an order passed by the State Transport Appellate Tribunal granting a stage carriage permit to the appellant on the rout in question.2. The appellant and the first respondent made application for a permit for a stage carriage on the route Dindigul to Cumbam. There were 21 other applicants for the permit. The Regional Transport Authority granted the permit to the first respondent on the basis that the first respondent was better qualified to get the permit than the appellant as it got more marks than the appellant in accordance with G. O. Ms. No. 1298 (Home) dated April 28, 1956 and the Government Order No. 2265 (Home) dated August 9, 1958.3. The appellant filed an appeal against the order before the State Transport Appellate Tribunal came to the conclusion that although the first respondent got more marks than the appellant, since another permit had been granted to the first respondent at same sitting of the State Transport Authority, it will be denial of equal opportunity to the appellant and will not be in the interest of the public if the first respondent were granted another permit. It, therefore, set aside the order of the State Transport Authority and granted the permit to the appellant.4. Aggrieved by the order of the Tribunal, the first respondent filed the writ petition before the High Court and a learned single Judge dismissed the petition. The first respondent filled an appeal before the Division Bench against this order.5. The Division Bench came to the conclusion that the merit of the refusal to grant the permit to the first respondent on the ground that there will be a denial of equality of opportunity to the appellant if it is not granted the permit need not be gone into as the order was liable to be quashed on the ground that the State Transport Appellate Tribunal was acting under "the constraining influence" of the G. Os. referred to above which had been struck down by this Court in B. Rajagopala Naidu v. State Transport Appellate Tribunal,(AIR 1964 SC 1573 ). The Division Bench, therefore held that as the grant of the permit to the appellant was under "the constraining influence" of these two G. Os., a writ of certiorari must issue quashing the order granting the permit to the appellant and directing the Tribunal to proceed in accordance with law.6. Counsel for the appellant submitted that the order of the High Court proceeded on an entire mis-conception. She said that the High Court did not go into the merits of the question whether the refusal of the permit to the first respondent on the ground that it would be a denial of equality of opportunity to the appellant and therefore it would not be in the interest of the public, but quashed the order of the State Transport Appellate Tribunal granting the permit to the appellant for the reason that the Tribunal was acting under the "constraining influence" of the G. Os. above referred. Counsel contended that that was wrong as the appellant alone was in the field since no other applicant had challenged the grant in favour of the appellant and when the High Court refused to go into the validity of he reason for refusing the permit to the first respondent, it was an empty formality to have set aside the permit granted to the appellant and directed the State Transport Appellate Tribunal to consider the matter afresh on the score that it was acting under the "constraining influence" of the G. Os. as there were no other applicants in the field.7. We do not think that there is any substance in this contention. The concluding portion of the order of the High Court is clear that if set aside the entire order including the finding that the first respondent should not be granted permit for the reason that it would be a denial of equality of opportunity to the appellant as the first respondent had already got a permit in the same sitting of the State Transport Authority. We think that the High Court not only set aside the order granting the permit to the appellant but also set aside that part of the order in which the State Transport Appellate Tribunal held that to grant the permit to the first respondent would amount to a denial of equal opportunity to the appellant and would be in the interest of the public and left the entire matter for a fresh decision by the State Transport Appellate Tribunal. We see no reason to interfere with the order of the High Court. | 0[ds]7. We do not think that there is any substance in this contention. The concluding portion of the order of the High Court is clear that if set aside the entire order including the finding that the first respondent should not be granted permit for the reason that it would be a denial of equality of opportunity to the appellant as the first respondent had already got a permit in the same sitting of the State Transport Authority. We think that the High Court not only set aside the order granting the permit to the appellant but also set aside that part of the order in which the State Transport Appellate Tribunal held that to grant the permit to the first respondent would amount to a denial of equal opportunity to the appellant and would be in the interest of the public and left the entire matter for a fresh decision by the State Transport Appellate Tribunal. We see no reason to interfere with the order of the High Court. | 0 | 887 | 179 | ### 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:
Mathew, J.1. In this appeal filed in pursuance to a certificate under Article 133 (1) (a) of the Constitution, the question for consideration is whether the Division Bench of the High Court of Madras was right in setting aside the order passed by the learned single judge dismissing the petition filed by the first respondent here for issue of a writ of certiorari to quash an order passed by the State Transport Appellate Tribunal granting a stage carriage permit to the appellant on the rout in question.2. The appellant and the first respondent made application for a permit for a stage carriage on the route Dindigul to Cumbam. There were 21 other applicants for the permit. The Regional Transport Authority granted the permit to the first respondent on the basis that the first respondent was better qualified to get the permit than the appellant as it got more marks than the appellant in accordance with G. O. Ms. No. 1298 (Home) dated April 28, 1956 and the Government Order No. 2265 (Home) dated August 9, 1958.3. The appellant filed an appeal against the order before the State Transport Appellate Tribunal came to the conclusion that although the first respondent got more marks than the appellant, since another permit had been granted to the first respondent at same sitting of the State Transport Authority, it will be denial of equal opportunity to the appellant and will not be in the interest of the public if the first respondent were granted another permit. It, therefore, set aside the order of the State Transport Authority and granted the permit to the appellant.4. Aggrieved by the order of the Tribunal, the first respondent filed the writ petition before the High Court and a learned single Judge dismissed the petition. The first respondent filled an appeal before the Division Bench against this order.5. The Division Bench came to the conclusion that the merit of the refusal to grant the permit to the first respondent on the ground that there will be a denial of equality of opportunity to the appellant if it is not granted the permit need not be gone into as the order was liable to be quashed on the ground that the State Transport Appellate Tribunal was acting under "the constraining influence" of the G. Os. referred to above which had been struck down by this Court in B. Rajagopala Naidu v. State Transport Appellate Tribunal,(AIR 1964 SC 1573 ). The Division Bench, therefore held that as the grant of the permit to the appellant was under "the constraining influence" of these two G. Os., a writ of certiorari must issue quashing the order granting the permit to the appellant and directing the Tribunal to proceed in accordance with law.6. Counsel for the appellant submitted that the order of the High Court proceeded on an entire mis-conception. She said that the High Court did not go into the merits of the question whether the refusal of the permit to the first respondent on the ground that it would be a denial of equality of opportunity to the appellant and therefore it would not be in the interest of the public, but quashed the order of the State Transport Appellate Tribunal granting the permit to the appellant for the reason that the Tribunal was acting under the "constraining influence" of the G. Os. above referred. Counsel contended that that was wrong as the appellant alone was in the field since no other applicant had challenged the grant in favour of the appellant and when the High Court refused to go into the validity of he reason for refusing the permit to the first respondent, it was an empty formality to have set aside the permit granted to the appellant and directed the State Transport Appellate Tribunal to consider the matter afresh on the score that it was acting under the "constraining influence" of the G. Os. as there were no other applicants in the field.7. We do not think that there is any substance in this contention. The concluding portion of the order of the High Court is clear that if set aside the entire order including the finding that the first respondent should not be granted permit for the reason that it would be a denial of equality of opportunity to the appellant as the first respondent had already got a permit in the same sitting of the State Transport Authority. We think that the High Court not only set aside the order granting the permit to the appellant but also set aside that part of the order in which the State Transport Appellate Tribunal held that to grant the permit to the first respondent would amount to a denial of equal opportunity to the appellant and would be in the interest of the public and left the entire matter for a fresh decision by the State Transport Appellate Tribunal. We see no reason to interfere with the order of the High Court.
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7. We do not think that there is any substance in this contention. The concluding portion of the order of the High Court is clear that if set aside the entire order including the finding that the first respondent should not be granted permit for the reason that it would be a denial of equality of opportunity to the appellant as the first respondent had already got a permit in the same sitting of the State Transport Authority. We think that the High Court not only set aside the order granting the permit to the appellant but also set aside that part of the order in which the State Transport Appellate Tribunal held that to grant the permit to the first respondent would amount to a denial of equal opportunity to the appellant and would be in the interest of the public and left the entire matter for a fresh decision by the State Transport Appellate Tribunal. We see no reason to interfere with the order of the High Court.
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State Of Assam Vs. Ka Brhyien Kurkalang & Ors | the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative power.A similar distinction was made in J. K. Gas Plant Manufacturing Co. Ltd. v. King Emperor([1947] F.C.R. 141, 161-162.) between the period of emergency contemplated by an Act which empowered the Governor-General to promulgate an Ordinance setting up Special Tribunal to try certain specified cases and the period during which such an Ordinance would subsist and have validity. It was held that the life of such an Ordinance would not be limited by the period during which it could be issued unless the Ordinance itself imposed such a limitation or other amending or repealing legislation did so. Therefore, the Special Tribunal constituted under such an Ordinance did not cease to exist by reason of the expiration on April 1, 1946 of the period specified in S. 3 of the Act. In Rain Kirpal v. Bihar([1970] 3 S.C.R. 233.), this Court had the occasion of considering the provisions of the Fifth Schedule to the Constitution, and in particular its paragraph 5(2) which empowers the Governor to make regulations for the peace and good government of any area in a State which is for the time being a scheduled area and which power under sub-paragraph (3) includes the power to repeal or amend, while making such a regulation, any Act of Parliament or of a State Legislature or any existing law which is for the time being applicable to the area in question. Explaining the content and the scope of that power, Ray, J., speaking for the Court observed at page 244 of the report that the power contained in paragraph 5(2) of that Schedule embraced the widest power to legislate for the peace and good government for the area in question which comprised of not only making of laws but also of selecting and applying laws, and that the power to apply laws is inherent when there is a power to repeal or amend any Act or any existing law applicable to the area in question.The language of paragraph 19 (i) (b) is identical with that of paragraph 5(2) of the Fifth Schedule, and therefore, must bear the same construction given to it in Ram Kirpais case([1970] 3 S.C.R. 233.). There is, therefore, no difficulty in holding that the questioned regulation was a competent legislation made in pursuance of the power conferred by paragraph 19(1) (b), and that under that power the Governor could not only make regulations in the form of substantive but also could apply existing statutes. 8. The preamble of the Regulation recites that it was promulgated because it was found expedient to bring certain enactments into force in certain areas of the United Khasi-Jaintia Hills District. Sec. 1 (1) recites the title of the Regulation. Sub-sec. (2) of that section provides that the Regulation shall come into force at once. The laws made applicable are set out in the schedule appended lo the Regulation., one of which is the Eastern Bengal and Assam Excise Act, 1910. Sec. 2(2) then empowers the Governor to direct, by notification in the Official Gazette, that any of those laws shall extend to and have effect in so much area of the United Khasi-Jaintia Hills District or part thereof and to that purpose different areas and different dates may be specified for different laws. 9. The effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extended. The Regulation came into force at once and continued to remain in force even after the District Council was set up; so also the power there under conferred on the Governor to extend them either to the District as a whole or to any part or parts thereof.Prima facie, the Regulation was a conditional legislation, the legislative authority, namely, the Governor having by the Regulation itself selected the laws which he wanted to be applied and having. left only the time when and the area in which they or any one of them should be brought into force. Assuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operate. 10. The High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority. | 1[ds]Since the District Council was constituted in June 1952 (see T. Cajee v. U. Jormanik Siem) ([1961] 1 S.C.R. 750.), and it was passed in pursuance of the power conferred by. (b) of cl. (1) of paragraph 19, no question as to the competence of the Governor can arise as the Constitution itself confers such a power on him. As aforesaid, there are no limitations on that power except in regard to the Presidents assent. Consequently, the power is as plenary in its content as the power of a legislature. It is true that the power is to be exercised until a District Council is so constituted for an autonomous district. But that only places a limit to the period until which it is exercisable, and not any limitation upon the extent of the power or the period during which a regulation made by him would be in force once it is validly made. Further, there is no provision either in paragraph 19 or paragraph 12 suggesting that such a regulation is to remain in force and have effect only until a District Council is constituted. In the absence of any such limitation, there i s no warrant for saying that a regulation ceases to have effect once the District Council is constituted. The words such a District Council is so constituted have reference to the period during which the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative powerThe effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extendedAssuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operateThe High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority. | 1 | 3,323 | 649 | ### 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:
the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative power.A similar distinction was made in J. K. Gas Plant Manufacturing Co. Ltd. v. King Emperor([1947] F.C.R. 141, 161-162.) between the period of emergency contemplated by an Act which empowered the Governor-General to promulgate an Ordinance setting up Special Tribunal to try certain specified cases and the period during which such an Ordinance would subsist and have validity. It was held that the life of such an Ordinance would not be limited by the period during which it could be issued unless the Ordinance itself imposed such a limitation or other amending or repealing legislation did so. Therefore, the Special Tribunal constituted under such an Ordinance did not cease to exist by reason of the expiration on April 1, 1946 of the period specified in S. 3 of the Act. In Rain Kirpal v. Bihar([1970] 3 S.C.R. 233.), this Court had the occasion of considering the provisions of the Fifth Schedule to the Constitution, and in particular its paragraph 5(2) which empowers the Governor to make regulations for the peace and good government of any area in a State which is for the time being a scheduled area and which power under sub-paragraph (3) includes the power to repeal or amend, while making such a regulation, any Act of Parliament or of a State Legislature or any existing law which is for the time being applicable to the area in question. Explaining the content and the scope of that power, Ray, J., speaking for the Court observed at page 244 of the report that the power contained in paragraph 5(2) of that Schedule embraced the widest power to legislate for the peace and good government for the area in question which comprised of not only making of laws but also of selecting and applying laws, and that the power to apply laws is inherent when there is a power to repeal or amend any Act or any existing law applicable to the area in question.The language of paragraph 19 (i) (b) is identical with that of paragraph 5(2) of the Fifth Schedule, and therefore, must bear the same construction given to it in Ram Kirpais case([1970] 3 S.C.R. 233.). There is, therefore, no difficulty in holding that the questioned regulation was a competent legislation made in pursuance of the power conferred by paragraph 19(1) (b), and that under that power the Governor could not only make regulations in the form of substantive but also could apply existing statutes. 8. The preamble of the Regulation recites that it was promulgated because it was found expedient to bring certain enactments into force in certain areas of the United Khasi-Jaintia Hills District. Sec. 1 (1) recites the title of the Regulation. Sub-sec. (2) of that section provides that the Regulation shall come into force at once. The laws made applicable are set out in the schedule appended lo the Regulation., one of which is the Eastern Bengal and Assam Excise Act, 1910. Sec. 2(2) then empowers the Governor to direct, by notification in the Official Gazette, that any of those laws shall extend to and have effect in so much area of the United Khasi-Jaintia Hills District or part thereof and to that purpose different areas and different dates may be specified for different laws. 9. The effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extended. The Regulation came into force at once and continued to remain in force even after the District Council was set up; so also the power there under conferred on the Governor to extend them either to the District as a whole or to any part or parts thereof.Prima facie, the Regulation was a conditional legislation, the legislative authority, namely, the Governor having by the Regulation itself selected the laws which he wanted to be applied and having. left only the time when and the area in which they or any one of them should be brought into force. Assuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operate. 10. The High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority.
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### Explanation:
Since the District Council was constituted in June 1952 (see T. Cajee v. U. Jormanik Siem) ([1961] 1 S.C.R. 750.), and it was passed in pursuance of the power conferred by. (b) of cl. (1) of paragraph 19, no question as to the competence of the Governor can arise as the Constitution itself confers such a power on him. As aforesaid, there are no limitations on that power except in regard to the Presidents assent. Consequently, the power is as plenary in its content as the power of a legislature. It is true that the power is to be exercised until a District Council is so constituted for an autonomous district. But that only places a limit to the period until which it is exercisable, and not any limitation upon the extent of the power or the period during which a regulation made by him would be in force once it is validly made. Further, there is no provision either in paragraph 19 or paragraph 12 suggesting that such a regulation is to remain in force and have effect only until a District Council is constituted. In the absence of any such limitation, there i s no warrant for saying that a regulation ceases to have effect once the District Council is constituted. The words such a District Council is so constituted have reference to the period during which the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative powerThe effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extendedAssuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operateThe High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority.
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Mohinder Kumar Mehra Vs. Roop Rani Mehra & Others | of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.”15. Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.16. Now, we come to the one of the main reason given by the trial court in rejecting the application that the claim was barred by limitation. The Nizamuddin property, which property was sought to be added in the suit for partition was a property, which was sold by respondent No.1 in the year 2000, in which the plaintiff was also one of the witnesses. The trial court took the view that the suit was simplicitor for recovery of money for which limitation is only three years from the date of sale and not twelve years as claimed by the applicant. With regard to the limitation, the plaintiff-appellant relies on Article 110 of the Limitation Act, which is to the following effect:-Article No.Description of SuitPeriod of LimitationTime fromWhich period begins to run110By a person excluded from a joint family property to enforce a right to share therein.Twelve YearsWhen the exclusion becomes known to the plaintiff17. Present is not a case of simply recovery of money. Plaintiff’s claim is to enforce a right to share in 18 the Nizamuddin property, which was sold in the year 2000 and according to plaintiff, the limitation is twelve years as per Article 110. The High Court has also noted the order of Additional District Judge holding that claim is barred by time. The High Court refrained from expressing any final opinion on the question of limitation but observed that the view taken by the Additional District Judge is correct. It is relevant to refer to Para 28 of the judgment, which is to the following effect:-“The learned Additional District Judge in the impugned order has also accepted the contention of the counsel for the respondents/defendants of the relief sought to be added by way of amendment being barred by time and Articles 106 and 110 of the Schedule to the Limitation Act being not applicable. The counsel for the petitioner/plaintiff has been unable to show any precedent that a claim for a definite share in the sale proceeds of, a property would be governed by Articles 106 and Article 110 supra. However, the same being in the nature of entering into the merits of the amendment, I refrain from dealing with the said aspect, though the view taken by the learned Additional District Judge appears to be reasonable and plausible.”18. In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.19. While considering the prayer of amendment of the pleadings by a party, this Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragrpahs 20, 21 and 22, which is quoted as below:-“20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.22. In Jai Jai Ram Manohar Lal v. National Building Material Supply3, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations.”20. Although, learned counsel for the parties in their submissions have raised various submissions on the merits of the claim of the parties, which need no consideration by us since the only issue which has to be considered is as to whether the amendment application filed by the plaintiff deserves to be allowed or not. We make it clear that we have neither entered into merits of the claim nor have expressed any opinion on the merits of the claim of either party and it is for the trial court to consider the issues on merits while deciding the suit. | 1[ds]9. Although Order VI Rule 17 permits amendment in the pleadingsany stage of thebut a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving thejurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal withof the Suit and Examination ofIssues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals withof the Suit at the firstwhen it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.Coming to the facts of the present case, it is clear from the record that issues were framed on 17.05.2010 and case was fixed for recording of evidence of plaintiff on 10.08.2010. Plaintiff did not produce the evidence and took adjournment and in the meantime filed an application under Order VI Rule 16 or 17 on 17.01.2011. Thereafter the Court on 26.07.2011 has granted fourThus technically trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff. The parties led evidence after the amendment application was filed. In this context, it is necessary to notice the order of the High Court dated 14.02.2014, which records that evidence of both the parties have been concluded. Most important fact to be noticed in the order is that the Court recorded the statement ofcounsel that parties have led evidence in view of the amendment sought in the plaint.The Proviso to Order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that thecase is that parties has led evidence even on the amended pleadings andcases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him.Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.Present is not a case of simply recovery of money.claim is to enforce a right to share in 18 the Nizamuddin property, which was sold in the year 2000 and according to plaintiff, the limitation is twelve years as per Article 110. The High Court has also noted the order of Additional District Judge holding that claim is barred by time. The High Court refrained from expressing any final opinion on the question of limitation but observed that the view taken by the Additional District Judge is correct.In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.Although, learned counsel for the parties in their submissions have raised various submissions on the merits of the claim of the parties, which need no consideration by us since the only issue which has to be considered is as to whether the amendment application filed by the plaintiff deserves to be allowed or not. We make it clear that we have neither entered into merits of the claim nor have expressed any opinion on the merits of the claim of either party and it is for the trial court to consider the issues on merits while deciding the suit. | 1 | 4,485 | 946 | ### Instruction:
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of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.”15. Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.16. Now, we come to the one of the main reason given by the trial court in rejecting the application that the claim was barred by limitation. The Nizamuddin property, which property was sought to be added in the suit for partition was a property, which was sold by respondent No.1 in the year 2000, in which the plaintiff was also one of the witnesses. The trial court took the view that the suit was simplicitor for recovery of money for which limitation is only three years from the date of sale and not twelve years as claimed by the applicant. With regard to the limitation, the plaintiff-appellant relies on Article 110 of the Limitation Act, which is to the following effect:-Article No.Description of SuitPeriod of LimitationTime fromWhich period begins to run110By a person excluded from a joint family property to enforce a right to share therein.Twelve YearsWhen the exclusion becomes known to the plaintiff17. Present is not a case of simply recovery of money. Plaintiff’s claim is to enforce a right to share in 18 the Nizamuddin property, which was sold in the year 2000 and according to plaintiff, the limitation is twelve years as per Article 110. The High Court has also noted the order of Additional District Judge holding that claim is barred by time. The High Court refrained from expressing any final opinion on the question of limitation but observed that the view taken by the Additional District Judge is correct. It is relevant to refer to Para 28 of the judgment, which is to the following effect:-“The learned Additional District Judge in the impugned order has also accepted the contention of the counsel for the respondents/defendants of the relief sought to be added by way of amendment being barred by time and Articles 106 and 110 of the Schedule to the Limitation Act being not applicable. The counsel for the petitioner/plaintiff has been unable to show any precedent that a claim for a definite share in the sale proceeds of, a property would be governed by Articles 106 and Article 110 supra. However, the same being in the nature of entering into the merits of the amendment, I refrain from dealing with the said aspect, though the view taken by the learned Additional District Judge appears to be reasonable and plausible.”18. In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.19. While considering the prayer of amendment of the pleadings by a party, this Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragrpahs 20, 21 and 22, which is quoted as below:-“20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.22. In Jai Jai Ram Manohar Lal v. National Building Material Supply3, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations.”20. Although, learned counsel for the parties in their submissions have raised various submissions on the merits of the claim of the parties, which need no consideration by us since the only issue which has to be considered is as to whether the amendment application filed by the plaintiff deserves to be allowed or not. We make it clear that we have neither entered into merits of the claim nor have expressed any opinion on the merits of the claim of either party and it is for the trial court to consider the issues on merits while deciding the suit.
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9. Although Order VI Rule 17 permits amendment in the pleadingsany stage of thebut a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving thejurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal withof the Suit and Examination ofIssues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals withof the Suit at the firstwhen it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.Coming to the facts of the present case, it is clear from the record that issues were framed on 17.05.2010 and case was fixed for recording of evidence of plaintiff on 10.08.2010. Plaintiff did not produce the evidence and took adjournment and in the meantime filed an application under Order VI Rule 16 or 17 on 17.01.2011. Thereafter the Court on 26.07.2011 has granted fourThus technically trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff. The parties led evidence after the amendment application was filed. In this context, it is necessary to notice the order of the High Court dated 14.02.2014, which records that evidence of both the parties have been concluded. Most important fact to be noticed in the order is that the Court recorded the statement ofcounsel that parties have led evidence in view of the amendment sought in the plaint.The Proviso to Order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that thecase is that parties has led evidence even on the amended pleadings andcases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him.Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso.Present is not a case of simply recovery of money.claim is to enforce a right to share in 18 the Nizamuddin property, which was sold in the year 2000 and according to plaintiff, the limitation is twelve years as per Article 110. The High Court has also noted the order of Additional District Judge holding that claim is barred by time. The High Court refrained from expressing any final opinion on the question of limitation but observed that the view taken by the Additional District Judge is correct.In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.Although, learned counsel for the parties in their submissions have raised various submissions on the merits of the claim of the parties, which need no consideration by us since the only issue which has to be considered is as to whether the amendment application filed by the plaintiff deserves to be allowed or not. We make it clear that we have neither entered into merits of the claim nor have expressed any opinion on the merits of the claim of either party and it is for the trial court to consider the issues on merits while deciding the suit.
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UHL POWER COMPANY LTD Vs. STATE OF HIMACHAL PRADESH | HIMA KOHLI, J. 1. Both the present appeals arise from a common judgment dated 24th May, 2011, passed by the High Court of Himachal Pradesh partly allowing Arbitration Appeal No. 2 of 2009 filed by UHL Power Company Limited (For short UHL) under Section 37 of the Arbitration and Conciliation Act, 1996 (For short the Arbitration Act) . UHL has filed Civil Appeal No. 10342 of 2011 and the State of Himachal Pradesh (For short the State) has filed Civil Appeal No. 10342 of 2011, as both the parties are aggrieved by the impugned judgment. 2. Though several grounds have been taken by UHL in its appeal to assail the impugned judgment, Mr. Jaideep Gupta, learned senior counsel for UHL has confined his grievance to the disallowance of the pre-claim interest i.e., interest from the date when expenses were incurred by UHL, till the date of lodging the claim. It may be noted that in terms of the award dated 05th June, 2005, the learned Sole Arbitrator had awarded a sum of Rs.26,08,89,107.35p. (Rupees Twenty six crores eight lakhs eighty nine thousand one hundred and seven and thirty five paise) in favour of UHL towards expenses claimed along with pre-claim interest capitalized annually, on the expenses so incurred. Further, compound interest was awarded in favour of UHL @ 9% per annum till the date of claim and in the event the awarded amount is not realized within a period of six months from the date of making the award, future interest was awarded @ 18% per annum on the principal claim with interest. 3. Dissatisfied with the award, when the State of H.P. filed a petition under Section 34 of the Arbitration Act, vide judgment dated 16th December, 2008, the learned Single Judge disallowed the entire claim of UHL. The said judgment was challenged by UHL in a petition filed under Section 37 of the Arbitration Act that has been decided by the impugned judgment whereunder, the Division Bench of the High Court has awarded a sum of Rs. 9,10,26,558.74 (Rupees Nine crores ten lakhs twenty six thousand five hundred fifty eight and seventy four paise) in favour of UHL, being the actual principal amount along with simple interest @ 6% per annum from the date of filing of the claim, till the date of realization of the awarded amount. For declining payment of compound interest awarded by the learned Sole Arbitrator to UHL, the Division Bench relied on the decision of this Court in State of Haryana v. S.L. Arora and Co. (2010) 3 SCC 690 , wherein it was held that compound interest can be awarded only if there is a specific contract, or authority under a Statute, for compounding of interest and that there is no general discretion vested in courts or tribunals to award compound interest. It was further held that in the absence of any provision for interest upon interest in the contract, the Arbitral Tribunals do not have the power to award interest upon interest, or compound interest, either for the pre-award period or for the post-award period. 4. By now, the aforesaid aspect has been set at rest by a three-Judge Bench of this Court in Hyder Consulting (UK) Ltd. V. Governor, State of Orissa through Chief Engineer (2015) 2 SCC 189 , that has overruled the verdict in the case of S.L. Arora (supra). The majority view is that post-award interest can be granted by an Arbitrator on the interest amount awarded. Writing for the majority, Justice Bobde (as His Lordship then was) has held thus: 21. In the result, I am of the view that S.L. Arora case [State of Haryana v. S.L. Arora and Co. (2010) 3 SCC] is wrongly decided in that it holds that a sum directed to be paid by an Arbitral Tribunal and the reference to the award on the substantive claim does not refer to interest pendente lite awarded on the sum directed to be paid upon award and that in the absence of any provision of interest upon interest in the contract, the Arbitral Tribunal does not have the power to award interest upon interest, or compound interest either for the pre-award period or for the post-award period. Parliament has the undoubted power to legislate on the subject and provide that the Arbitral Tribunal may award interest on the sum directed to be paid by the award, meaning a sum inclusive of principal sum adjudged and the interest, and this has been done by Parliament in plain language. [emphasis supplied] 5. While giving a concurring opinion in the aforesaid case, Justice Sapre made the following pertinent observations: 31. Coming now to the post-award interest. Section 31(7)(b) of the Act employs the words, A sum directed to be paid by an arbitral award ... . Clause (b) uses the words arbitral award and not the Arbitral Tribunal. The arbitral award. as held above, is made in respect of a sum which includes the interest. It is, therefore, obvious that what carries under Section 31 (7)(b) of the Act is the sum directed to be paid by an arbitral award and not any other amount much less by or under the name interest. In such situation. it cannot be said that what is being granted under Section 31(7)(b) of the Act is interest on interest. Interest under clause (b) is granted on the sum directed to be paid by an arbitral award wherein the sum is nothing more than what is arrived at under clause (a). [emphasis supplied] | 1[ds]4. By now, the aforesaid aspect has been set at rest by a three-Judge Bench of this Court in Hyder Consulting (UK) Ltd. V. Governor, State of Orissa through Chief Engineer (2015) 2 SCC 189 , that has overruled the verdict in the case of S.L. Arora (supra). The majority view is that post-award interest can be granted by an Arbitrator on the interest amount awarded. Writing for the majority, Justice Bobde (as His Lordship then was) has held thus:21. In the result, I am of the view that S.L. Arora case [State of Haryana v. S.L. Arora and Co. (2010) 3 SCC] is wrongly decided in that it holds that a sum directed to be paid by an Arbitral Tribunal and the reference to the award on the substantive claim does not refer to interest pendente lite awarded on the sum directed to be paid upon award and that in the absence of any provision of interest upon interest in the contract, the Arbitral Tribunal does not have the power to award interest upon interest, or compound interest either for the pre-award period or for the post-award period. Parliament has the undoubted power to legislate on the subject and provide that the Arbitral Tribunal may award interest on the sum directed to be paid by the award, meaning a sum inclusive of principal sum adjudged and the interest, and this has been done by Parliament in plain language.5. While giving a concurring opinion in the aforesaid case, Justice Sapre made the following pertinent observations:31. Coming now to the post-award interest. Section 31(7)(b) of the Act employs the words, A sum directed to be paid by an arbitral award ... . Clause (b) uses the words arbitral award and not the Arbitral Tribunal. The arbitral award. as held above, is made in respect of a sum which includes the interest. It is, therefore, obvious that what carries under Section 31 (7)(b) of the Act is the sum directed to be paid by an arbitral award and not any other amount much less by or under the name interest. In such situation. it cannot be said that what is being granted under Section 31(7)(b) of the Act isinterest on interest. Interest under clause (b) is granted on thesum directed to be paid by an arbitral award wherein the sum is nothing more than what is arrived at under clause (a).8. Coming first to the argument urged on behalf of the State that the MoU dated 10th February, 1992 did not merge with the Implementation Agreement dated 22nd August, 1997, a perusal of the recitals and the clauses contained in the Implementation Agreement dated 22nd August, 1997, belies such a submission.10. The very fact that the State admits to having executed the MoU with UHL on 10th February, 1992 and the said MoU has been mentioned as Appendix A in the second recital of the Implementation Agreement, as reproduced above, itself demolishes the plea taken by the State that the Arbitral Tribunal and the Appellate Court have erred in returning a finding that the MoU dated 10th February, 1992 did not merge into the Implementation Agreement dated 22nd August, 1997. The aforesaid view is reinforced on a reading of the definition of the word Agreement as used in Clause 2.2 of the Implementation Agreement which clearly states that the word Agreement wherever used in the Implementation Agreement, shall include all its appendices and annexures. The MoU having been described by the parties as Appendix A to the Implementation Agreement, would have to be treated as having merged with the Implementation Agreement for all effects and purposes. In the light of the aforesaid recitals and clauses of the Implementation Agreement, this Court endorses the findings returned in para 47 of the impugned judgment, wherein it has been held that a plain reading of the second recital read with Clause 2.2 of the Implementation Agreement suggested that the MoU has merged with the Implementation Agreement and, therefore, the disputes that were referable to arbitration under the Implementation Agreement in terms of Clause 20, were to include disputes arising under the MoU, even though the latter document did contain a separate arbitration clause.This Court is in agreement with the Appellate Court that Clause 1 of the Implementation Agreement could not have been read in isolation and when read in conjunction with the second recital and Clause 2.2 of the Implementation Agreement, it is apparent that the MoU was made a part and parcel of the Implementation Agreement. In view of the above, the view taken by the learned Sole Arbitrator that the MoU forms a part of the Implementation Agreement, as has been upheld by the Appellate Court, does not deserve any interference. All the points of dispute between the parties regarding performance of the contractual obligations including claims for damages and expenses incurred by UHL either arising from the MoU dated 10th February, 1992, or under the Implementation Agreement dated 22nd August, 1997, were referable to arbitration in accordance with Clause 20 forming a part of the Implementation Agreement.13. A plain reading of Clauses 4.1(a) and (b) leaves no manner of doubt that UHL was required to commence construction of the project within a period of one year from the effective date only after obtaining a techno-economic clearance from CEA and an environmental clearance from the Government of India, Ministry of Environment and Forests. However, it was agreed by the parties that since obtaining of the relevant clearances referred to above and under Clause 16.8 of the Agreement whereunder the State was required to discharge certain obligations, were not entirely in the hands of UHL, in the event of any delay beyond a period of three months reckoned from the effective date, the stipulated period of one year contemplated in the Implementation Agreement could be extended, but not beyond the additional period of twelve months. In the light of the aforesaid clauses of the Implementation Agreement, the submission made by learned Additional Advocate General for the State that, under all circumstances, the Implementation Agreement had to be executed within a period of one year and since the provision for extension beyond one year was applicable only to the conditions contemplated in Clause 4.1(a) and (b) and not to those stipulated in Clause 4.1(c) to (g), is found to be unmerited and is turned down. When the parties to the Implementation Agreement were ad idem that the period of one year available to UHL to commence the construction activity was to be reckoned after the major requirements prescribed in Clause 4.1 could be obtained, then any argument sought to be advanced to segregate the obligations under different sub-heads of Clause 4.1 only to lay the blame at the door of UHL when the requisite clearances were to be obtained by the State Government from the Central Government and Centralized Authorities, is devoid of merits, besides being completely unreasonable and illogical.14. This Court also accepts as correct, the view expressed by the Appellate Court that the learned Single Judge committed a gross error in re-appreciating the findings returned by the Arbitral Tribunal and taking an entirely different view in respect of the interpretation of the relevant clauses of the Implementation Agreement governing the parties inasmuch as it was not open to the said Court to do so in proceedings under Section 34 of the Arbitration Act, by virtually acting as a Court of Appeal.15. As it is, the jurisdiction conferred on Courts under Section 34 of the Arbitration Act is fairly narrow, when it comes to the scope of an appeal under Section 37 of the Arbitration Act, the jurisdiction of an Appellate Court in examining an order, setting aside or refusing to set aside an award, is all the more circumscribed. In MMTC Limited v. Vedanta Limited (2019) 4 SCC 163 , the reasons for vesting such a limited jurisdiction on the High Court in exercise of powers under Section 34 of the Arbitration Act has been explained in the following words:11. As far as Section 34 is concerned, the position is well- settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b) (ii) i.e. if the award is against the public policy of India. As per the legal position clarified through decisions of this Court prior to the amendments to the 1996 Act in 2015, a violation of Indian public policy, in turn, includes a violation of the fundamental policy of Indian law, a violation of the interest of India, conflict with justice or morality, and the existence of patent illegality in the arbitral award. Additionally, the concept of the fundamental policy of Indian law would cover compliance with statutes and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice, and Wednesbury [Associated Provincial Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] reasonableness. Furthermore, patent illegality itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract.17. It has also been held time and again by this Court that if there are two plausible interpretations of the terms and conditions of the contract, then no fault can be found, if the learned Arbitrator proceeds to accept one interpretation as against the other. In Dyna Technologies (P) Ltd. V. Crompton Greaves Ltd. (2019) 20 SCC 1 , the limitations on the Court while exercising powers under Section 34 of the Arbitration Act has been highlighted thus:24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.19. In Dyna Technologies (P) Ltd. (supra), the view taken above has been reiterated in the following words:25. Moreover, umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.20. An identical line of reasoning has been adopted in South East Asia Marine Engg. & Constructions Ltd.[SEAMAC Limited] V. Oil India Ltd. (2020) 5 SCC 164 and it has been held as follows:12. It is a settled position that a court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the courts. Recently, this Court in Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd. [Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1 : 2019 SCC OnLine SC 1656] laid down the scope of such interference. This Court observed as follows : (SCC pp. 11-12, para 24)24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning. This Court in Dyna Technologies [Dyna Technologies (P) Ltd. V. Crompton Greaves Ltd., (2019) 20 SCC 1 : 2019 SCC OnLine SC 1656] observed as under : (SCC p.12, para 25)25. Moreover, umpteen number of judgments of this Court have categorically held that the Court should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.21. In the instant case, we are of the view that the interpretation of the relevant clauses of the Implementation Agreement, as arrived at by the learned Sole Arbitrator, are both, possible and plausible. Merely because another view could have been taken, can hardly be a ground for the learned Single Judge to have interfered with the arbitral award. In the given facts and circumstances of the case, the Appellate Court has rightly held that the learned Single Judge exceeded his jurisdiction in interfering with the award by questioning the interpretation given to the relevant clauses of the Implementation Agreement, as the reasons given are backed by logic.22. We, therefore, uphold the decision of the Appellate Court that has restored the findings returned in the arbitral award dated 05th June, 2005 to the effect that the State of Himachal Pradesh had proceeded to terminate the Implementation Agreement before expiry of the prescribed period which could have been extended up to 24 months, reckoned from the effective date. In the instant case, the State of H.P. had terminated the Implementation Agreement five months prior to the stipulated period by adopting a distorted interpretation of Clause 4 of the Implementation Agreement, which was impermissible. | 1 | 1,057 | 2,732 | ### Instruction:
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HIMA KOHLI, J. 1. Both the present appeals arise from a common judgment dated 24th May, 2011, passed by the High Court of Himachal Pradesh partly allowing Arbitration Appeal No. 2 of 2009 filed by UHL Power Company Limited (For short UHL) under Section 37 of the Arbitration and Conciliation Act, 1996 (For short the Arbitration Act) . UHL has filed Civil Appeal No. 10342 of 2011 and the State of Himachal Pradesh (For short the State) has filed Civil Appeal No. 10342 of 2011, as both the parties are aggrieved by the impugned judgment. 2. Though several grounds have been taken by UHL in its appeal to assail the impugned judgment, Mr. Jaideep Gupta, learned senior counsel for UHL has confined his grievance to the disallowance of the pre-claim interest i.e., interest from the date when expenses were incurred by UHL, till the date of lodging the claim. It may be noted that in terms of the award dated 05th June, 2005, the learned Sole Arbitrator had awarded a sum of Rs.26,08,89,107.35p. (Rupees Twenty six crores eight lakhs eighty nine thousand one hundred and seven and thirty five paise) in favour of UHL towards expenses claimed along with pre-claim interest capitalized annually, on the expenses so incurred. Further, compound interest was awarded in favour of UHL @ 9% per annum till the date of claim and in the event the awarded amount is not realized within a period of six months from the date of making the award, future interest was awarded @ 18% per annum on the principal claim with interest. 3. Dissatisfied with the award, when the State of H.P. filed a petition under Section 34 of the Arbitration Act, vide judgment dated 16th December, 2008, the learned Single Judge disallowed the entire claim of UHL. The said judgment was challenged by UHL in a petition filed under Section 37 of the Arbitration Act that has been decided by the impugned judgment whereunder, the Division Bench of the High Court has awarded a sum of Rs. 9,10,26,558.74 (Rupees Nine crores ten lakhs twenty six thousand five hundred fifty eight and seventy four paise) in favour of UHL, being the actual principal amount along with simple interest @ 6% per annum from the date of filing of the claim, till the date of realization of the awarded amount. For declining payment of compound interest awarded by the learned Sole Arbitrator to UHL, the Division Bench relied on the decision of this Court in State of Haryana v. S.L. Arora and Co. (2010) 3 SCC 690 , wherein it was held that compound interest can be awarded only if there is a specific contract, or authority under a Statute, for compounding of interest and that there is no general discretion vested in courts or tribunals to award compound interest. It was further held that in the absence of any provision for interest upon interest in the contract, the Arbitral Tribunals do not have the power to award interest upon interest, or compound interest, either for the pre-award period or for the post-award period. 4. By now, the aforesaid aspect has been set at rest by a three-Judge Bench of this Court in Hyder Consulting (UK) Ltd. V. Governor, State of Orissa through Chief Engineer (2015) 2 SCC 189 , that has overruled the verdict in the case of S.L. Arora (supra). The majority view is that post-award interest can be granted by an Arbitrator on the interest amount awarded. Writing for the majority, Justice Bobde (as His Lordship then was) has held thus: 21. In the result, I am of the view that S.L. Arora case [State of Haryana v. S.L. Arora and Co. (2010) 3 SCC] is wrongly decided in that it holds that a sum directed to be paid by an Arbitral Tribunal and the reference to the award on the substantive claim does not refer to interest pendente lite awarded on the sum directed to be paid upon award and that in the absence of any provision of interest upon interest in the contract, the Arbitral Tribunal does not have the power to award interest upon interest, or compound interest either for the pre-award period or for the post-award period. Parliament has the undoubted power to legislate on the subject and provide that the Arbitral Tribunal may award interest on the sum directed to be paid by the award, meaning a sum inclusive of principal sum adjudged and the interest, and this has been done by Parliament in plain language. [emphasis supplied] 5. While giving a concurring opinion in the aforesaid case, Justice Sapre made the following pertinent observations: 31. Coming now to the post-award interest. Section 31(7)(b) of the Act employs the words, A sum directed to be paid by an arbitral award ... . Clause (b) uses the words arbitral award and not the Arbitral Tribunal. The arbitral award. as held above, is made in respect of a sum which includes the interest. It is, therefore, obvious that what carries under Section 31 (7)(b) of the Act is the sum directed to be paid by an arbitral award and not any other amount much less by or under the name interest. In such situation. it cannot be said that what is being granted under Section 31(7)(b) of the Act is interest on interest. Interest under clause (b) is granted on the sum directed to be paid by an arbitral award wherein the sum is nothing more than what is arrived at under clause (a). [emphasis supplied]
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law would cover compliance with statutes and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice, and Wednesbury [Associated Provincial Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] reasonableness. Furthermore, patent illegality itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract.17. It has also been held time and again by this Court that if there are two plausible interpretations of the terms and conditions of the contract, then no fault can be found, if the learned Arbitrator proceeds to accept one interpretation as against the other. In Dyna Technologies (P) Ltd. V. Crompton Greaves Ltd. (2019) 20 SCC 1 , the limitations on the Court while exercising powers under Section 34 of the Arbitration Act has been highlighted thus:24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.19. In Dyna Technologies (P) Ltd. (supra), the view taken above has been reiterated in the following words:25. Moreover, umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.20. An identical line of reasoning has been adopted in South East Asia Marine Engg. & Constructions Ltd.[SEAMAC Limited] V. Oil India Ltd. (2020) 5 SCC 164 and it has been held as follows:12. It is a settled position that a court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the courts. Recently, this Court in Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd. [Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1 : 2019 SCC OnLine SC 1656] laid down the scope of such interference. This Court observed as follows : (SCC pp. 11-12, para 24)24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning. This Court in Dyna Technologies [Dyna Technologies (P) Ltd. V. Crompton Greaves Ltd., (2019) 20 SCC 1 : 2019 SCC OnLine SC 1656] observed as under : (SCC p.12, para 25)25. Moreover, umpteen number of judgments of this Court have categorically held that the Court should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.21. In the instant case, we are of the view that the interpretation of the relevant clauses of the Implementation Agreement, as arrived at by the learned Sole Arbitrator, are both, possible and plausible. Merely because another view could have been taken, can hardly be a ground for the learned Single Judge to have interfered with the arbitral award. In the given facts and circumstances of the case, the Appellate Court has rightly held that the learned Single Judge exceeded his jurisdiction in interfering with the award by questioning the interpretation given to the relevant clauses of the Implementation Agreement, as the reasons given are backed by logic.22. We, therefore, uphold the decision of the Appellate Court that has restored the findings returned in the arbitral award dated 05th June, 2005 to the effect that the State of Himachal Pradesh had proceeded to terminate the Implementation Agreement before expiry of the prescribed period which could have been extended up to 24 months, reckoned from the effective date. In the instant case, the State of H.P. had terminated the Implementation Agreement five months prior to the stipulated period by adopting a distorted interpretation of Clause 4 of the Implementation Agreement, which was impermissible.
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COMMISSIONER OF INCOME TAX VI Vs. VIRTUAL SOFT SYSTEMS LTD | lease term. 12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax. 13. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit. 14. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act. 15. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:17. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the same…. 16. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT Act. 17. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting standards. 18. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court. | 0[ds]The Guidance Note reflects the best practices adopted by the accountants throughout the world. The ICAI is a recognized body vested with the authority to recommend accounting standards for ultimate prescription by the Central Government in consultation with the National Advisory Committee of Accounting Standards for the presentation of true and fair financial statements.10. The purpose behind the amendment in Section 211 of the Companies Act, 1956 was to give clear sight that the accounting standards, as prescribed by the ICAI, shall prevail until the accounting standards are prescribed by the Central Government under this sub-section. The purpose behind the accounting standards was to arrive at a computation of real income after adjusting the permissible deprecation. It is not disputed that these accounting standards are made by the body of experts after extensive study and research.12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax.. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit.. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act.. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court | 0 | 3,101 | 1,227 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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lease term. 12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax. 13. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit. 14. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act. 15. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:17. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the same…. 16. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT Act. 17. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting standards. 18. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court.
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by the body of experts after extensive study and research.12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax.. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit.. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act.. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court
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Life Insurance Corporation Of India Vs. S. V. Oak And Another | It is wrong to contend that as the Insurance Company had no surplus in its hand on September 1, 1956, its contingent liabilities ceased to exist on that date. The contracts subsisted as long as the Insurance Company worked but the payments were postponed till the condition about actuarial surplus was fulfilled. That it was a contingent liability on September 1, 1956 did not make it anytheless a liability of the Insurance Company on the date of vesting. Under S.9 of the Life Insurance Corporation Act this liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain contracts contemplated under S.9. No similar provision was brought to our notice relative to the present purpose and none exists. The contracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The contracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation no separate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarial surplus.10. The argument that S. 28 precluded the discharge of this liability and must be regarded either expressly or impliedly to bar recovery may now be considered. In fact, that was the only argument which was pressed upon us on behalf of the Corporation by Mr. Setalvad. Section 26 of the Life Insurance Corporation Act provides as follows:"26. Actuarial valuations.The Corporation shall, once at least in every two years, cause an investigation to be made by actuaries into the financial condition of the business of the Corporation, including a valuation of the liabilities of the Corporation, and submit the report of the actuaries to the Central Government."11. Section 28 then lays down the following method of the utilization of the surplus :"28. Surplus how to be utilised.If as a result of any investigation undertaken by the Corporation under Section 26 any surplus emerges, not less than 95 per cent of such surplus shall be allocated to or reserved for the policy holders of the Corporation and the remainder may be utilised for such purposes and in such manner as the Central Government may determine."12. It was contended by Mr. Setalvad that the word "surplus" here has the same meaning as the surplus in S. 26 and the High Court was in error in giving it an extended meaning. We accept this argument. The word "surplus here has the technical meaning which arises from the Insurance Act which is made applicable for purposes of valuation by S.43 of the Life Insurance Corporation Act read with Notification No. GSR 734 dated August 23, 1958. That meaning is also apparent from S. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately connected.13. Under S. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating not less than 95% of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made (S. 24). 95% or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, "may" be utilised for such purposes and in such manner as the Central Government "may" determine. We were told at the hearing that there is no special direction or the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits contingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this could not be done and we entirely agree with him. Even if handed over the money would still continue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under S. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving no balance for meeting the obligations under S. 9 of the Act, S. 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well founded. That question cannot, however, arise because we agree with him that there is nothing peremptory in the latter part of S. 28 which requires, the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under S. 9 of the Act. Indeed, S. 9 is so compulsive in its wording that S. 28 which is discretionary, at least so far as the Central Government is concerned, may be taken to be controlled by the former. The two sections must be read harmoniously and it could not have been intended that S. 28 was to be used to negative what S. 9 provided so explicitly. We think that on this harmonious constructions we must hold that S. 28 does not put any bar in the way of the Corporation in the fulfilment of its obligations arising under S.9. To this interpretation we readily incline because, as pointed out above, to hold otherwise would render S. 28 in its latter part ultra vires the Constitution as it would amount to taking away by a side wind property of other persons. On the whole, therefore, we agree with the conclusions of the High Court though for very different reasons. | 0[ds]9. Under the Insurance Act an actuarial valuation of the business of an insurance company doing life business had to be undertaken at stated intervals and the result of the actuarial investigation had to be incorporated in a number of Forms (A to I) in accordance with the regulations set down in the first four Schedules. Form A was Balance Sheet of the companys business. It showed the assets and liabilities of the company in India. Form B showed the Account of Profit and Loss. Form D then incorporated the results of the working of the Insurance Company over the investigation period taking into account the results of the Balance Sheet and the Profit and Loss account and setting out the balance of the Insurance Fund at the end of the investigation period. This Fund was the cover for the insurance liability under the policies worked out actuarially. This Fund was to be held in approved securities, a list of which had to be maintained in Form AA. The value of these securities represented the State of the Fund. A consolidated Revenue Account was drawn up in Form G in which all the items of the working of a company figured and the Life Insurance Fund was finally determined. Form H was a summary of the actuarial valuation of all the policies and the net liability arising under them. These two items, namely, the net liability under business as shown in the summary of valuation of policies and the balance of Life Insurance Fund as shown in the Balance Sheet were then compared in Form I to find out whether there was a surplus available or not. It is from this actuarial surplus that the payments for the deposits were to be made. This position is admitted on all hands. It is wrong to contend that as the Insurance Company had no surplus in its hand on September 1, 1956, its contingent liabilities ceased to exist on that date. The contracts subsisted as long as the Insurance Company worked but the payments were postponed till the condition about actuarial surplus was fulfilled. That it was a contingent liability on September 1, 1956 did not make it anytheless a liability of the Insurance Company on the date of vesting. Under S.9 of the Life Insurance Corporation Act this liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain contracts contemplated under S.9. No similar provision was brought to our notice relative to the present purpose and none exists. The contracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The contracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation no separate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarialaccept this argument. The word "surplus here has the technical meaning which arises from the Insurance Act which is made applicable for purposes of valuation by S.43 of the Life Insurance Corporation Act read with Notification No. GSR 734 dated August 23, 1958. That meaning is also apparent from S. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately connected.Under S. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating not less than 95% of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made (S. 24). 95% or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, "may" be utilised for such purposes and in such manner as the Central Government "may" determine. We were told at the hearing that there is no special direction or the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits contingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this could not be done and we entirely agree with him. Even if handed over the money would still continue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under S. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving no balance for meeting the obligations under S. 9 of the Act, S. 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well founded. That question cannot, however, arise because we agree with him that there is nothing peremptory in the latter part of S. 28 which requires, the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under S. 9 of the Act. Indeed, S. 9 is so compulsive in its wording that S. 28 which is discretionary, at least so far as the Central Government is concerned, may be taken to be controlled by the former. The two sections must be read harmoniously and it could not have been intended that S. 28 was to be used to negative what S. 9 provided so explicitly. We think that on this harmonious constructions we must hold that S. 28 does not put any bar in the way of the Corporation in the fulfilment of its obligations arising under S.9. To this interpretation we readily incline because, as pointed out above, to hold otherwise would render S. 28 in its latter part ultra vires the Constitution as it would amount to taking away by a side wind property of other persons. On the whole, therefore, we agree with the conclusions of the High Court though for very different reasons. | 0 | 3,921 | 1,170 | ### Instruction:
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It is wrong to contend that as the Insurance Company had no surplus in its hand on September 1, 1956, its contingent liabilities ceased to exist on that date. The contracts subsisted as long as the Insurance Company worked but the payments were postponed till the condition about actuarial surplus was fulfilled. That it was a contingent liability on September 1, 1956 did not make it anytheless a liability of the Insurance Company on the date of vesting. Under S.9 of the Life Insurance Corporation Act this liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain contracts contemplated under S.9. No similar provision was brought to our notice relative to the present purpose and none exists. The contracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The contracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation no separate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarial surplus.10. The argument that S. 28 precluded the discharge of this liability and must be regarded either expressly or impliedly to bar recovery may now be considered. In fact, that was the only argument which was pressed upon us on behalf of the Corporation by Mr. Setalvad. Section 26 of the Life Insurance Corporation Act provides as follows:"26. Actuarial valuations.The Corporation shall, once at least in every two years, cause an investigation to be made by actuaries into the financial condition of the business of the Corporation, including a valuation of the liabilities of the Corporation, and submit the report of the actuaries to the Central Government."11. Section 28 then lays down the following method of the utilization of the surplus :"28. Surplus how to be utilised.If as a result of any investigation undertaken by the Corporation under Section 26 any surplus emerges, not less than 95 per cent of such surplus shall be allocated to or reserved for the policy holders of the Corporation and the remainder may be utilised for such purposes and in such manner as the Central Government may determine."12. It was contended by Mr. Setalvad that the word "surplus" here has the same meaning as the surplus in S. 26 and the High Court was in error in giving it an extended meaning. We accept this argument. The word "surplus here has the technical meaning which arises from the Insurance Act which is made applicable for purposes of valuation by S.43 of the Life Insurance Corporation Act read with Notification No. GSR 734 dated August 23, 1958. That meaning is also apparent from S. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately connected.13. Under S. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating not less than 95% of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made (S. 24). 95% or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, "may" be utilised for such purposes and in such manner as the Central Government "may" determine. We were told at the hearing that there is no special direction or the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits contingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this could not be done and we entirely agree with him. Even if handed over the money would still continue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under S. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving no balance for meeting the obligations under S. 9 of the Act, S. 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well founded. That question cannot, however, arise because we agree with him that there is nothing peremptory in the latter part of S. 28 which requires, the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under S. 9 of the Act. Indeed, S. 9 is so compulsive in its wording that S. 28 which is discretionary, at least so far as the Central Government is concerned, may be taken to be controlled by the former. The two sections must be read harmoniously and it could not have been intended that S. 28 was to be used to negative what S. 9 provided so explicitly. We think that on this harmonious constructions we must hold that S. 28 does not put any bar in the way of the Corporation in the fulfilment of its obligations arising under S.9. To this interpretation we readily incline because, as pointed out above, to hold otherwise would render S. 28 in its latter part ultra vires the Constitution as it would amount to taking away by a side wind property of other persons. On the whole, therefore, we agree with the conclusions of the High Court though for very different reasons.
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the Account of Profit and Loss. Form D then incorporated the results of the working of the Insurance Company over the investigation period taking into account the results of the Balance Sheet and the Profit and Loss account and setting out the balance of the Insurance Fund at the end of the investigation period. This Fund was the cover for the insurance liability under the policies worked out actuarially. This Fund was to be held in approved securities, a list of which had to be maintained in Form AA. The value of these securities represented the State of the Fund. A consolidated Revenue Account was drawn up in Form G in which all the items of the working of a company figured and the Life Insurance Fund was finally determined. Form H was a summary of the actuarial valuation of all the policies and the net liability arising under them. These two items, namely, the net liability under business as shown in the summary of valuation of policies and the balance of Life Insurance Fund as shown in the Balance Sheet were then compared in Form I to find out whether there was a surplus available or not. It is from this actuarial surplus that the payments for the deposits were to be made. This position is admitted on all hands. It is wrong to contend that as the Insurance Company had no surplus in its hand on September 1, 1956, its contingent liabilities ceased to exist on that date. The contracts subsisted as long as the Insurance Company worked but the payments were postponed till the condition about actuarial surplus was fulfilled. That it was a contingent liability on September 1, 1956 did not make it anytheless a liability of the Insurance Company on the date of vesting. Under S.9 of the Life Insurance Corporation Act this liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain contracts contemplated under S.9. No similar provision was brought to our notice relative to the present purpose and none exists. The contracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The contracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation no separate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarialaccept this argument. The word "surplus here has the technical meaning which arises from the Insurance Act which is made applicable for purposes of valuation by S.43 of the Life Insurance Corporation Act read with Notification No. GSR 734 dated August 23, 1958. That meaning is also apparent from S. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately connected.Under S. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating not less than 95% of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made (S. 24). 95% or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, "may" be utilised for such purposes and in such manner as the Central Government "may" determine. We were told at the hearing that there is no special direction or the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits contingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this could not be done and we entirely agree with him. Even if handed over the money would still continue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under S. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving no balance for meeting the obligations under S. 9 of the Act, S. 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well founded. That question cannot, however, arise because we agree with him that there is nothing peremptory in the latter part of S. 28 which requires, the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under S. 9 of the Act. Indeed, S. 9 is so compulsive in its wording that S. 28 which is discretionary, at least so far as the Central Government is concerned, may be taken to be controlled by the former. The two sections must be read harmoniously and it could not have been intended that S. 28 was to be used to negative what S. 9 provided so explicitly. We think that on this harmonious constructions we must hold that S. 28 does not put any bar in the way of the Corporation in the fulfilment of its obligations arising under S.9. To this interpretation we readily incline because, as pointed out above, to hold otherwise would render S. 28 in its latter part ultra vires the Constitution as it would amount to taking away by a side wind property of other persons. On the whole, therefore, we agree with the conclusions of the High Court though for very different reasons.
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State of Uttar Pradesh & Others Vs. Lakshmi Ice Factory & Others | pronounced in open court. If any other manner of the giving of the decision was permissible as wound be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under Cl. 24 to move the Tribunal for correction of errors. It is for this reason that Cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This Signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of Cls. 18 and 24(2) have been complied with in any case. 16. The third thing which to our mind indicates that pronouncement in open court is essential is Cl. 31 of the Statutory Order. That clause is in these terms: "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings." The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under S. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in S. 7 includes a Tribunal set up under a State law which law does not provide for an appeal: see S. 2(c)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but Cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to tie Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under S. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective. 17. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be nullity. 18. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and Cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held Cl. 9(7) of the Statutory Order to be imperative it would not matter whatever view is taken of the Standing Order of the latter cannot affect the former. 19. Mr. Aggarwala then argued that Cl. 9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed. His contention was this: Under S. 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it. The section does not require tie Tribunal to pronounce its decision in open court. The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with S.6 and of no effect. Hence be contended that the question whether the provisions of Cl. 9(7) of the Statutory Order or of Standing Order No. 36 were imperative did not really arise. 20. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither S. 6 nor any other provision in the Act provides how the award is to be made. Under S. 3(g) however the Government has power by general or special order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made under S. 3.The provision as to the pronouncement of the decision in open court in Cl. 9(7) of the Statutory Order clearly is within the powers contemplated in S,3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit award to the Government so that it may be enforced. It has nothing to do with the manner in which the Tribunal is to make its award.. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with. S. 6 | 0[ds]9. It seems to us that the rule read from Maxwell is not applicable to this case. It applies only when to hold the prescriptions in a statute as to the performance of a public duty to be imperative would work injustice and hardship without serving the object of the statute. None of these conditions are present in the statute now before us10. The case in band is wholly different. The proceedings that were had before the Tribunal would not become null and void if we hold cl. 9 (7) of the Statutory Order to be imperative. A view that the provision was imperative would cause no serious hardship to anyone. The Government can always require the Tribunal to pronounce its decision in open court extending, if necessary for the purpose, the time fixed for giving its decision. Either party to the proceeding can also ask the Government to call upon the Tribunal to pronounce its award in open court. There is no doubt that the Government will so call upon the Tribunal when the defect is brought to its notice for the Government itself referred the matter to the Tribunal for its decision. As soon as the Tribunal pronounces its award in open court, the proceedings will become fully effective11. It is also an accepted rule of Construction that enactments regulating the procedure in courts are usually imperative: Maxwell on Interpretation of Statutes, 10th ed. p. 379. It further appears to us that the object. of the Legislature would be defeated by reading Cl. 9(7) of the Statutory Order as containing a provision which is merely directory. We now proceed to ascertain that object from the other provisions in the Statutory Order, the Act and connected legislation13. Since the award has to be submitted to the Government by the Tribunal under S. 6 of the Act, the award has to be in writing for a verbal award cannot obviously be submitted to the Government. It would therefore appear that the provision in sub cl. (7) of Cl. 9 of the Statutory Order that the decision of the Tribunal shall be in writing is imperative. This would be an indication that the other provisions in the same sub-clause connected with it were intended to be equally imperative14. Then we find that Cl. 18 of the Statutory Order is in these terms: `The Tribunal or the adjudicator shall bear the dispute and give its or his decision within 180 days (excluding holidays but not annual vacations observed by courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute...Provided that the State Government may extend the said period from time to time." It seems to us that the provision in this clause is clearly mandatory. The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to C. 18 would be wholly unnecessary. The result therefore is that it is obligatory on the Tribunal to give its decision within 180 days from the date of the reference. A decision given, that is, an award made, beyond this period would be nullity. Now when Cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub cl. (7) of Cl. 9 of the Statutory Order, that is, by pronouncing it in open Court, for that is the only manner of giving a decision which that Order contemplates. It would follow that the terms of Cl. 9(7) were imperative, for otherwise no one would know whether the terms of Cl. 18 of the Statutory Order had been complied with, that is to say no one would know whether the award was void or not. The provisions of Cl. 18 may thus be rendered nugatory by holding Cl. 9(7) to be only directory. It would follow that unless the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated15. Sub-clause (2) of C1. 24 of the Statutory Order also leads to the same conclusion. That sub-clause is in these terms: "Clerical or arithmetical mistakes in decisions or awards, or errors arising therein from any accidental slip or omission may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties." Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time. The Tribunal has no right to correct an error beyond that time. Nor has a party a right to move the Tribunal for making any such corrections after the time has expired In order that the intention of Cl. 24(2) may be given effect to, it is necessary that the date of the giving of the decision should be known. It cannot promptly be known to the parties unless the award is pronounced in open court. If any other manner of the giving of the decision was permissible as wound be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under Cl. 24 to move the Tribunal for correction of errors. It is for this reason that Cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This Signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of Cls. 18 and 24(2) have been complied with in any case16. The third thing which to our mind indicates that pronouncement in open court is essential is Cl. 31 of the Statutory Order. That clause is in these terms: "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings." The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under S. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in S. 7 includes a Tribunal set up under a State law which law does not provide for an appeal: see S. 2(c)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but Cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to tie Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under S. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective17. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be nullity18. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and Cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held Cl. 9(7) of the Statutory Order to be imperative it would not matter whatever view is taken of the Standing Order of the latter cannot affect the former20. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither S. 6 nor any other provision in the Act provides how the award is to be made. Under S. 3(g) however the Government has power by general or special order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made under S. 3.The provision as to the pronouncement of the decision in open court in Cl. 9(7) of the Statutory Order clearly is within the powers contemplated in S,3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit award to the Government so that it may be enforced. It has nothing to do with the manner in which the Tribunal is to make its award.. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with. S. 6 | 0 | 3,593 | 1,929 | ### Instruction:
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pronounced in open court. If any other manner of the giving of the decision was permissible as wound be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under Cl. 24 to move the Tribunal for correction of errors. It is for this reason that Cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This Signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of Cls. 18 and 24(2) have been complied with in any case. 16. The third thing which to our mind indicates that pronouncement in open court is essential is Cl. 31 of the Statutory Order. That clause is in these terms: "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings." The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under S. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in S. 7 includes a Tribunal set up under a State law which law does not provide for an appeal: see S. 2(c)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but Cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to tie Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under S. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective. 17. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be nullity. 18. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and Cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held Cl. 9(7) of the Statutory Order to be imperative it would not matter whatever view is taken of the Standing Order of the latter cannot affect the former. 19. Mr. Aggarwala then argued that Cl. 9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed. His contention was this: Under S. 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it. The section does not require tie Tribunal to pronounce its decision in open court. The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with S.6 and of no effect. Hence be contended that the question whether the provisions of Cl. 9(7) of the Statutory Order or of Standing Order No. 36 were imperative did not really arise. 20. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither S. 6 nor any other provision in the Act provides how the award is to be made. Under S. 3(g) however the Government has power by general or special order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made under S. 3.The provision as to the pronouncement of the decision in open court in Cl. 9(7) of the Statutory Order clearly is within the powers contemplated in S,3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit award to the Government so that it may be enforced. It has nothing to do with the manner in which the Tribunal is to make its award.. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with. S. 6
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omission may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties." Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time. The Tribunal has no right to correct an error beyond that time. Nor has a party a right to move the Tribunal for making any such corrections after the time has expired In order that the intention of Cl. 24(2) may be given effect to, it is necessary that the date of the giving of the decision should be known. It cannot promptly be known to the parties unless the award is pronounced in open court. If any other manner of the giving of the decision was permissible as wound be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under Cl. 24 to move the Tribunal for correction of errors. It is for this reason that Cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This Signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of Cls. 18 and 24(2) have been complied with in any case16. The third thing which to our mind indicates that pronouncement in open court is essential is Cl. 31 of the Statutory Order. That clause is in these terms: "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings." The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under S. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in S. 7 includes a Tribunal set up under a State law which law does not provide for an appeal: see S. 2(c)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but Cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to tie Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under S. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective17. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be nullity18. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and Cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held Cl. 9(7) of the Statutory Order to be imperative it would not matter whatever view is taken of the Standing Order of the latter cannot affect the former20. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither S. 6 nor any other provision in the Act provides how the award is to be made. Under S. 3(g) however the Government has power by general or special order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made under S. 3.The provision as to the pronouncement of the decision in open court in Cl. 9(7) of the Statutory Order clearly is within the powers contemplated in S,3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit award to the Government so that it may be enforced. It has nothing to do with the manner in which the Tribunal is to make its award.. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with. S. 6
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National Insurance Co. Ltd Vs. Sobina Iakai | of Rs.1,06,000/- along with interest @ 12% per annum from the execution of the claim petition and directed the appellant company to pay the same within a period of two months, failing which additional interest @ 15% shall be paid till the final payment of the compensation is given to the claimant. 8. The appellant company, being aggrieved by the order of the Tribunal, filed MA (F) No. 4 (SH) of 1998 before the Shillong Bench of the Gauhati High Court. The High Court noticed the pleadings and referred to the decided cases of this Court. The High Court, after discussing the various judgments of this Court, culled out the following propositions of law:"i) If time is mentioned in the insurance policy or cover note, the effectiveness of the policy would start from that time and date and not from an earlier point of time;ii) If the accident takes place on that very date before the time which is mentioned in the insurance policy, the insurer will not be liable to indemnify the insured;iii) If the time is not mentioned in the insurance policy, it would commence from the date which means midnight and in case the accident occurred on the date of taking the policy, the insurer will be liable to meet the liability of the insured under the award.” 9. The ratio culled out by the High Court of the decided cases of this Court is correct but the High Court has wrongly applied the ratio of these cases and erroneously held that the insurance company is liable to pay compensation for the reason that the Cashier and the Development Officer have not been produced by the appellant company. 10. We have heard the learned counsel for the parties and also perused the relevant documents carefully. The learned counsel appearing for the appellant submitted that the controversy involved in the case is no longer res integra. In the instant case, though the High Court has correctly enunciated the law, but has seriously erred in not applying the ratio of the judgments of this Court correctly. He further submitted that when the insurance policy and the motor renewal endorsement were duly filed and these documents were duly proved before the Tribunal, in that event, the entire controversy ought to have been decided on the basis of these two documents and the production of Cashier and the Development Officer was not at all necessary for deciding the controversy in the case. 11. On the other hand, the learned counsel for the respondents supported the judgments of the Tribunal and the High Court. 12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20.7.1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.13. The insurance policy and the motor renewal endorsement were on record. Both these documents were produced and proved by the appellant company. The Tribunal and the High Court have seriously erred in ignoring these basic and vital documents and deciding the case against the appellant company on the ground of non-production of the Cashier and Development Officer. This manifestly erroneous approach of the High Court has led to serious miscarriage of justice.14. This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal (1990) 2 SCR 570. In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the mid- night of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.15. A three-judge Bench of this Court in M/s National Insurance Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi (1997) 1 SCC 66 has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto. This Court held that the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi (1998) 1 SCC 365 dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.17. In New India Assurance Co. vs. Bhagwati Devi [(1998 (6) SCC 534] , this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai (1999) 7 SCC 575 and National Insurance Co. Ltd. v. Chinto Devi (2000) 7 SCC 50 has taken the same view.18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [(JT 2001 (10) SC 396], this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the Court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner. | 1[ds]12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20.7.1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.13. The insurance policy and the motor renewal endorsement were on record. Both these documents were produced and proved by the appellant company. The Tribunal and the High Court have seriously erred in ignoring these basic and vital documents and deciding the case against the appellant company on the ground of non-production of the Cashier and Development Officer. This manifestly erroneous approach of the High Court has led to serious miscarriage of justice.14. This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal (1990) 2 SCR 570. In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the mid- night of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.15. A three-judge Bench of this Court in M/s National Insurance Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi (1997) 1 SCC 66 has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto. This Court held that the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi (1998) 1 SCC 365 dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.17. In New India Assurance Co. vs. Bhagwati Devi [(1998 (6) SCC 534] , this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai (1999) 7 SCC 575 and National Insurance Co. Ltd. v. Chinto Devi (2000) 7 SCC 50 has taken the same view.18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [(JT 2001 (10) SC 396], this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the Court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner. | 1 | 1,808 | 631 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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of Rs.1,06,000/- along with interest @ 12% per annum from the execution of the claim petition and directed the appellant company to pay the same within a period of two months, failing which additional interest @ 15% shall be paid till the final payment of the compensation is given to the claimant. 8. The appellant company, being aggrieved by the order of the Tribunal, filed MA (F) No. 4 (SH) of 1998 before the Shillong Bench of the Gauhati High Court. The High Court noticed the pleadings and referred to the decided cases of this Court. The High Court, after discussing the various judgments of this Court, culled out the following propositions of law:"i) If time is mentioned in the insurance policy or cover note, the effectiveness of the policy would start from that time and date and not from an earlier point of time;ii) If the accident takes place on that very date before the time which is mentioned in the insurance policy, the insurer will not be liable to indemnify the insured;iii) If the time is not mentioned in the insurance policy, it would commence from the date which means midnight and in case the accident occurred on the date of taking the policy, the insurer will be liable to meet the liability of the insured under the award.” 9. The ratio culled out by the High Court of the decided cases of this Court is correct but the High Court has wrongly applied the ratio of these cases and erroneously held that the insurance company is liable to pay compensation for the reason that the Cashier and the Development Officer have not been produced by the appellant company. 10. We have heard the learned counsel for the parties and also perused the relevant documents carefully. The learned counsel appearing for the appellant submitted that the controversy involved in the case is no longer res integra. In the instant case, though the High Court has correctly enunciated the law, but has seriously erred in not applying the ratio of the judgments of this Court correctly. He further submitted that when the insurance policy and the motor renewal endorsement were duly filed and these documents were duly proved before the Tribunal, in that event, the entire controversy ought to have been decided on the basis of these two documents and the production of Cashier and the Development Officer was not at all necessary for deciding the controversy in the case. 11. On the other hand, the learned counsel for the respondents supported the judgments of the Tribunal and the High Court. 12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20.7.1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.13. The insurance policy and the motor renewal endorsement were on record. Both these documents were produced and proved by the appellant company. The Tribunal and the High Court have seriously erred in ignoring these basic and vital documents and deciding the case against the appellant company on the ground of non-production of the Cashier and Development Officer. This manifestly erroneous approach of the High Court has led to serious miscarriage of justice.14. This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal (1990) 2 SCR 570. In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the mid- night of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.15. A three-judge Bench of this Court in M/s National Insurance Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi (1997) 1 SCC 66 has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto. This Court held that the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi (1998) 1 SCC 365 dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.17. In New India Assurance Co. vs. Bhagwati Devi [(1998 (6) SCC 534] , this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai (1999) 7 SCC 575 and National Insurance Co. Ltd. v. Chinto Devi (2000) 7 SCC 50 has taken the same view.18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [(JT 2001 (10) SC 396], this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the Court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner.
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12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20.7.1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.13. The insurance policy and the motor renewal endorsement were on record. Both these documents were produced and proved by the appellant company. The Tribunal and the High Court have seriously erred in ignoring these basic and vital documents and deciding the case against the appellant company on the ground of non-production of the Cashier and Development Officer. This manifestly erroneous approach of the High Court has led to serious miscarriage of justice.14. This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal (1990) 2 SCR 570. In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the mid- night of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.15. A three-judge Bench of this Court in M/s National Insurance Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi (1997) 1 SCC 66 has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto. This Court held that the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi (1998) 1 SCC 365 dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.17. In New India Assurance Co. vs. Bhagwati Devi [(1998 (6) SCC 534] , this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai (1999) 7 SCC 575 and National Insurance Co. Ltd. v. Chinto Devi (2000) 7 SCC 50 has taken the same view.18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [(JT 2001 (10) SC 396], this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the Court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner.
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M/S.Kapil Corepacks Pvt.Ltd Vs. Harbans Lal (D) Thr.Lrs | that on the basis of the said answer, the second appellant could be proceeded under Section 195 of Indian Penal Code read with Section 340 of Code of Criminal Procedure, are without any basis. Equally unwarranted is the observation of the Division Bench : "The Managing Director of the appellant had denied his signature earlier on the agreement/receipt, but when his statement was recorded under Order 10 CPC before the court, an admission came out that the signature were his.... The truth emerged though belatedly". Admission must obviously be a conscious and deliberate act. Admission can be explained. An admission of a signature is not an admission of execution of a document. The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is completely different from the power exercised by the court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. The courts anxiety to do justice by speeding up the process of the suit should not itself lead to injustice. Re : Question No.(iii) 20. The Division Bench has affirmed the order of the learned Single Judge that he will next hear whether he should proceed to initiate proceedings under Section 340 Cr.P.C. read with Section 195 of Indian Penal Code (`IPC for short). Section 195 of Cr.P.C. provides that whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. Section 195 (1)(b) of the Cr.P.C. provides that no court shall take cognizance of any offence punishable under section 195 of IPC when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court. Section 340 of the Cr.P.C. provides that when upon an application made to it in that behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195 of Cr.P.C. which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof in writing, sent it to a Magistrate of the first class having jurisdiction etc. Thus the power under section 340 CrPC read with section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence. By no stretch of imagination, a party giving an answer to a question put under Order 10 Rule 2 of the Code when not under oath and when not being examined as a witness, can attract section 195 of IPC and consequently cannot attract section 195(1)(b) and section 340 of Cr.P.C. 21. The respondents relied upon the decision of a Division Bench of the High Court in Satish Kumar v Union of India [2009 (108) DRJ 317] to contend that there can be a prosecution under Section 340 Cr.P.C. in regard to a statement under Order 10 Rule 2 of the Code. The conclusion in Satish Kumar that a party can be prosecuted under Section 340 Cr.P.C. for his answers in an examination under Order 10 Rule 2 is erroneous and unsound. As noticed above, the answers to an examination under Order 10 Rule 2 are not on oath and therefore the party is not deposing as a witness on oath when giving his answers under Order 10 Rule 2 of the Code. In Satish Kumar, the Delhi High Court purported to rely upon the decision of this Court in B.K. Gupta v. Damodar H. Bajaj [2001 (9) SCC 742 ], to hold that prosecution under section 340 CrPC is permissible in regard to answer given under Order 10 Rule 2 of the Code. What this Court observed in B.K. Gupta was that a complaint can be filed against a person who has given false affidavit or evidence in a proceeding before the court. But a party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving a affidavit. Section 340 of the Code will not be attracted with reference to any statement under Order 10 Rule 2 of the Code assuming that the Delhi High Court had laid down the law rightly in Satish Kumar, the said observation will not help the respondent in this case. In Satish Kumar, it was held that a false statement given in the examination under Order 10 Rule 2 of the Code can give rise to criminal prosecution under Section 340 of Cr.P.C. But in this case the High Court has proceeded on the basis that the second appellant spoke the `truth in response to the question in the examination under Order 10 Rule 2 of the Code. There is no finding that second appellant made a `false statement in his examination under Order 10 Rule 2 CPC. Therefore, the said decision will be inapplicable, even if it had been rightly decided. 22. Consequently, the decision of the court to consider initiation of proceedings under section 340 Cr.P.C. read with section 195 IPC in regard to an answer to a question put under Order 10 Rule 2 of the Code is ill- conceived and wholly without jurisdiction. | 1[ds]13. The object of Order 10 Rule 2 is not to elicit admissions. Nor does it provide for or contemplate admissions. The admissions are usually contemplated (i) in the pleadings (express or constructive under Order 8 Rule 5 of the Code); (ii) during examination of a party by the court under Order 10 Rule 1 of the Code; (iii) in answers to interrogatories under Order 11 Rule 8 of the Code; (iv) in response to notice to admit facts under Order 12 Rule 4 of the Code; (v) in any evidence or in an affidavit, on oath; and (vi) when any party voluntarily comes forward during the pendency of a suit or proceedings to make an admission.14. The power of court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code. Nothing however comes in the way of the court combining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2. But the court can only call upon a party to admit any document and cannot cross-examine a party with reference to a document.Both the learned Single Judge and the Division Bench committed an obvious error in equating admission of a signature which is claimed to be a clever forgery, as an admission of execution of the agreement/receipt and the contents thereof. The observations of the learned Single Judge in his order that "The Managing Director has admitted his signature on the agreement/receipt as well as stamp of the defendant no.1 company on the said document" and the further observation that on the basis of the said answer, the second appellant could be proceeded under Section 195 of Indian Penal Code read with Section 340 of Code of Criminal Procedure, are without any basis. Equally unwarranted is the observation of the Division Bench : "The Managing Director of the appellant had denied his signature earlier on the agreement/receipt, but when his statement was recorded under Order 10 CPC before the court, an admission came out that the signature were his.... The truth emerged though belatedly". Admission must obviously be a conscious and deliberate act. Admission can be explained. An admission of a signature is not an admission of execution of a document. The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is completely different from the power exercised by the court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. The courts anxiety to do justice by speeding up the process of the suit should not itself lead toSatish Kumar, the Delhi High Court purported to rely upon the decision of this Court in B.K. Gupta v. Damodar H. Bajaj [2001 (9) SCC 742 ], to hold that prosecution under section 340 CrPC is permissible in regard to answer given under Order 10 Rule 2 of the Code. What this Court observed in B.K. Gupta was that a complaint can be filed against a person who has given false affidavit or evidence in a proceeding before the court. But a party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving a affidavit. Section 340 of the Code will not be attracted with reference to any statement under Order 10 Rule 2 of the Code assuming that the Delhi High Court had laid down the law rightly in Satish Kumar, the said observation will not help the respondent in this case. In Satish Kumar, it was held that a false statement given in the examination under Order 10 Rule 2 of the Code can give rise to criminal prosecution under Section 340 of Cr.P.C. But in this case the High Court has proceeded on the basis that the second appellant spoke the `truth in response to the question in the examination under Order 10 Rule 2 of the Code. There is no finding that second appellant made a `false statement in his examination under Order 10 Rule 2 CPC. Therefore, the said decision will be inapplicable, even if it had been rightly decided.Consequently, the decision of the court to consider initiation of proceedings under section 340 Cr.P.C. read with section 195 IPC in regard to an answer to a question put under Order 10 Rule 2 of the Code is ill- conceived and wholly without jurisdiction. | 1 | 5,888 | 888 | ### Instruction:
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that on the basis of the said answer, the second appellant could be proceeded under Section 195 of Indian Penal Code read with Section 340 of Code of Criminal Procedure, are without any basis. Equally unwarranted is the observation of the Division Bench : "The Managing Director of the appellant had denied his signature earlier on the agreement/receipt, but when his statement was recorded under Order 10 CPC before the court, an admission came out that the signature were his.... The truth emerged though belatedly". Admission must obviously be a conscious and deliberate act. Admission can be explained. An admission of a signature is not an admission of execution of a document. The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is completely different from the power exercised by the court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. The courts anxiety to do justice by speeding up the process of the suit should not itself lead to injustice. Re : Question No.(iii) 20. The Division Bench has affirmed the order of the learned Single Judge that he will next hear whether he should proceed to initiate proceedings under Section 340 Cr.P.C. read with Section 195 of Indian Penal Code (`IPC for short). Section 195 of Cr.P.C. provides that whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. Section 195 (1)(b) of the Cr.P.C. provides that no court shall take cognizance of any offence punishable under section 195 of IPC when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court. Section 340 of the Cr.P.C. provides that when upon an application made to it in that behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195 of Cr.P.C. which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof in writing, sent it to a Magistrate of the first class having jurisdiction etc. Thus the power under section 340 CrPC read with section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence. By no stretch of imagination, a party giving an answer to a question put under Order 10 Rule 2 of the Code when not under oath and when not being examined as a witness, can attract section 195 of IPC and consequently cannot attract section 195(1)(b) and section 340 of Cr.P.C. 21. The respondents relied upon the decision of a Division Bench of the High Court in Satish Kumar v Union of India [2009 (108) DRJ 317] to contend that there can be a prosecution under Section 340 Cr.P.C. in regard to a statement under Order 10 Rule 2 of the Code. The conclusion in Satish Kumar that a party can be prosecuted under Section 340 Cr.P.C. for his answers in an examination under Order 10 Rule 2 is erroneous and unsound. As noticed above, the answers to an examination under Order 10 Rule 2 are not on oath and therefore the party is not deposing as a witness on oath when giving his answers under Order 10 Rule 2 of the Code. In Satish Kumar, the Delhi High Court purported to rely upon the decision of this Court in B.K. Gupta v. Damodar H. Bajaj [2001 (9) SCC 742 ], to hold that prosecution under section 340 CrPC is permissible in regard to answer given under Order 10 Rule 2 of the Code. What this Court observed in B.K. Gupta was that a complaint can be filed against a person who has given false affidavit or evidence in a proceeding before the court. But a party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving a affidavit. Section 340 of the Code will not be attracted with reference to any statement under Order 10 Rule 2 of the Code assuming that the Delhi High Court had laid down the law rightly in Satish Kumar, the said observation will not help the respondent in this case. In Satish Kumar, it was held that a false statement given in the examination under Order 10 Rule 2 of the Code can give rise to criminal prosecution under Section 340 of Cr.P.C. But in this case the High Court has proceeded on the basis that the second appellant spoke the `truth in response to the question in the examination under Order 10 Rule 2 of the Code. There is no finding that second appellant made a `false statement in his examination under Order 10 Rule 2 CPC. Therefore, the said decision will be inapplicable, even if it had been rightly decided. 22. Consequently, the decision of the court to consider initiation of proceedings under section 340 Cr.P.C. read with section 195 IPC in regard to an answer to a question put under Order 10 Rule 2 of the Code is ill- conceived and wholly without jurisdiction.
### Response:
1
### Explanation:
13. The object of Order 10 Rule 2 is not to elicit admissions. Nor does it provide for or contemplate admissions. The admissions are usually contemplated (i) in the pleadings (express or constructive under Order 8 Rule 5 of the Code); (ii) during examination of a party by the court under Order 10 Rule 1 of the Code; (iii) in answers to interrogatories under Order 11 Rule 8 of the Code; (iv) in response to notice to admit facts under Order 12 Rule 4 of the Code; (v) in any evidence or in an affidavit, on oath; and (vi) when any party voluntarily comes forward during the pendency of a suit or proceedings to make an admission.14. The power of court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code. Nothing however comes in the way of the court combining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2. But the court can only call upon a party to admit any document and cannot cross-examine a party with reference to a document.Both the learned Single Judge and the Division Bench committed an obvious error in equating admission of a signature which is claimed to be a clever forgery, as an admission of execution of the agreement/receipt and the contents thereof. The observations of the learned Single Judge in his order that "The Managing Director has admitted his signature on the agreement/receipt as well as stamp of the defendant no.1 company on the said document" and the further observation that on the basis of the said answer, the second appellant could be proceeded under Section 195 of Indian Penal Code read with Section 340 of Code of Criminal Procedure, are without any basis. Equally unwarranted is the observation of the Division Bench : "The Managing Director of the appellant had denied his signature earlier on the agreement/receipt, but when his statement was recorded under Order 10 CPC before the court, an admission came out that the signature were his.... The truth emerged though belatedly". Admission must obviously be a conscious and deliberate act. Admission can be explained. An admission of a signature is not an admission of execution of a document. The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is completely different from the power exercised by the court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. The courts anxiety to do justice by speeding up the process of the suit should not itself lead toSatish Kumar, the Delhi High Court purported to rely upon the decision of this Court in B.K. Gupta v. Damodar H. Bajaj [2001 (9) SCC 742 ], to hold that prosecution under section 340 CrPC is permissible in regard to answer given under Order 10 Rule 2 of the Code. What this Court observed in B.K. Gupta was that a complaint can be filed against a person who has given false affidavit or evidence in a proceeding before the court. But a party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving a affidavit. Section 340 of the Code will not be attracted with reference to any statement under Order 10 Rule 2 of the Code assuming that the Delhi High Court had laid down the law rightly in Satish Kumar, the said observation will not help the respondent in this case. In Satish Kumar, it was held that a false statement given in the examination under Order 10 Rule 2 of the Code can give rise to criminal prosecution under Section 340 of Cr.P.C. But in this case the High Court has proceeded on the basis that the second appellant spoke the `truth in response to the question in the examination under Order 10 Rule 2 of the Code. There is no finding that second appellant made a `false statement in his examination under Order 10 Rule 2 CPC. Therefore, the said decision will be inapplicable, even if it had been rightly decided.Consequently, the decision of the court to consider initiation of proceedings under section 340 Cr.P.C. read with section 195 IPC in regard to an answer to a question put under Order 10 Rule 2 of the Code is ill- conceived and wholly without jurisdiction.
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Yeshwant G. Chikhalkar Vs. Killick Nixon Limited | grounds. ( 2 ) THE Industrial Court by its Order dated December 24, 1998 dismissed the Complaint. It must be noted here that the Industrial Court has squarely dealt with all the points raised by the parties and has recorded its reasons on every point. In his thorough order the learned Member of the Industrial Court has rightly held that there is no functional integrality of the different divisions of the company with the Shipping Division wherein the concerned employees were employed. The main contention of the employees was that as the employees were transferable from one division to another and that there was unity of ownership and management, the entire company should be taken as one unit ignoring the separate divisions/undertakings/ establishments. The learned member has not accepted this contention and according to us rightly. The true test of two units being functionally integrated is laid down by the Supreme Court in various Judgments. It is a well established position and therefore we need not cite those judgments. This point has often arisen in the cases under the Employees Provident Funds Act, whereunder clubbing of two divisions or undertakings was questioned by the employers. It is now very well established that if one unit which is totally independent and which will not be closed or affected by the closure or stoppage of another unit owned by the same employer in that case these two units would be independent and not interdependent and, therefore, there cannot be any functional integrality between these units. If, however, one unit is adversely affected or is closed down because of the closure of the other unit and it cannot survive unless the other unit also functions in such a situation two units would be interdependent mutually. One would not survive unless the other continues to function. This concept of integrality between the two units is totally absent in the present case. The Shipping Division of the Company is altogether different and has no connection or relation with the activities of the other units. Merely because some employees are transferable or were transferred there being a unity of ownership and management it cannot be said that there is a functional integrality between the Shipping Division and the other divisions. According to us, the Industrial Court has rightly come to the conclusion that there is no functional integrality in existence between the Shipping Division and the other Divisions of the employer company and the natural consequences would be that the Chapter V-B of the I. D. Act will not be attracted and therefore there was no necessity of seeking permission from the Government under Section 25-M of the Act and even the seniority of the shipping division alone was to be considered. ( 3 ) THE learned single Judge has dismissed the writ petition filed by the employees against the Order of the Industrial Court. ( 4 ) SHRI Pendse, the learned Counsel for the employees before us reiterated and stressed before us the point of functional integrality between the Shipping Division and the other divisions of the employer company. We heard him at length. We are not able to take any different view taken by the Industrial Court and the learned single Judge. We have ourselves applied our mind to the submissions of the learned Counsel. We find no substance as the legal position is absolutely clear and well established. When the attention of the learned Counsel was drawn by us to the definition of the "industrial Establishment" there was no reply from the learned Counsel. The definition of the Industrial Establishment is a complete answer to all the submissions of the learned Counsel of the employees. We reproduce the said definition for ready reference:"industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, (i) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking; (ii) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking. "Applying the said definition in our case it becomes clear that the employer company is having several activities which are severable from each other and the Shipping Divisions activities are definitely severable from its other divisions viz. , (i) Snowcem Sales Division, (ii) Construction Equipment Division (iii) Clearing and Forwarding Division, (iv) Agencies and Marketing Division, (v) Stationery Division and a Shipping Division. It is not the case of the employees that the lay-off given to the Shipping Division employees was caused by any other Divisions or this lay-off will have any chain effect on any of the other Divisions. ( 5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutual inter-dependence, that is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported in (1986-I-LLJ-490) (SC ). We are afraid the ratio of the said judgment is not applicable in the present case. | 0[ds]We heard him at length. We are not able to take any different view taken by the Industrial Court and the learned single Judge. We have ourselves applied our mind to the submissions of the learned Counsel. We find no substance as the legal position is absolutely clear and well established. When the attention of the learned Counsel was drawn by us to the definition of the "industrial Establishment" there was no reply from the learned Counsel. The definition of the Industrial Establishment is a complete answer to all the submissions of the learned Counsel of the employees. We reproduce the said definition for ready reference:"industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, (i) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking; (ii) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking. "Applying the said definition in our case it becomes clear that the employer company is having several activities which are severable from each other and the Shipping Divisions activities are definitely severable from its other divisions viz. , (i) Snowcem Sales Division, (ii) Construction Equipment Division (iii) Clearing and Forwarding Division, (iv) Agencies and Marketing Division, (v) Stationery Division and a Shipping Division. It is not the case of the employees that thegiven to the Shipping Division employees was caused by any other Divisions or thiswill have any chain effect on any of the other5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutualthat is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported in(SC ). We are afraid the ratio of the said judgment is not applicable in the present5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutualt is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported inC ). We are afraid the ratio of the said judgment is not applicable in the presentcase. | 0 | 1,692 | 633 | ### Instruction:
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grounds. ( 2 ) THE Industrial Court by its Order dated December 24, 1998 dismissed the Complaint. It must be noted here that the Industrial Court has squarely dealt with all the points raised by the parties and has recorded its reasons on every point. In his thorough order the learned Member of the Industrial Court has rightly held that there is no functional integrality of the different divisions of the company with the Shipping Division wherein the concerned employees were employed. The main contention of the employees was that as the employees were transferable from one division to another and that there was unity of ownership and management, the entire company should be taken as one unit ignoring the separate divisions/undertakings/ establishments. The learned member has not accepted this contention and according to us rightly. The true test of two units being functionally integrated is laid down by the Supreme Court in various Judgments. It is a well established position and therefore we need not cite those judgments. This point has often arisen in the cases under the Employees Provident Funds Act, whereunder clubbing of two divisions or undertakings was questioned by the employers. It is now very well established that if one unit which is totally independent and which will not be closed or affected by the closure or stoppage of another unit owned by the same employer in that case these two units would be independent and not interdependent and, therefore, there cannot be any functional integrality between these units. If, however, one unit is adversely affected or is closed down because of the closure of the other unit and it cannot survive unless the other unit also functions in such a situation two units would be interdependent mutually. One would not survive unless the other continues to function. This concept of integrality between the two units is totally absent in the present case. The Shipping Division of the Company is altogether different and has no connection or relation with the activities of the other units. Merely because some employees are transferable or were transferred there being a unity of ownership and management it cannot be said that there is a functional integrality between the Shipping Division and the other divisions. According to us, the Industrial Court has rightly come to the conclusion that there is no functional integrality in existence between the Shipping Division and the other Divisions of the employer company and the natural consequences would be that the Chapter V-B of the I. D. Act will not be attracted and therefore there was no necessity of seeking permission from the Government under Section 25-M of the Act and even the seniority of the shipping division alone was to be considered. ( 3 ) THE learned single Judge has dismissed the writ petition filed by the employees against the Order of the Industrial Court. ( 4 ) SHRI Pendse, the learned Counsel for the employees before us reiterated and stressed before us the point of functional integrality between the Shipping Division and the other divisions of the employer company. We heard him at length. We are not able to take any different view taken by the Industrial Court and the learned single Judge. We have ourselves applied our mind to the submissions of the learned Counsel. We find no substance as the legal position is absolutely clear and well established. When the attention of the learned Counsel was drawn by us to the definition of the "industrial Establishment" there was no reply from the learned Counsel. The definition of the Industrial Establishment is a complete answer to all the submissions of the learned Counsel of the employees. We reproduce the said definition for ready reference:"industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, (i) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking; (ii) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking. "Applying the said definition in our case it becomes clear that the employer company is having several activities which are severable from each other and the Shipping Divisions activities are definitely severable from its other divisions viz. , (i) Snowcem Sales Division, (ii) Construction Equipment Division (iii) Clearing and Forwarding Division, (iv) Agencies and Marketing Division, (v) Stationery Division and a Shipping Division. It is not the case of the employees that the lay-off given to the Shipping Division employees was caused by any other Divisions or this lay-off will have any chain effect on any of the other Divisions. ( 5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutual inter-dependence, that is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported in (1986-I-LLJ-490) (SC ). We are afraid the ratio of the said judgment is not applicable in the present case.
### Response:
0
### Explanation:
We heard him at length. We are not able to take any different view taken by the Industrial Court and the learned single Judge. We have ourselves applied our mind to the submissions of the learned Counsel. We find no substance as the legal position is absolutely clear and well established. When the attention of the learned Counsel was drawn by us to the definition of the "industrial Establishment" there was no reply from the learned Counsel. The definition of the Industrial Establishment is a complete answer to all the submissions of the learned Counsel of the employees. We reproduce the said definition for ready reference:"industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, (i) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking; (ii) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking. "Applying the said definition in our case it becomes clear that the employer company is having several activities which are severable from each other and the Shipping Divisions activities are definitely severable from its other divisions viz. , (i) Snowcem Sales Division, (ii) Construction Equipment Division (iii) Clearing and Forwarding Division, (iv) Agencies and Marketing Division, (v) Stationery Division and a Shipping Division. It is not the case of the employees that thegiven to the Shipping Division employees was caused by any other Divisions or thiswill have any chain effect on any of the other5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutualthat is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported in(SC ). We are afraid the ratio of the said judgment is not applicable in the present5 ) FROM the definition it is clear that each division having severable activities of the employer is to be treated as distinct and separate unless there is mutualt is to say, one unit cannot survive in the absence of the other one. The learned Counsel has made a reference to the decision of the Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees Union v. S. G. Chemicals and Dyes Trading Ltd. and Ors. reported inC ). We are afraid the ratio of the said judgment is not applicable in the presentcase.
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Association Of Registration Plates Vs. Union Of India | public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution..." 26. I am of the opinion that in the fact situation of the present case especially having regard to the requirement contained in second para of clause (v) of sub-rule (1) of Rule 50 of obtaining approval from Central Road Research Institute or from any of the authorised agencies, the further condition in the NITs regarding turn over of a particular amount in the preceding year coupled with 15 or 25 per cent of the said turn over in the business of manufacturing licence plates and also the condition regarding experience in 3 to 5 countries are wholly arbitrary and have no rationale basis. The said condition is accordingly struck down. 27. Shri Ganesh has also submitted that clause 4 (x) of the Motor Vehicles (New High Security Registration Plates) Order, 2001 which lays down that the manufacturer or the vendor selected by the State for supply of such registration plates may be for the State as a whole or any region of the State is ultra vies as no such order can be made in the exercise of power conferred by sub-section (3) of Section 109 of the Act. Section 109 finds place in Chapter VII of the Act and the title of the said Chapter is - Construction, Equipment and Maintenance of Motor Vehicles. Section 109 of the Act reads as under: Section 109: General provision regarding construction and maintenance of vehicles: (1) Every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle.(2) Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signaling device of a prescribed nature.(3) If the Central Government is of the opinion that it is necessary or expedient so to do, in public interest, it may, by order published in the Official Gazette, notify that any article or process used by a manufacturer shall conform to such standard as may be specified in that order. 28. Section 2 (21-A) defines manufacturer shall and it means a person who is engaged in the manufacture of motor vehicles. Section 2(28) defines motor vehicles or vehicle and it means any mechanically propelled vehicle adapted for use upon roads. A motor vehicle manufactured by a manufacturer is sold without a registration plate. Thereafter the dealer sells the motor vehicle to a customer again without the registration plate. This position will be clear from the proviso to Section 39 of the Act which says that nothing in the section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position as it enjoins an application on behalf of the owner of a motor vehicle for its registration. The question of issuing a certificate of registration and assigning it a registration mark arises only after sale of a motor vehicle. Therefore until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into picture and there is no occasion for assigning it a registration mark. A manufacturer of vehicle is not at all concerned with registration thereof by the registering authority or assignment of a registration mark as contemplated by section 41 of the Act. Under sub-section (3) of section 109 the Central Government can prescribe the standards for any article or process used by a manufacturer. The power under this provision can, therefore, be exercised by the Central Government for prescribing the standard of the materials or articles or any process used as such in the manufacturing of the vehicle. Reading of sub-section (3) along with sub-sections (1) and (2) will show that it basically deals with the mechanical construction of the vehicle and to ensure safety both of the passengers travelling therein and also of others who are on the road. No order concerning a number plate simplicitor can, therefore, be issued by the Central Government in exercise of power conferred by sub-section (3) of Section 109 of the Act. Shri Rohtagi has submitted that power to issue such kind of notification can be traced to sections 41(6) and 64 (b & d) of the Act. It is not possible to accept the submission made. Section 41(6) empowers the Central Government to allot group of letters and figures to a State for the purpose of assignment of registration mark by making a notification in the Official Gazette. Therefore, there is no scope for issuing the impugned notification in exercise of power conferred by this provision. Section 64 confers rule-making power upon the Central Government but in view of section 212 the power to make rules under the Act is subject to the condition of the rules being made after previous publication. It is not the case of the respondents that the previous publication of the notification dated 22nd August, 2001 had been made. The Central Government has also never treated it to be a rule. Consequently the impugned notification cannot be held to have been made by the Central Government in exercise of power under Section 64(d) of the Act. In fact the Central Government has always treated it to be an Order issued under sub-section (3) of section 109 of the Act. The inevitable conclusion is that clause 4(x) of the notification dated 22nd August, 2001 could not be issued by the Central Government in exercise of the power conferred by section 109(3) of the Act and therefore the said notification is ultra vires. | 1[ds]13. The statutory provisions namely, the Act and the Rules do not lay down that there has to be only manufacturer for the entire State. The question which requires consideration is whether in view of these statutory provisions is it permissible for the Central Government, while exercising power under Section 109(3) of the Act, to issue an Order to the affect that the manufacturer or the vendor selected by the State for supply of such registration plates may be for whole of the State or any region of the State which in affect means selection of a single manufacturer for supply of registration plates in the entire State. Similarly the competence of the State Government to select a single manufacturer for supply of licence plates for the whole State has to be judged in that light. It is important to emphasise that in the case in hand the registration authority of the State Government has not undertaken to supply the licence plates. It is not a case where the State Government is either granting a largesse or selling its property where it can do so in favour of the single individual by inviting tenders. Similarly it is not a case where the State Government maybe buying some property which it may be so from a single individual by inviting tenders. Here the job of supplying HSVRP to all the existing owners of the vehicles and new buyers for a period of 15 years is being entrusted to a single licence plates manufacturer. Such HSVRP have to be bought by all those who own a vehicle. By selection of a single manufacturer a monopoly is sought to be created in his favour and all the owners of vehicles would be compelled to purchase HSVRP from than single manufacturer or his dealers even though in the matter of purchase of vehicle they have have a side range of choice without any kind of compulsion by the Government. This action of the State Government whereby all other licence plates manufacturers, who are satisfying the statutory requirement, namely, of second para of clause (v) of(1) of Rule 50 of the Rules, (have got Type Approval Certificate from the Central Road Research Institute or authorised agency) are totally excluded clearly violates the fundamental right of the writ petitioner as guaranteed under Article 19(1)(g) of the Constitution.14. The first decision touching the creation of a monopoly in favour of a private individual to carry on business to the exclusion of all others was rendered by Six Judges of this Court (the Court then consisted of six Judges only) in Rasheed Ahmed vs. Municipal Board Kairana, AIR 1950 SC 163 . In this case the Municipal Board, on the basis of an auction gave the exclusive contract, for carrying on whole sale business in vegetables, in favour of one H. The writ petitioner Rasheed Ahmad, who was earlier carrying on wholesale business as commission agent in vegetable applied for a licence but his application was rejected and the stand of the Municipal Board was that except for H, no one else can carry on the said wholesale business. It was held that the action of the Municipal Board in granting monopoly rights in favour of H violated the fundamental right of the writ petitioner guaranteed under Article 19(1)(g) of the Constitution.In view of Article 19(6)(ii) the carrying of any trade, business, industry or service by the State, would not be questionable on the ground that it infringes the right guaranteed by Article 19(1)(g) even though by law the State excludes the citizens, wholly or partially, from the trade or business entered upon by the State. The State is, therefore, free to create a monopoly in favour of itself. In Akadash Padhan vs. State of Orissa, AIR 1963 SC 1047 the vires of Orissa Kendu Leaves (Control of Trade) Act came up for consideration. Section 3 of the Act provides that no person other than (a) the Government; (b) an officer of government authorised in that behalf; (c) an agent in respect of the unit in which the leaves have grown shall purchase or transport Kendu leaves. Section 4 empowered the government to fix the price at which Kendu leaves shall be purchased by any officer or agent from the growers of Kendu leaves and section 8 empowered the government to appoint agents for different units to purchase Kendu leaves. Section 10 provides that Kendu leaves purchased by government or by their officers or agents under the Act shall be sold or otherwise disposed of in such manner as government may direct". Agents were appointed by the government to purchase Kendu leaves and they were authorised under the agreements to purchase Kendu leaves and also to trade in the Kendu leaves so purchased. After examining the provisions of the Act this Court held that sections 3 and 4 of the Act were valid but declined in substance to give effect to the monopoly because the agents appointed were not agents of the government merely for purchasing Kendu leaves but were authorised to carry on trade in leaves purchased on their own account. It was held that the operation of the State monopoly was also to give rise to a monopoly in favour of the agents which did not had the protection of Article 19(6)(ii). It was further held that the law cannot be used by the State for the private benefit of agents, it must only be administered for the benefit of the general public and any arrangement in which under the guise of monopoly the State permitted a set of persons to make profit for themselves by carrying on business in Kendu leaves on their own behalf was invalid. After the decision in Akadasi Padhan (supra) the Government of Orissa made some changes in the machinery for the implementation of the monopoly and entered into an agreement of sale of Kendu leaves after inviting tenders from traders. This was again challenged and in Rashbihari Panda vs. State of Orissa (1969(1) SCC 414 which was decided by a Constitution Bench. It was held that the validity of the law by which the State assumed the monopoly to trade in a given monopoly has to be judged by the test whether the entire benefit arising there from is to enure to the State, and the monopoly is not used as a cloak for conferring private benefit upon a limited class of persons. It was also held that the action of the government if conceived and executed in the interest of the general public is not open to judicial scrutiny but it is not open to judicial scrutiny but it is not open to the government thereby to create a monopoly in favour of third parties from their own monopoly. It was accordingly held that both the Schemes evolved by the government were violative of the fundamental right of the writ petitioners under Article 19(1)(g) and Article 14 because the schemes give rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatorymentioned earlier the eligibility criteria in the NIT issued by the Union Territory of Daman and Diu contains a clause that the bidder or the promoter of the joint venture partner should have experience in at least three countries in the field of registration plates having security features, their minimum net worth should be Rs. 40 crores, annual turnover in the immediately proceeding last year should be Rs. 50 crores and at least 15 per cent of this turnover must be from the registration plates business. The eligibility condition in the NIT issued by the State of Tamil Nadu requires the bidder, promoter or any member of the joint venture should have sufficient experience of working in at least five countries; must have a minimum net worth of Rs. 50 crores; and must have annual turnover of Rs. 100 crores in the immediately preceding last year. Similar is the case for State of Pondicherry which requires working experience in five countries; minimum annual turn over of Rs. 75 crores in the immediately preceding year and at least 15 per cent of this turn over must be from registration plates business. The State of West Bengal requires minimum net worth of Rs. 50 crores; must have a minimum annual turn over of Rs. 50 crores during the yearand 25 per cent of this amount should have from the High Security Registration Platescondition requiring certain percentage of turn over in registration plates business and experience in three to five countries, it is submitted, has been deliberately introduced in order to oust all Indian companies at the threshold and to ensure that the contract is awarded only to respondent nos. 5,6,7 and 89 to the conclusion of all others as they alone would be able to meet the eligibility qualification.21. In my opinion there is substance in the contention raised on behalf of the writ petitioners. The legislature has taken care in making a specific provisions regarding eligibility of manufacturers of licence plates. The second para of clause (v) of(1) of Rule 50 of the Rules says that the Central Road Research Institute, New Delhi or any of the agency authorised by the Central Government shall approve licence plates manufactures to the specifications given in clauses (i) to (iv) of theTherefore in terms of the Rules once approval is given to a licence plates manufacturer by Central Road Research Institute, New Delhi or any other agency authorised by the Central Government, it becomes eligible to supply HSVRP (licence plates). The HSVRP are sought to be introduced for the first time in the country after Rule 50 had been amended on 28.3.2001. Any clause in NIT which requires that the tenders or bidder or joint venture partner should have a turnover of Rs. 50 crores in the immediately preceding last year and at least 25 per cent of this turnover must be from the licence plates business, inevitably means that it would be a foreign company. The HSVRP having not been introduced in India so far it is obvious that no Indian company can have a turn over of that magnitude in the preceding year. The clear impact of this condition is that all Indian companies must be ousted even though they may be technically competent to manufacture HSVRP and have the requisite approval from the body or agencies mentioned in second para of clause (v) of(1) of Rule 50 of the Rules. The petitioners have placed on record the reply given by Hon. Minister for Road Transport and Highways in the Rajya Sabha on 29th November, 2001 in response to a question put to him regarding the details of the countries where holographic vehicle number plates have been made mandatory and the names of such countries are as under:(a) Armenia (b) Columbia (c) Congo (d) Curacao (e) Ethiopia (f) Georgia (g) Iraq (h) Mali (i) Maalta (j) Oman (k) Palestine (1) Srilanka (m) Tanzania (n) Uganda (o) Uruguay (p) Zambia.I am of the opinion that in the fact situation of the present case especially having regard to the requirement contained in second para of clause (v) of(1) of Rule 50 of obtaining approval from Central Road Research Institute or from any of the authorised agencies, the further condition in the NITs regarding turn over of a particular amount in the preceding year coupled with 15 or 25 per cent of the said turn over in the business of manufacturing licence plates and also the condition regarding experience in 3 to 5 countries are wholly arbitrary and have no rationale basis. The said condition is accordingly struck down.defines manufacturer shall and it means a person who is engaged in the manufacture of motor vehicles. Section 2(28) defines motor vehicles or vehicle and it means any mechanically propelled vehicle adapted for use upon roads. A motor vehicle manufactured by a manufacturer is sold without a registration plate. Thereafter the dealer sells the motor vehicle to a customer again without the registration plate. This position will be clear from the proviso to Section 39 of the Act which says that nothing in the section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position as it enjoins an application on behalf of the owner of a motor vehicle for its registration. The question of issuing a certificate of registration and assigning it a registration mark arises only after sale of a motor vehicle. Therefore until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into picture and there is no occasion for assigning it a registration mark. A manufacturer of vehicle is not at all concerned with registration thereof by the registering authority or assignment of a registration mark as contemplated by section 41 of the Act. Under(3) of section 109 the Central Government can prescribe the standards for any article or process used by a manufacturer. The power under this provision can, therefore, be exercised by the Central Government for prescribing the standard of the materials or articles or any process used as such in the manufacturing of the vehicle. Reading of(3) along with(1) and (2) will show that it basically deals with the mechanical construction of the vehicle and to ensure safety both of the passengers travelling therein and also of others who are on the road. No order concerning a number plate simplicitor can, therefore, be issued by the Central Government in exercise of power conferred by(3) of Section 109 of the Act.Shri Rohtagi has submitted that power to issue such kind of notification can be traced to sections 41(6) and 64 (b & d) of the Act. It is not possible to accept the submission made. Section 41(6) empowers the Central Government to allot group of letters and figures to a State for the purpose of assignment of registration mark by making a notification in the Official Gazette. Therefore, there is no scope for issuing the impugned notification in exercise of power conferred by this provision. Section 64 conferspower upon the Central Government but in view of section 212 the power to make rules under the Act is subject to the condition of the rules being made after previous publication. It is not the case of the respondents that the previous publication of the notification dated 22nd August, 2001 had been made. The Central Government has also never treated it to be a rule. Consequently the impugned notification cannot be held to have been made by the Central Government in exercise of power under Section 64(d) of the Act. In fact the Central Government has always treated it to be an Order issued under(3) of section 109 of the Act. The inevitable conclusion is that clause 4(x) of the notification dated 22nd August, 2001 could not be issued by the Central Government in exercise of the power conferred by section 109(3) of the Act and therefore the said notification is ultra vires. | 1 | 9,080 | 2,801 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution..." 26. I am of the opinion that in the fact situation of the present case especially having regard to the requirement contained in second para of clause (v) of sub-rule (1) of Rule 50 of obtaining approval from Central Road Research Institute or from any of the authorised agencies, the further condition in the NITs regarding turn over of a particular amount in the preceding year coupled with 15 or 25 per cent of the said turn over in the business of manufacturing licence plates and also the condition regarding experience in 3 to 5 countries are wholly arbitrary and have no rationale basis. The said condition is accordingly struck down. 27. Shri Ganesh has also submitted that clause 4 (x) of the Motor Vehicles (New High Security Registration Plates) Order, 2001 which lays down that the manufacturer or the vendor selected by the State for supply of such registration plates may be for the State as a whole or any region of the State is ultra vies as no such order can be made in the exercise of power conferred by sub-section (3) of Section 109 of the Act. Section 109 finds place in Chapter VII of the Act and the title of the said Chapter is - Construction, Equipment and Maintenance of Motor Vehicles. Section 109 of the Act reads as under: Section 109: General provision regarding construction and maintenance of vehicles: (1) Every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle.(2) Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signaling device of a prescribed nature.(3) If the Central Government is of the opinion that it is necessary or expedient so to do, in public interest, it may, by order published in the Official Gazette, notify that any article or process used by a manufacturer shall conform to such standard as may be specified in that order. 28. Section 2 (21-A) defines manufacturer shall and it means a person who is engaged in the manufacture of motor vehicles. Section 2(28) defines motor vehicles or vehicle and it means any mechanically propelled vehicle adapted for use upon roads. A motor vehicle manufactured by a manufacturer is sold without a registration plate. Thereafter the dealer sells the motor vehicle to a customer again without the registration plate. This position will be clear from the proviso to Section 39 of the Act which says that nothing in the section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position as it enjoins an application on behalf of the owner of a motor vehicle for its registration. The question of issuing a certificate of registration and assigning it a registration mark arises only after sale of a motor vehicle. Therefore until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into picture and there is no occasion for assigning it a registration mark. A manufacturer of vehicle is not at all concerned with registration thereof by the registering authority or assignment of a registration mark as contemplated by section 41 of the Act. Under sub-section (3) of section 109 the Central Government can prescribe the standards for any article or process used by a manufacturer. The power under this provision can, therefore, be exercised by the Central Government for prescribing the standard of the materials or articles or any process used as such in the manufacturing of the vehicle. Reading of sub-section (3) along with sub-sections (1) and (2) will show that it basically deals with the mechanical construction of the vehicle and to ensure safety both of the passengers travelling therein and also of others who are on the road. No order concerning a number plate simplicitor can, therefore, be issued by the Central Government in exercise of power conferred by sub-section (3) of Section 109 of the Act. Shri Rohtagi has submitted that power to issue such kind of notification can be traced to sections 41(6) and 64 (b & d) of the Act. It is not possible to accept the submission made. Section 41(6) empowers the Central Government to allot group of letters and figures to a State for the purpose of assignment of registration mark by making a notification in the Official Gazette. Therefore, there is no scope for issuing the impugned notification in exercise of power conferred by this provision. Section 64 confers rule-making power upon the Central Government but in view of section 212 the power to make rules under the Act is subject to the condition of the rules being made after previous publication. It is not the case of the respondents that the previous publication of the notification dated 22nd August, 2001 had been made. The Central Government has also never treated it to be a rule. Consequently the impugned notification cannot be held to have been made by the Central Government in exercise of power under Section 64(d) of the Act. In fact the Central Government has always treated it to be an Order issued under sub-section (3) of section 109 of the Act. The inevitable conclusion is that clause 4(x) of the notification dated 22nd August, 2001 could not be issued by the Central Government in exercise of the power conferred by section 109(3) of the Act and therefore the said notification is ultra vires.
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of the Rules says that the Central Road Research Institute, New Delhi or any of the agency authorised by the Central Government shall approve licence plates manufactures to the specifications given in clauses (i) to (iv) of theTherefore in terms of the Rules once approval is given to a licence plates manufacturer by Central Road Research Institute, New Delhi or any other agency authorised by the Central Government, it becomes eligible to supply HSVRP (licence plates). The HSVRP are sought to be introduced for the first time in the country after Rule 50 had been amended on 28.3.2001. Any clause in NIT which requires that the tenders or bidder or joint venture partner should have a turnover of Rs. 50 crores in the immediately preceding last year and at least 25 per cent of this turnover must be from the licence plates business, inevitably means that it would be a foreign company. The HSVRP having not been introduced in India so far it is obvious that no Indian company can have a turn over of that magnitude in the preceding year. The clear impact of this condition is that all Indian companies must be ousted even though they may be technically competent to manufacture HSVRP and have the requisite approval from the body or agencies mentioned in second para of clause (v) of(1) of Rule 50 of the Rules. The petitioners have placed on record the reply given by Hon. Minister for Road Transport and Highways in the Rajya Sabha on 29th November, 2001 in response to a question put to him regarding the details of the countries where holographic vehicle number plates have been made mandatory and the names of such countries are as under:(a) Armenia (b) Columbia (c) Congo (d) Curacao (e) Ethiopia (f) Georgia (g) Iraq (h) Mali (i) Maalta (j) Oman (k) Palestine (1) Srilanka (m) Tanzania (n) Uganda (o) Uruguay (p) Zambia.I am of the opinion that in the fact situation of the present case especially having regard to the requirement contained in second para of clause (v) of(1) of Rule 50 of obtaining approval from Central Road Research Institute or from any of the authorised agencies, the further condition in the NITs regarding turn over of a particular amount in the preceding year coupled with 15 or 25 per cent of the said turn over in the business of manufacturing licence plates and also the condition regarding experience in 3 to 5 countries are wholly arbitrary and have no rationale basis. The said condition is accordingly struck down.defines manufacturer shall and it means a person who is engaged in the manufacture of motor vehicles. Section 2(28) defines motor vehicles or vehicle and it means any mechanically propelled vehicle adapted for use upon roads. A motor vehicle manufactured by a manufacturer is sold without a registration plate. Thereafter the dealer sells the motor vehicle to a customer again without the registration plate. This position will be clear from the proviso to Section 39 of the Act which says that nothing in the section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position as it enjoins an application on behalf of the owner of a motor vehicle for its registration. The question of issuing a certificate of registration and assigning it a registration mark arises only after sale of a motor vehicle. Therefore until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into picture and there is no occasion for assigning it a registration mark. A manufacturer of vehicle is not at all concerned with registration thereof by the registering authority or assignment of a registration mark as contemplated by section 41 of the Act. Under(3) of section 109 the Central Government can prescribe the standards for any article or process used by a manufacturer. The power under this provision can, therefore, be exercised by the Central Government for prescribing the standard of the materials or articles or any process used as such in the manufacturing of the vehicle. Reading of(3) along with(1) and (2) will show that it basically deals with the mechanical construction of the vehicle and to ensure safety both of the passengers travelling therein and also of others who are on the road. No order concerning a number plate simplicitor can, therefore, be issued by the Central Government in exercise of power conferred by(3) of Section 109 of the Act.Shri Rohtagi has submitted that power to issue such kind of notification can be traced to sections 41(6) and 64 (b & d) of the Act. It is not possible to accept the submission made. Section 41(6) empowers the Central Government to allot group of letters and figures to a State for the purpose of assignment of registration mark by making a notification in the Official Gazette. Therefore, there is no scope for issuing the impugned notification in exercise of power conferred by this provision. Section 64 conferspower upon the Central Government but in view of section 212 the power to make rules under the Act is subject to the condition of the rules being made after previous publication. It is not the case of the respondents that the previous publication of the notification dated 22nd August, 2001 had been made. The Central Government has also never treated it to be a rule. Consequently the impugned notification cannot be held to have been made by the Central Government in exercise of power under Section 64(d) of the Act. In fact the Central Government has always treated it to be an Order issued under(3) of section 109 of the Act. The inevitable conclusion is that clause 4(x) of the notification dated 22nd August, 2001 could not be issued by the Central Government in exercise of the power conferred by section 109(3) of the Act and therefore the said notification is ultra vires.
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Indian Oil Corporation Ltd. and Ors Vs. T. Natarajan | by the observations of the Single Judge at best gave liberty to the Respondent to file a representation for re-consideration of his case for restoration of his dealership by the IOC but not beyond it. Indeed, according to learned Counsel, if the award had been in favour of the Respondent, then in such case, there was no need for the Arbitrator and Single Judge to give liberty to the Respondent to apply for re-consideration of his case. 27. In the third place, learned Counsel urged that once the IOC considered the case of the Respondent and found no case to grant him any relief much less the benefit of restoration of his dealership, the issue attained finality between the parties. 28. It was his submission that the Division Bench, in this circumstance, in its writ jurisdiction had no power to sit as an Appellate Court over the decision of the IOC and direct restoration of the Respondents dealership. 29. It is mainly these three submissions, the learned senior Counsel elaborated his submissions by referring to various documents on record. 30. In reply, Mr. Mohan Parasaran, learned senior Counsel, supported the impugned order and contended that the impugned order does not call for any interference and, therefore, the appeal deserves dismissal. 31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant. 32. The short question, which arises for consideration in this appeal, is whether the Division Bench was right in reversing the decision of the Single Judge (writ court). In other words, the question, which arises for consideration is whether the Division Bench was right in setting aside the letter dated 13.03.2013 of IOC which terminated the Respondents dealership and was, therefore, justified in issuing a mandamus against the IOC to restore the dealership of the Respondent herein and resume supply of fuel to his fuel station. 33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons. 34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent. 35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons. 36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings. 37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013. 38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court. 39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable. 40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside. 41. Learned senior Counsel for the Respondent then argued that the IOC has issued certain circulars providing therein as to how the cases of terminated dealership of any dealer is to be re-considered. This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above. | 1[ds]31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant.33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons.34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent.35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons.36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings.37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013.38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court.39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable.40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside.This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above. | 1 | 2,769 | 726 | ### 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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by the observations of the Single Judge at best gave liberty to the Respondent to file a representation for re-consideration of his case for restoration of his dealership by the IOC but not beyond it. Indeed, according to learned Counsel, if the award had been in favour of the Respondent, then in such case, there was no need for the Arbitrator and Single Judge to give liberty to the Respondent to apply for re-consideration of his case. 27. In the third place, learned Counsel urged that once the IOC considered the case of the Respondent and found no case to grant him any relief much less the benefit of restoration of his dealership, the issue attained finality between the parties. 28. It was his submission that the Division Bench, in this circumstance, in its writ jurisdiction had no power to sit as an Appellate Court over the decision of the IOC and direct restoration of the Respondents dealership. 29. It is mainly these three submissions, the learned senior Counsel elaborated his submissions by referring to various documents on record. 30. In reply, Mr. Mohan Parasaran, learned senior Counsel, supported the impugned order and contended that the impugned order does not call for any interference and, therefore, the appeal deserves dismissal. 31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant. 32. The short question, which arises for consideration in this appeal, is whether the Division Bench was right in reversing the decision of the Single Judge (writ court). In other words, the question, which arises for consideration is whether the Division Bench was right in setting aside the letter dated 13.03.2013 of IOC which terminated the Respondents dealership and was, therefore, justified in issuing a mandamus against the IOC to restore the dealership of the Respondent herein and resume supply of fuel to his fuel station. 33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons. 34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent. 35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons. 36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings. 37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013. 38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court. 39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable. 40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside. 41. Learned senior Counsel for the Respondent then argued that the IOC has issued certain circulars providing therein as to how the cases of terminated dealership of any dealer is to be re-considered. This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above.
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31. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned senior Counsel for the Appellant.33. In our considered opinion, the Division Bench was not justified in doing so and this we say for the following reasons.34. Coming first to the question as to what is the proper interpretation of the award dated 14.10.2011 and the order of the Single Judge which upheld the award and what it actually decide, in our opinion, a plain reading of these orders indicates that the Arbitrator, in clear terms, held against the Respondent that he committed breaches of the dealership agreement and as a result of this categorical finding, the Arbitrator, in substance, upheld the letter of termination of dealership calling for stern action against the Respondent. Indeed, once the breaches were held made out, the only consequence that ensued from such finding was to uphold the letter of termination of dealership agreement. Since arbitration Clause 69 (c) empowers the Arbitrator to pass any order in the arbitration proceedings, the Arbitrator and so also the Single Judge while upholding the award considered it proper to grant liberty to the Respondent to file a representation to the IOC for re-consideration of his case for restoration of his dealership. Such liberty could never be construed to mean that the Arbitrator had either set aside the letter of termination of the Respondents dealership or directed to restore the supply of fuel to the Respondent.35. The Respondent, pursuant to the liberty granted, filed his representation to the IOC but the IOC, in their discretion, rejected the same with reasons.36. In our opinion, reconsideration of the Respondents case as to whether his dealership should be restored or not was an independent cause of action between the parties and the same arose after the award was passed and upheld by the Single Judge. It has, therefore, nothing to do with the award and nor it could be linked with the arbitration proceedings.37. In our opinion, it was solely within the discretion of the IOC-they being the principal to decide as to whether the Respondents dealership should be restored or not and, if so, on what grounds. The IOC considered the case of the Respondent and after taking into account all the facts and circumstances appearing in the Respondents working, came to a conclusion that it was not possible for them to restore his dealership. It was accordingly informed to the Respondent vide letter dated 13.03.2013.38. In our opinion, the writ Court (Single Judge) was, therefore, justified in dismissing the Respondents writ petition and upholding the rejection on the ground that the High Court cannot interfere in the administrative decision of IOC and nor it can substitute its decision by acting as an Appellate Court over such decision in exercise of writ jurisdiction. It is more so when such decision is based on reasons involving no arbitrariness of any nature therein which may call for any interference by the High Court.39. The Division Bench, in our opinion, committed an error in interpreting the award. The Division Bench proceeded on entirely wrong assumption that since the award was in Respondents favour, the IOC had to simply issue a consequential order in compliance thereof directing the IOC to revive the Respondents dealership and restore the supply of fuel to the Respondent. As held supra, this approach of the Division Bench was erroneous and is, therefore, legally unsustainable.40. In the light of what is discussed above, we are of the considered view that the reasoning and conclusion arrived at by the Single Judge is just and proper, whereas the reasoning and conclusion arrived at by the Division Bench is not proper and hence deserves to be set aside.This submission, in our opinion, has no merit and we do not consider it proper to go into this aspect of the case in the light of what is held above.
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Bai Velbai Vs. Commissioner of Income Tax, Bombay City | "We are of the view that learned counsel for the appellant has prima facie given good grounds for his contention that the finding of the Tribunal as to the sum of Rs. 1, 38, 000 is based on no evidence rather it is based on conjecture and surmise, and, furthermore, is vitiated by a failure to take into consideration several crucial matters bearing on the question4. We may first point out that the Tribunal has given no reasons of its own for making a distinction between the sum of Rs. 1, 00, 000 and the sum of Rs. 1, 38, 000 out of the sum of Rs. 2, 38, 000 received by the encashment of 238 high denomination currency notes. Assuming that the Tribunal adopted whatever reasons the Income-tax Officer had given in his assessment order, it prima facie appears to us that with regard to the sum of Rs. 1, 38, 000 the Income-tax Officer has not referred to any particular materials on which he made a distinction between Rs. 1, 38, 000 and Rs. 1, 00, 000. The Tribunal did indeed refer to the withdrawals which the appellant made from her fixed deposit amounts in the three banks, the withdrawals amounting to about Rs. 4, 00, 220 early in 1942. The Tribunal then pointed out that the appellant invested Rs. 2, 53, 980 in September, 1942, in municipal bonds and Rs. 70, 000 in shares in 1943. This was followed by a further investment in 1945 in the municipal debentures. This left a sum of a little over Rs. 76, 000 with the appellant. The Tribunal referred to a further investment in municipal debentures of about Rs. 20, 000. But the Tribunal did not consider the case of the appellant as regards her having the entire Rs. 76, 000 and odd nor her explanation as to the source from which the municipal debentures were acquired. What, however, the Tribunal failed to consider was the withdrawals which the appellant had made in cash from the capital accounts in her different businesses from 1936-1937 to 1945-1946. The Income-tax Officer referred to these withdrawals and disposed of them on the short ground that the capital accounts were maintained more for the purpose of inter-departmental transfer of money than for her personal needs. Learned counsel for the appellant has referred us to these capital accounts and has pointed out that though transfer entries occurred in the accounts of 1936-1937 and 1937-1938, there were other entries in the books of the years 1939-1940 to 1945-1946 which showed that the appellant had withdrawn various amounts in cash from her businesses. These withdrawals do not appear to have been considered by the Tribunal at all. If these withdrawals are added to what the appellant had withdrawn from her fixed deposit amounts in the three banks, learned counsel for the appellant contends that the total amount would come to about Rs. 6, 00, 000 or Rs. 7, 00, 000 and would satisfactorily account for the large amount of cash in her hands. The Tribunal pointed out that the appellant had to disburse legacies worth Rs. 2, 50, 000 under the will left by her husband. The Tribunal opined that these disbursements must have been spread over quite a long period. The complaint of learned counsel for the appellant is that there is no evidence that the disbursements were spread over a long period and the finding of the Tribunal was based on a mere surmise. His further contention is that if the total amount of withdrawals from the businesses and the fixed deposit accounts were taken into consideration, the appellant would still be left with a large sum of money in her handsLearned counsel for the appellant has also made a grievance of the fact that in calculating the withdrawals made by the appellant from her, businesses, the Income-tax Officer had first excluded withdrawals on account of household expenses, income-tax, etc ; but later on he said that a portion of the cash withdrawals together with the income from properties and the cash left by the appellants husband must have gone to pay the legacies, household expenses, etc. This again is said to be based on surmise rather than on any evidence on record5. We do not think that it is necessary or advisable to consider in detail the various contentions urged on behalf of the appellant. These contentions will require a detailed consideration when the questions of law which arise out of the Tribunals order will fall for decision. It is sufficient for us to say at this stage that the three questions which the appellant has raised and to which we have made a reference earlier in this judgment are questions of law which do arise out of the Tribunals order dated May 6, 1959. In coming to this conclusion we have kept in mind the observations made by this court in Omar Salay Mahomed Sait v. Commissioner of Income-tax, and Homi Jehangir Gheesta v. Commissioner of Income-tax. We have read the order of the Tribunal as a whole and we are not unmindful of the observation made in the case of Homi Jehangir Gheesta that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. We may perhaps add that what we have said in this judgment is meant only to show that certain questions of law arise out of the Tribunals order and the High Court was wrong in summarily rejecting the application for a reference. As to how the questions of law should be answered will be a matter for the High Court to decide when on the statement of the case filed by the Tribunal the reference is dealt with by itFor the reasons given above we allow this appeal and set aside the order of the High Court dated March 27, 1961, by which it summarily rejected the application for a reference under section 66 of the Act. | 1[ds]3. Prima facie, the question whether the amount of Rs. 1, 38, 000 came out of the savings or withdrawals made by the appellant from her several businesses or was income from undisclosed sources, would be a question of fact to be determined on a consideration of the facts and circumstances proved or admitted in the case. As this court observed in Sree Meenakshi Mills v. Commissioner ofa finding of fact does not alter its character as one of fact merely because it is itself an inference from other basic facts ; but a finding on a question of fact is open to attack under section 66 as erroneous in law when there is no evidence to support it or if it is perverse or has been reached without due consideration of the several matters relevant for such a determinationLearned counsel for the appellant has argued that the present case comes under the second category aforesaid and the High Court was wrong in summarily rejecting the application for a reference. We do not think that the assessment order in all its particulars can be said to come under the rule of "no evidence in support of the finding." Neither does learned counsel for the appellant so contend.We may first point out that the Tribunal has given no reasons of its own for making a distinction between the sum of Rs. 1, 00, 000 and the sum of Rs. 1, 38, 000 out of the sum of Rs. 2, 38, 000 received by the encashment of 238 high denomination currency notes. Assuming that the Tribunal adopted whatever reasons theOfficer had given in his assessment order, it prima facie appears to us that with regard to the sum of Rs. 1, 38, 000 theOfficer has not referred to any particular materials on which he made a distinction between Rs. 1, 38, 000 and Rs. 1, 00, 000. The Tribunal did indeed refer to the withdrawals which the appellant made from her fixed deposit amounts in the three banks, the withdrawals amounting to about Rs. 4, 00, 220 early in 1942. The Tribunal then pointed out that the appellant invested Rs. 2, 53, 980 in September, 1942, in municipal bonds and Rs. 70, 000 in shares in 1943. This was followed by a further investment in 1945 in the municipal debentures. This left a sum of a little over Rs. 76, 000 with the appellant. The Tribunal referred to a further investment in municipal debentures of about Rs. 20, 000. But the Tribunal did not consider the case of the appellant as regards her having the entire Rs. 76, 000 and odd nor her explanation as to the source from which the municipal debentures were acquired. What, however, the Tribunal failed to consider was the withdrawals which the appellant had made in cash from the capital accounts in her different businesses from6. TheOfficer referred to these withdrawals and disposed of them on the short ground that the capital accounts were maintained more for the purpose oftransfer of money than for her personalcounsel for the appellant has referred us to these capital accounts and has pointed out that though transfer entries occurred in the accounts of8, there were other entries in the books of the years46 which showed that the appellant had withdrawn various amounts in cash from herbusinesses. These withdrawals do not appear to have been considered by the Tribunal at all. If these withdrawals are added to what the appellant had withdrawn from her fixed deposit amounts in the three banks, learned counsel for the appellant contends that the total amount would come to about Rs. 6, 00, 000 or Rs. 7, 00, 000 and would satisfactorily account for the large amount of cash in her hands. The Tribunal pointed out that the appellant had to disburse legacies worth Rs. 2, 50, 000 under the will left by her husband. The Tribunal opined that these disbursements must have been spread over quite a long period. The complaint of learned counsel for the appellant is that there is no evidence that the disbursements were spread over a long period and the finding of the Tribunal was based on a mere surmise. Hisfurther contention is that if the total amount of withdrawals from the businesses and the fixed deposit accounts were taken into consideration, the appellant would still be left with a large sum of money in her handsLearned counsel for the appellant has also made a grievance of the fact that in calculating the withdrawals made by the appellant from her, businesses, ther had first excluded withdrawals on account of household expenses,c ; but later on he said that a portion of the cash withdrawals together with the income from properties and the cash left by the appellants husband must have gone to pay the legacies, household expenses, etc.This again is said to be based on surmise rather than on any evidence on record5. We do not think that it is necessary or advisable to consider in detail the various contentions urged on behalf of the appellant. These contentions will require a detailed consideration when the questions of law which arise out of the Tribunals order will fall for decision. It is sufficient for us to say at this stage that the three questions which the appellant has raised and to which we have made a reference earlier in this judgment are questions of law which do arise out of the Tribunals order dated May 6, 1959. In coming to this conclusion we have kept in mind the observations made by this court in Omar Salay Mahomed Sait v. Commissioner ofand Homi Jehangir Gheesta v. Commissioner ofWe have read the order of the Tribunal as a whole and we are not unmindful of the observation made in the case of Homi Jehangir Gheesta that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. We may perhaps add that what we have said in this judgment is meant only to show that certain questions of law arise out of the Tribunals order and the High Court was wrong in summarily rejecting the application for a reference. As to how the questions of law should be answered will be a matter for the High Court to decide when on the statement of the case filed by the Tribunal the reference is dealt with by itFor the reasons given above we allow this appeal and set aside the order of the High Court dated March 27, 1961, by which it summarily rejected the application for a reference under section 66 of the Act. | 1 | 3,194 | 1,207 | ### 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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"We are of the view that learned counsel for the appellant has prima facie given good grounds for his contention that the finding of the Tribunal as to the sum of Rs. 1, 38, 000 is based on no evidence rather it is based on conjecture and surmise, and, furthermore, is vitiated by a failure to take into consideration several crucial matters bearing on the question4. We may first point out that the Tribunal has given no reasons of its own for making a distinction between the sum of Rs. 1, 00, 000 and the sum of Rs. 1, 38, 000 out of the sum of Rs. 2, 38, 000 received by the encashment of 238 high denomination currency notes. Assuming that the Tribunal adopted whatever reasons the Income-tax Officer had given in his assessment order, it prima facie appears to us that with regard to the sum of Rs. 1, 38, 000 the Income-tax Officer has not referred to any particular materials on which he made a distinction between Rs. 1, 38, 000 and Rs. 1, 00, 000. The Tribunal did indeed refer to the withdrawals which the appellant made from her fixed deposit amounts in the three banks, the withdrawals amounting to about Rs. 4, 00, 220 early in 1942. The Tribunal then pointed out that the appellant invested Rs. 2, 53, 980 in September, 1942, in municipal bonds and Rs. 70, 000 in shares in 1943. This was followed by a further investment in 1945 in the municipal debentures. This left a sum of a little over Rs. 76, 000 with the appellant. The Tribunal referred to a further investment in municipal debentures of about Rs. 20, 000. But the Tribunal did not consider the case of the appellant as regards her having the entire Rs. 76, 000 and odd nor her explanation as to the source from which the municipal debentures were acquired. What, however, the Tribunal failed to consider was the withdrawals which the appellant had made in cash from the capital accounts in her different businesses from 1936-1937 to 1945-1946. The Income-tax Officer referred to these withdrawals and disposed of them on the short ground that the capital accounts were maintained more for the purpose of inter-departmental transfer of money than for her personal needs. Learned counsel for the appellant has referred us to these capital accounts and has pointed out that though transfer entries occurred in the accounts of 1936-1937 and 1937-1938, there were other entries in the books of the years 1939-1940 to 1945-1946 which showed that the appellant had withdrawn various amounts in cash from her businesses. These withdrawals do not appear to have been considered by the Tribunal at all. If these withdrawals are added to what the appellant had withdrawn from her fixed deposit amounts in the three banks, learned counsel for the appellant contends that the total amount would come to about Rs. 6, 00, 000 or Rs. 7, 00, 000 and would satisfactorily account for the large amount of cash in her hands. The Tribunal pointed out that the appellant had to disburse legacies worth Rs. 2, 50, 000 under the will left by her husband. The Tribunal opined that these disbursements must have been spread over quite a long period. The complaint of learned counsel for the appellant is that there is no evidence that the disbursements were spread over a long period and the finding of the Tribunal was based on a mere surmise. His further contention is that if the total amount of withdrawals from the businesses and the fixed deposit accounts were taken into consideration, the appellant would still be left with a large sum of money in her handsLearned counsel for the appellant has also made a grievance of the fact that in calculating the withdrawals made by the appellant from her, businesses, the Income-tax Officer had first excluded withdrawals on account of household expenses, income-tax, etc ; but later on he said that a portion of the cash withdrawals together with the income from properties and the cash left by the appellants husband must have gone to pay the legacies, household expenses, etc. This again is said to be based on surmise rather than on any evidence on record5. We do not think that it is necessary or advisable to consider in detail the various contentions urged on behalf of the appellant. These contentions will require a detailed consideration when the questions of law which arise out of the Tribunals order will fall for decision. It is sufficient for us to say at this stage that the three questions which the appellant has raised and to which we have made a reference earlier in this judgment are questions of law which do arise out of the Tribunals order dated May 6, 1959. In coming to this conclusion we have kept in mind the observations made by this court in Omar Salay Mahomed Sait v. Commissioner of Income-tax, and Homi Jehangir Gheesta v. Commissioner of Income-tax. We have read the order of the Tribunal as a whole and we are not unmindful of the observation made in the case of Homi Jehangir Gheesta that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. We may perhaps add that what we have said in this judgment is meant only to show that certain questions of law arise out of the Tribunals order and the High Court was wrong in summarily rejecting the application for a reference. As to how the questions of law should be answered will be a matter for the High Court to decide when on the statement of the case filed by the Tribunal the reference is dealt with by itFor the reasons given above we allow this appeal and set aside the order of the High Court dated March 27, 1961, by which it summarily rejected the application for a reference under section 66 of the Act.
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in law when there is no evidence to support it or if it is perverse or has been reached without due consideration of the several matters relevant for such a determinationLearned counsel for the appellant has argued that the present case comes under the second category aforesaid and the High Court was wrong in summarily rejecting the application for a reference. We do not think that the assessment order in all its particulars can be said to come under the rule of "no evidence in support of the finding." Neither does learned counsel for the appellant so contend.We may first point out that the Tribunal has given no reasons of its own for making a distinction between the sum of Rs. 1, 00, 000 and the sum of Rs. 1, 38, 000 out of the sum of Rs. 2, 38, 000 received by the encashment of 238 high denomination currency notes. Assuming that the Tribunal adopted whatever reasons theOfficer had given in his assessment order, it prima facie appears to us that with regard to the sum of Rs. 1, 38, 000 theOfficer has not referred to any particular materials on which he made a distinction between Rs. 1, 38, 000 and Rs. 1, 00, 000. The Tribunal did indeed refer to the withdrawals which the appellant made from her fixed deposit amounts in the three banks, the withdrawals amounting to about Rs. 4, 00, 220 early in 1942. The Tribunal then pointed out that the appellant invested Rs. 2, 53, 980 in September, 1942, in municipal bonds and Rs. 70, 000 in shares in 1943. This was followed by a further investment in 1945 in the municipal debentures. This left a sum of a little over Rs. 76, 000 with the appellant. The Tribunal referred to a further investment in municipal debentures of about Rs. 20, 000. But the Tribunal did not consider the case of the appellant as regards her having the entire Rs. 76, 000 and odd nor her explanation as to the source from which the municipal debentures were acquired. What, however, the Tribunal failed to consider was the withdrawals which the appellant had made in cash from the capital accounts in her different businesses from6. TheOfficer referred to these withdrawals and disposed of them on the short ground that the capital accounts were maintained more for the purpose oftransfer of money than for her personalcounsel for the appellant has referred us to these capital accounts and has pointed out that though transfer entries occurred in the accounts of8, there were other entries in the books of the years46 which showed that the appellant had withdrawn various amounts in cash from herbusinesses. These withdrawals do not appear to have been considered by the Tribunal at all. If these withdrawals are added to what the appellant had withdrawn from her fixed deposit amounts in the three banks, learned counsel for the appellant contends that the total amount would come to about Rs. 6, 00, 000 or Rs. 7, 00, 000 and would satisfactorily account for the large amount of cash in her hands. The Tribunal pointed out that the appellant had to disburse legacies worth Rs. 2, 50, 000 under the will left by her husband. The Tribunal opined that these disbursements must have been spread over quite a long period. The complaint of learned counsel for the appellant is that there is no evidence that the disbursements were spread over a long period and the finding of the Tribunal was based on a mere surmise. Hisfurther contention is that if the total amount of withdrawals from the businesses and the fixed deposit accounts were taken into consideration, the appellant would still be left with a large sum of money in her handsLearned counsel for the appellant has also made a grievance of the fact that in calculating the withdrawals made by the appellant from her, businesses, ther had first excluded withdrawals on account of household expenses,c ; but later on he said that a portion of the cash withdrawals together with the income from properties and the cash left by the appellants husband must have gone to pay the legacies, household expenses, etc.This again is said to be based on surmise rather than on any evidence on record5. We do not think that it is necessary or advisable to consider in detail the various contentions urged on behalf of the appellant. These contentions will require a detailed consideration when the questions of law which arise out of the Tribunals order will fall for decision. It is sufficient for us to say at this stage that the three questions which the appellant has raised and to which we have made a reference earlier in this judgment are questions of law which do arise out of the Tribunals order dated May 6, 1959. In coming to this conclusion we have kept in mind the observations made by this court in Omar Salay Mahomed Sait v. Commissioner ofand Homi Jehangir Gheesta v. Commissioner ofWe have read the order of the Tribunal as a whole and we are not unmindful of the observation made in the case of Homi Jehangir Gheesta that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. We may perhaps add that what we have said in this judgment is meant only to show that certain questions of law arise out of the Tribunals order and the High Court was wrong in summarily rejecting the application for a reference. As to how the questions of law should be answered will be a matter for the High Court to decide when on the statement of the case filed by the Tribunal the reference is dealt with by itFor the reasons given above we allow this appeal and set aside the order of the High Court dated March 27, 1961, by which it summarily rejected the application for a reference under section 66 of the Act.
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Bharat Heavy Electrical Limited Etc Vs. Union of India and Others Etc | Central Sales Tax is also included in those invoices. The certificates and details regarding payment of C.S.T. fro m time to time by Trichy unit in regard to the despatches from Hyderabad are also filed." * 14. The High Court has also referred to another contract entered into by BHEL with NTPC for setting up a super-thermal power project at Farakka, West Bengal. In the case of this work, it appears that no one unit of BHEL is designated as the executing unit. The manufacture of machinery etc. appears to have been distributed among various units. The factual position in t his behalf is stated in the following words by the Court: "...... allocation of responsibility was in the nature of an internal arrangement made by the Head Office of the petitioner. But, the reasonable presumption that should be drawn in the light of correspondence and despatch documents, that NTPC must be well aware of the division of responsibility as regards S.G. and T.G. packages between the various units. The documents relating to despatch of Boiler/Steam Generator equipment such as Bowl Mills by Hyderabad unit as per the request of the Trichy Unit are filed. They include loading adviced packing list, d ebit note raised by the Hyderabad unit on Trichy unit and the invoice raised by Trichy unit on NTPC which covers the components/equipment sent by Hyderabad unit directly to Farakka. The name of the consignee as per the Railway Receipt is Chief Erection Manager, NTPC, Farakka and the freight is pre-paid. The certificate regarding payment of CST confirms the payment of CST on the invoice value by the Trichy unit in respect of the components despatched by Hyderabad unit." * 15. Coming hack. to the findings recorded by the Andhra Pradesh Tribunals it held, so far as the parts and components sent to Tiruchi that they do not constitute inter-State sales inasmuch as there was an interruption of the movement of the said parts/components and more particularly because the said parts/components lost their identity by incorporation into the main system before they were despatched by the executing unit to the work-site. This part of the Tribunals Order has become finals not having been questioned by the State of Andhra Pradesh. So far as the parts/components sent by the Hyderabad unit directly to the work-site at Angul or for that matter, to Farakka in West Bengal are concerned the Tribunal has taken the view that they do not constitute inter-State sales and that Central Rules Tax is leviable thereon in the State of Andhra Pradesh. This conclusio n of the Tribunal has been affirmed by the High Courts though on a some what different reasoning. The contention urged by Sri V.R.Reddy, learned Additional Solicitor General appearing for BHEL, is that even the direct despatches [i.e. p arts/components/material sent by the Hyderabad unit directly to work-site at Angul] do not constitute inter-State sales and that they are not taxable in the State of Andhra Pradesh. His submission is that in principle, there is no difference between the material sent to Tiruchi for being incorporated and the material sent directly to Angul because both of them get ultimately incorporated into the main equipment/boiler system which was being manufactured by the Tiruchi unit, which happened to be the executing unit for the Angul project. be find it difficult to agree with the learned Additional Solicitor General in the light of the factual position set out hereinabove. The parts/components, i.e., the goods in question, did move from the State of Andhra Pradesh to the State of Orissa - or West Bengal, as the case may be and the said movement is occasioned by the supply contract entered into by BHEL which is in truth a contract of sale. The manner in which and the documentation under which these goods were sent to Angul - in particular, Clause 3.3.0 of the Supply Contract do clearly establish that it was not a case of branch transfer but one of sale of the said goods to NALCO, pursuant t o the supply contract.Further, because the movement of the said goods has commenced in the State of Andhra Pradesh, it is in the State of Andhra Pradesh that the Central Sales Tax is leviable according to Section 9(1) of the Act. We the refore, agree with the view taken by the Andhra Pradesh High Court that in the facts and circumstances concerning NALCO and NTPC [Farakka] contracts and the terms thereof, the direct despatch of goods by the Hyderabad unit to Angul or Farakka constitutes an inter-State sale with in the leaning of Section 3(a) and that tax thereon is leviable in the State of Andhra Pradesh according to Section 9(1) of the Act.16. The Andhra Pradesh Tribunal and High Court have stated that there are as many as forty eight contracts during the relevant assessment years and that though the contracts and other documents relating to these contracts have not been filed or have not been filed in full, the parties before them did not dispute that "the salient features of the contracts and the pattern of transactions ...are substantially similar to the two contracts, i.e., NALCO and NTPC contracts." The correctness of this statement has not been challenged by either party before us.17. So far as Civil Appeals Nos.5362-68 of 1996 are concerned, the issues raised therein are identical to the issues raised in Civil Appeals Nos.5369-75 of 1996 except the direction asked for by BHEL far adjustment of tax amounts between the concerned States in such a manner that appropriate tax is collected in the State wherein it is lawfully leviable and the State which is not entitled to collect the tax but has yet collected it unlawfully, refunds the same to BHEL o r sends it to the State wherein it is lawfully due and payable. We see no valid objection to making such a direction. In fact, such a direction was made by this Court in K.G. Khosla and Company Limited [supra]. | 0[ds]3. Article 269 specifies the duties and taxes levied and collected by the Government of India but assigned to the States in the manner provided therein.Clause (2) of Article 269 inter alia provides that "the net proceeds in any financial year of any such duty or tax...shall be assigned to the State within which that tax duty or tax is laviable in that year". It is, therefore, extremely important, from the States point of view, in which State is the Central Sales Tax leviablefor it is to that State that the tax so collected ultimately goes back, not with standing the fact that the tax is levied and collected by the CentralCentral Sales Tax Act has not created a machinery of its own to assess and collect the tax levied by it. It has entrusted the job in each State to the machinery created by the State Sales Tax enactment [Section 9(2)]. The Central Sales Tax leviable in that State will be collected by that machinery no doubt for and on behalf of the Central Government, which will, of Course, make it over to that State as contemplated by Article 269. The provision in the Central Sales Tax Act giving effect to the said provision in Article 269(2) of the Constitution is(1) of Section 9, as it stands now.It is thus clear that as originally enacted it was clause (a) in Section 2 and in particular, the Explanation appended thereto which specified the State in which the duty or tax was leviable within the meaning of Article 269(2). By Central Sales Tax (Second Amendment) Act, 1958, the Explanation to clause (a) in Section 2 was omitted with effect from October 1, 1958 and simultaneously Section 9 was substituted.Then again by Central Sales Tax (Amendment) Act, 1969, Section 9 was substituted with retrospective effect. It is this substituted Section 9 which is in force now. Subsection (1) of Section 9 as it stands now has already been set out by us hereinabove. Thus, notwithstanding the legislative changes, the idea has remained the same, viz., that the State from which the goods have moved by reason of the sale is the State in which the Central Sales Tax is leviable, within the meaning of Article 269(2). We must make it clear that what we have said with respect to Section 9 is in the context of clause (a) of Section 3 of the Act which alone falls for consideration in these appeals.Whether a particular sale is aninter-State sale oran inter-State sale isessentially a question offact. Perhaps, it may be more appropriative to say that it is a mixed question of face andfind it difficult to agree with the learned Additional Solicitor General in the light of the factual position set out hereinabove. The parts/components, i.e., the goods in question, did move from the State of Andhra Pradesh to the State of Orissa - or West Bengal, as the case may be and the said movement is occasioned by the supply contract entered into by BHEL which is in truth a contract of sale. The manner in which and the documentation under which these goods were sent to Angul - in particular, Clause 3.3.0 of the Supply Contract do clearly establish that it was not a case of branch transfer but one of sale of the said goods to NALCO, pursuant t o the supply contract.Further, because the movement of the said goods has commenced in the State of Andhra Pradesh, it is in the State of Andhra Pradesh that the Central Sales Tax is leviable according to Section 9(1) of the Act. We the refore, agree with the view taken by the Andhra Pradesh High Court that in the facts and circumstances concerning NALCO and NTPC [Farakka] contracts and the terms thereof, the direct despatch of goods by the Hyderabad unit to Angul or Farakka constitutes an inter-State sale with in the leaning of Section 3(a) and that tax thereon is leviable in the State of Andhra Pradesh according to Section 9(1) of the Act.16. The Andhra Pradesh Tribunal and High Court have stated that there are as many as forty eight contracts during the relevant assessment years and that though the contracts and other documents relating to these contracts have not been filed or have not been filed in full, the parties before them did not dispute that "the salient features of the contracts and the pattern of transactions ...are substantially similar to the two contracts, i.e., NALCO and NTPC contracts." The correctness of this statement has not been challenged by either party before us.17. So far as Civil Appeals Nos.5362-68 of 1996 are concerned, the issues raised therein are identical to the issues raised in Civil Appeals Nos.5369-75 of 1996 except the direction asked for by BHEL far adjustment of tax amounts between the concerned States in such a manner that appropriate tax is collected in the State wherein it is lawfully leviable and the State which is not entitled to collect the tax but has yet collected it unlawfully, refunds the same to BHEL o r sends it to the State wherein it is lawfully due and payable. We see no valid objection to making such a direction. In fact, such a direction was made by this Court in K.G. Khosla and Company Limited [supra].We find it difficult to appreciate the reasoning and approach of the Tribunal. The first and main ground upon which it has been held that it is notan inter-State sale isthat the goods sent [by rail or road] do not answer the description of the goods mentioned in the annexure to the LOI/supply contract. Obviously, the annexure mentions only the major items of machinery and equipment. These major items cannot be transported as such; transport has to be effected in sections and parts and assembled at the spot. For that reason, it cannot be said that the goods transported are not the goods agreed to be supplied. It is nobodys case that BHEL supplied some other goods than the goods agreed upon. Having thus erroneously excluded Section 3 of the Central Sales Tax Act, the Tribunal went to Section 4 and held that in the circumstances, the sales must be held to have taken place inside the State of Orissa. The discussion about endorsement of goods by NALCO to BHEL in Orissa and so on is rather ambiguous. Indeed, we need not pur sue this discussion further for the reason that both Sri Mohanty and Sri V.A.Mohta, appearing for the State of Orissa, stated frankly that they cannot support the reasoning of the Tribunal.There can be no dispute about the proposition that the question whether a particular sale is an inter-Statesale or anintra-State sale isessentially a question offact. It must be said, at the same time, that it is not a pure question of fact inasmuch as the fact of a given case have to be examined in the light of the provisions contained in Section 3 of the Central Sales Tax Act. The main reason for entertaining the present appeals under Article 136 of the Constitution is the grievance of BHEL that the same transaction of sale is being subjected not only to Central Sales Tax more than one State that the Orissa State is treating the very same transaction of sale as an intras-State sale and levying the Orissa State Sales Tax thereon. The grievance cannot be said to be not justified. The dispute is not only between BHEL and the States, it is also, in a sense, a dispute between the States interse. | 0 | 7,113 | 1,406 | ### 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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Central Sales Tax is also included in those invoices. The certificates and details regarding payment of C.S.T. fro m time to time by Trichy unit in regard to the despatches from Hyderabad are also filed." * 14. The High Court has also referred to another contract entered into by BHEL with NTPC for setting up a super-thermal power project at Farakka, West Bengal. In the case of this work, it appears that no one unit of BHEL is designated as the executing unit. The manufacture of machinery etc. appears to have been distributed among various units. The factual position in t his behalf is stated in the following words by the Court: "...... allocation of responsibility was in the nature of an internal arrangement made by the Head Office of the petitioner. But, the reasonable presumption that should be drawn in the light of correspondence and despatch documents, that NTPC must be well aware of the division of responsibility as regards S.G. and T.G. packages between the various units. The documents relating to despatch of Boiler/Steam Generator equipment such as Bowl Mills by Hyderabad unit as per the request of the Trichy Unit are filed. They include loading adviced packing list, d ebit note raised by the Hyderabad unit on Trichy unit and the invoice raised by Trichy unit on NTPC which covers the components/equipment sent by Hyderabad unit directly to Farakka. The name of the consignee as per the Railway Receipt is Chief Erection Manager, NTPC, Farakka and the freight is pre-paid. The certificate regarding payment of CST confirms the payment of CST on the invoice value by the Trichy unit in respect of the components despatched by Hyderabad unit." * 15. Coming hack. to the findings recorded by the Andhra Pradesh Tribunals it held, so far as the parts and components sent to Tiruchi that they do not constitute inter-State sales inasmuch as there was an interruption of the movement of the said parts/components and more particularly because the said parts/components lost their identity by incorporation into the main system before they were despatched by the executing unit to the work-site. This part of the Tribunals Order has become finals not having been questioned by the State of Andhra Pradesh. So far as the parts/components sent by the Hyderabad unit directly to the work-site at Angul or for that matter, to Farakka in West Bengal are concerned the Tribunal has taken the view that they do not constitute inter-State sales and that Central Rules Tax is leviable thereon in the State of Andhra Pradesh. This conclusio n of the Tribunal has been affirmed by the High Courts though on a some what different reasoning. The contention urged by Sri V.R.Reddy, learned Additional Solicitor General appearing for BHEL, is that even the direct despatches [i.e. p arts/components/material sent by the Hyderabad unit directly to work-site at Angul] do not constitute inter-State sales and that they are not taxable in the State of Andhra Pradesh. His submission is that in principle, there is no difference between the material sent to Tiruchi for being incorporated and the material sent directly to Angul because both of them get ultimately incorporated into the main equipment/boiler system which was being manufactured by the Tiruchi unit, which happened to be the executing unit for the Angul project. be find it difficult to agree with the learned Additional Solicitor General in the light of the factual position set out hereinabove. The parts/components, i.e., the goods in question, did move from the State of Andhra Pradesh to the State of Orissa - or West Bengal, as the case may be and the said movement is occasioned by the supply contract entered into by BHEL which is in truth a contract of sale. The manner in which and the documentation under which these goods were sent to Angul - in particular, Clause 3.3.0 of the Supply Contract do clearly establish that it was not a case of branch transfer but one of sale of the said goods to NALCO, pursuant t o the supply contract.Further, because the movement of the said goods has commenced in the State of Andhra Pradesh, it is in the State of Andhra Pradesh that the Central Sales Tax is leviable according to Section 9(1) of the Act. We the refore, agree with the view taken by the Andhra Pradesh High Court that in the facts and circumstances concerning NALCO and NTPC [Farakka] contracts and the terms thereof, the direct despatch of goods by the Hyderabad unit to Angul or Farakka constitutes an inter-State sale with in the leaning of Section 3(a) and that tax thereon is leviable in the State of Andhra Pradesh according to Section 9(1) of the Act.16. The Andhra Pradesh Tribunal and High Court have stated that there are as many as forty eight contracts during the relevant assessment years and that though the contracts and other documents relating to these contracts have not been filed or have not been filed in full, the parties before them did not dispute that "the salient features of the contracts and the pattern of transactions ...are substantially similar to the two contracts, i.e., NALCO and NTPC contracts." The correctness of this statement has not been challenged by either party before us.17. So far as Civil Appeals Nos.5362-68 of 1996 are concerned, the issues raised therein are identical to the issues raised in Civil Appeals Nos.5369-75 of 1996 except the direction asked for by BHEL far adjustment of tax amounts between the concerned States in such a manner that appropriate tax is collected in the State wherein it is lawfully leviable and the State which is not entitled to collect the tax but has yet collected it unlawfully, refunds the same to BHEL o r sends it to the State wherein it is lawfully due and payable. We see no valid objection to making such a direction. In fact, such a direction was made by this Court in K.G. Khosla and Company Limited [supra].
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Tax (Second Amendment) Act, 1958, the Explanation to clause (a) in Section 2 was omitted with effect from October 1, 1958 and simultaneously Section 9 was substituted.Then again by Central Sales Tax (Amendment) Act, 1969, Section 9 was substituted with retrospective effect. It is this substituted Section 9 which is in force now. Subsection (1) of Section 9 as it stands now has already been set out by us hereinabove. Thus, notwithstanding the legislative changes, the idea has remained the same, viz., that the State from which the goods have moved by reason of the sale is the State in which the Central Sales Tax is leviable, within the meaning of Article 269(2). We must make it clear that what we have said with respect to Section 9 is in the context of clause (a) of Section 3 of the Act which alone falls for consideration in these appeals.Whether a particular sale is aninter-State sale oran inter-State sale isessentially a question offact. Perhaps, it may be more appropriative to say that it is a mixed question of face andfind it difficult to agree with the learned Additional Solicitor General in the light of the factual position set out hereinabove. The parts/components, i.e., the goods in question, did move from the State of Andhra Pradesh to the State of Orissa - or West Bengal, as the case may be and the said movement is occasioned by the supply contract entered into by BHEL which is in truth a contract of sale. The manner in which and the documentation under which these goods were sent to Angul - in particular, Clause 3.3.0 of the Supply Contract do clearly establish that it was not a case of branch transfer but one of sale of the said goods to NALCO, pursuant t o the supply contract.Further, because the movement of the said goods has commenced in the State of Andhra Pradesh, it is in the State of Andhra Pradesh that the Central Sales Tax is leviable according to Section 9(1) of the Act. We the refore, agree with the view taken by the Andhra Pradesh High Court that in the facts and circumstances concerning NALCO and NTPC [Farakka] contracts and the terms thereof, the direct despatch of goods by the Hyderabad unit to Angul or Farakka constitutes an inter-State sale with in the leaning of Section 3(a) and that tax thereon is leviable in the State of Andhra Pradesh according to Section 9(1) of the Act.16. The Andhra Pradesh Tribunal and High Court have stated that there are as many as forty eight contracts during the relevant assessment years and that though the contracts and other documents relating to these contracts have not been filed or have not been filed in full, the parties before them did not dispute that "the salient features of the contracts and the pattern of transactions ...are substantially similar to the two contracts, i.e., NALCO and NTPC contracts." The correctness of this statement has not been challenged by either party before us.17. So far as Civil Appeals Nos.5362-68 of 1996 are concerned, the issues raised therein are identical to the issues raised in Civil Appeals Nos.5369-75 of 1996 except the direction asked for by BHEL far adjustment of tax amounts between the concerned States in such a manner that appropriate tax is collected in the State wherein it is lawfully leviable and the State which is not entitled to collect the tax but has yet collected it unlawfully, refunds the same to BHEL o r sends it to the State wherein it is lawfully due and payable. We see no valid objection to making such a direction. In fact, such a direction was made by this Court in K.G. Khosla and Company Limited [supra].We find it difficult to appreciate the reasoning and approach of the Tribunal. The first and main ground upon which it has been held that it is notan inter-State sale isthat the goods sent [by rail or road] do not answer the description of the goods mentioned in the annexure to the LOI/supply contract. Obviously, the annexure mentions only the major items of machinery and equipment. These major items cannot be transported as such; transport has to be effected in sections and parts and assembled at the spot. For that reason, it cannot be said that the goods transported are not the goods agreed to be supplied. It is nobodys case that BHEL supplied some other goods than the goods agreed upon. Having thus erroneously excluded Section 3 of the Central Sales Tax Act, the Tribunal went to Section 4 and held that in the circumstances, the sales must be held to have taken place inside the State of Orissa. The discussion about endorsement of goods by NALCO to BHEL in Orissa and so on is rather ambiguous. Indeed, we need not pur sue this discussion further for the reason that both Sri Mohanty and Sri V.A.Mohta, appearing for the State of Orissa, stated frankly that they cannot support the reasoning of the Tribunal.There can be no dispute about the proposition that the question whether a particular sale is an inter-Statesale or anintra-State sale isessentially a question offact. It must be said, at the same time, that it is not a pure question of fact inasmuch as the fact of a given case have to be examined in the light of the provisions contained in Section 3 of the Central Sales Tax Act. The main reason for entertaining the present appeals under Article 136 of the Constitution is the grievance of BHEL that the same transaction of sale is being subjected not only to Central Sales Tax more than one State that the Orissa State is treating the very same transaction of sale as an intras-State sale and levying the Orissa State Sales Tax thereon. The grievance cannot be said to be not justified. The dispute is not only between BHEL and the States, it is also, in a sense, a dispute between the States interse.
|
Ram Kishore Sen And Others Vs. Union Of India And Others | of India Act, 1935, were immediately before such commencement being administered as if they formed part of West Bengal.25. Let us now refer to S. 290A of the Government of India Act, 1935. The said section reads thus:-"Administration of certain Acceding States as a Chief Commissioners Province or as part of a Governors or Chief Commissioners Province :-(1) Where full and exclusive authority, jurisdiction and powers for and in relation to governance of any Indian State or any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct -(a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioners Province; or(b) that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governors or a Chief Commissioners Province specified in the Order."26. It will be noticed that the significant and material words with which we are concerned have been used in clause (a) and (b) of S. 290A and have been reproduced in the relevant clause of the First Schedule to the Constitution. It is well known that at the relevant time, merge, of States was taking place on a large scale and the covenants which were being executed in that behalf conformed to the same pattern. The Order No. S. O. 25 made by the Governor-General on July 27, 1949 and published for general information provided by clause 3 that as from the appointed day, the States specified in each of the Schedules shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule. The effect of this clause was that when any territory merged with a neighbouring State, it came to be administered as if it was a part of the said State. That is the purport of the relevant clause of the covenants signed on the occasion of such mergers. In fact, a similar clause was included in the State Merger (West Bengal) Order, 1949.27. In view of this Constitutional background, the words "as if" have a special significance. They refer to territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements. Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal. Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry. The physical fact of administering the said area was not referable to any merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been. In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chillahati was not transferred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 in Schedule I. The West Bengal Government knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself. That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs to Pakistan under the Radcliffe Award.28. Mr. Dutt, who followed Mr. Mukerjee, attempted to argue that the village of Chilahati has become a part of West Bengal and as such, a part of the Union of India because of adverse possession. He contends that ever since the Radcliffe Award was made and implemented, the possession of West Bengal in respect of this area is adverse; and he argues that by adverse possession, Pakistans title to this area has been lost. We do not think it is open to the appellants to raise this contention. It has been fairly conceded by Mr. Dutt that no such plea had been raised in the writ petition filed by the appellants. Besides, it is plain that neither the Union of India, nor the State of West Bengal which are impleaded to the present proceedings make such a claim. It would indeed be surprising that even though the Union of India and the State of West Bengal expressly say that this area belongs to Pakistan under the Radeliffe Award and has to be delivered over to Pakistan, the petitioners should intervene and contend that Pakistans title to this property has been lost because West Bengal had been adversely in possession of it. It is therefore, unnecessary to examine the point whether a plea of this kind can be made under International Law and if yes, whether it is sustained by any evidence on the record.29. | 0[ds]The map in question clearly does not fall under the latter category of maps; and so, before it is treated as relevant, it must be shown that it was generally offered for public sale. Since the learned Judge has rejected the statement of Mr. Gupta on this point, this requirement is not satisfied. We see no reason why view taken by the learned Judge in regard to the credibility of Mr. Guptas affidavit should be reversed. So, it follows that without proof of the fact that the maps of the kind produced by the appellants were generally offered for public sale, Ex. A-1 would be irrelevant.It is true that S. 83 of the Evidence Act provides that the Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of maps which satisfy the requirements prescribed by the first part of S. 83.Exhibit A-1 obviously does not fall under the category of the said maps, and so, there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons, for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukerjee has given us no satisfactory reasons for differing from the said conclusion.It is true that the appellants contended before the learned Judge that the agreement in question requires that a geometrical point be fixed at the north eastern extremity of Debiganj and then a geometrical line be drawn in a plane tangential to that geometric point, in the direction east to west at an angle of 900 to the vertical, and this line should divide Berubari Union No. 12 into two exact equal halves. The learned Judge found no difficulty in rejecting this contention, and we are satisfied that the conclusion of the learned Judge is absolutely right.When it is said that the division will be "horizontal", starting from the north-east corner of Debiganj Thana, it is not intended that it should be made by a mathematical line in the manner suggested by the appellants. In fact, the provision does not refer to any line as such, it only indicates broadly the point from which the division has to begin - east to west, and it emphasises that in making the said division, what has to be borne in mind is the fact that the Union in question should be divided half and half. Even this division half and half cannot, in the very nature of things, be half and half in a mathematical way. The latter provision of the Agreement in relation of Cooch Behar also gives additional guidence which has to be taken into account in effecting the partition of Berubari Union No. 12. Therefore, the learned Judge was plainly right in rejecting the contention of the appellants that a straight horizontal line has to be drawn from the north-east corner of Debiganj Thana in order to effect the division of Berubari Union No. 12. So, there is no substance in the contention raised by Mr. Mukherjee before us that the learned Judge should have issued a writ or order in the nature of Mandamus prohibiting the division of Berubari Union No.contention is clearly misconceived and must be rejected. All that the relevant provision has done is to record the decision reached by the Prime Ministers of the two countries and make it effective by including it in the Constitution Amendment Act as suggested by this Court in its opinion on the Reference in respect of thisis no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj Thana, there can be no valid objection to the proposed transfer. It is common ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan and it appears that through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition which followed the Radcliffe Award. It is not surprising that in dividing territories under the Radcliffe Award, such a mistake should have occurred; but it is plain that what the respondents now propose to do is to transfer to Pakistan the area in question which really belongs to her. In our opinion, this conduct on the part of the respondents speaks for their fair and straightforward approach in this matter.In view of this Constitutional background, the words "as if" have a special significance. They refer to territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements. Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal. Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry. The physical fact of administering the said area was not referable to any merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been. In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chillahati was not transferred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 in Schedule I. The West Bengal Government knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself. That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs to Pakistan under the Radcliffeis therefore, unnecessary to examine the point whether a plea of this kind can be made under International Law and if yes, whether it is sustained by any evidence on the record. | 0 | 7,960 | 1,342 | ### 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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of India Act, 1935, were immediately before such commencement being administered as if they formed part of West Bengal.25. Let us now refer to S. 290A of the Government of India Act, 1935. The said section reads thus:-"Administration of certain Acceding States as a Chief Commissioners Province or as part of a Governors or Chief Commissioners Province :-(1) Where full and exclusive authority, jurisdiction and powers for and in relation to governance of any Indian State or any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct -(a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioners Province; or(b) that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governors or a Chief Commissioners Province specified in the Order."26. It will be noticed that the significant and material words with which we are concerned have been used in clause (a) and (b) of S. 290A and have been reproduced in the relevant clause of the First Schedule to the Constitution. It is well known that at the relevant time, merge, of States was taking place on a large scale and the covenants which were being executed in that behalf conformed to the same pattern. The Order No. S. O. 25 made by the Governor-General on July 27, 1949 and published for general information provided by clause 3 that as from the appointed day, the States specified in each of the Schedules shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule. The effect of this clause was that when any territory merged with a neighbouring State, it came to be administered as if it was a part of the said State. That is the purport of the relevant clause of the covenants signed on the occasion of such mergers. In fact, a similar clause was included in the State Merger (West Bengal) Order, 1949.27. In view of this Constitutional background, the words "as if" have a special significance. They refer to territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements. Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal. Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry. The physical fact of administering the said area was not referable to any merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been. In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chillahati was not transferred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 in Schedule I. The West Bengal Government knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself. That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs to Pakistan under the Radcliffe Award.28. Mr. Dutt, who followed Mr. Mukerjee, attempted to argue that the village of Chilahati has become a part of West Bengal and as such, a part of the Union of India because of adverse possession. He contends that ever since the Radcliffe Award was made and implemented, the possession of West Bengal in respect of this area is adverse; and he argues that by adverse possession, Pakistans title to this area has been lost. We do not think it is open to the appellants to raise this contention. It has been fairly conceded by Mr. Dutt that no such plea had been raised in the writ petition filed by the appellants. Besides, it is plain that neither the Union of India, nor the State of West Bengal which are impleaded to the present proceedings make such a claim. It would indeed be surprising that even though the Union of India and the State of West Bengal expressly say that this area belongs to Pakistan under the Radeliffe Award and has to be delivered over to Pakistan, the petitioners should intervene and contend that Pakistans title to this property has been lost because West Bengal had been adversely in possession of it. It is therefore, unnecessary to examine the point whether a plea of this kind can be made under International Law and if yes, whether it is sustained by any evidence on the record.29.
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even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukerjee has given us no satisfactory reasons for differing from the said conclusion.It is true that the appellants contended before the learned Judge that the agreement in question requires that a geometrical point be fixed at the north eastern extremity of Debiganj and then a geometrical line be drawn in a plane tangential to that geometric point, in the direction east to west at an angle of 900 to the vertical, and this line should divide Berubari Union No. 12 into two exact equal halves. The learned Judge found no difficulty in rejecting this contention, and we are satisfied that the conclusion of the learned Judge is absolutely right.When it is said that the division will be "horizontal", starting from the north-east corner of Debiganj Thana, it is not intended that it should be made by a mathematical line in the manner suggested by the appellants. In fact, the provision does not refer to any line as such, it only indicates broadly the point from which the division has to begin - east to west, and it emphasises that in making the said division, what has to be borne in mind is the fact that the Union in question should be divided half and half. Even this division half and half cannot, in the very nature of things, be half and half in a mathematical way. The latter provision of the Agreement in relation of Cooch Behar also gives additional guidence which has to be taken into account in effecting the partition of Berubari Union No. 12. Therefore, the learned Judge was plainly right in rejecting the contention of the appellants that a straight horizontal line has to be drawn from the north-east corner of Debiganj Thana in order to effect the division of Berubari Union No. 12. So, there is no substance in the contention raised by Mr. Mukherjee before us that the learned Judge should have issued a writ or order in the nature of Mandamus prohibiting the division of Berubari Union No.contention is clearly misconceived and must be rejected. All that the relevant provision has done is to record the decision reached by the Prime Ministers of the two countries and make it effective by including it in the Constitution Amendment Act as suggested by this Court in its opinion on the Reference in respect of thisis no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj Thana, there can be no valid objection to the proposed transfer. It is common ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan and it appears that through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition which followed the Radcliffe Award. It is not surprising that in dividing territories under the Radcliffe Award, such a mistake should have occurred; but it is plain that what the respondents now propose to do is to transfer to Pakistan the area in question which really belongs to her. In our opinion, this conduct on the part of the respondents speaks for their fair and straightforward approach in this matter.In view of this Constitutional background, the words "as if" have a special significance. They refer to territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements. Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal. Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry. The physical fact of administering the said area was not referable to any merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been. In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chillahati was not transferred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 in Schedule I. The West Bengal Government knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself. That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs to Pakistan under the Radcliffeis therefore, unnecessary to examine the point whether a plea of this kind can be made under International Law and if yes, whether it is sustained by any evidence on the record.
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C.A. Rajendran Vs. Union of India & Others | satisfied that reservation quotas of promotion were harmful from the point of view of efficiency of Railway Service and therefore the Government issued the memorandum dated November 8, 1963 with drawing the reservation quotas for Scheduled Castes and Scheduled Tribes Officers made in the previous Government orders. On behalf of the petitioner Mr. N. C. Chatterjee submitted the argument that the provision contained in Article 16 (4) of the Constitution was in itself a fundamental right of Scheduled Castes and Scheduled Tribes and it was not open to the Government to withdraw the benefits conferred on Scheduled Castes and Scheduled Tribes by the Government orders dated May 7, 1955 and January 4, 1957. The learned Counsel based his argument on the following observations of Subba Rao, J., as he then was, in the minority judgment of this Court in T. Devadasan v. Union of India, 1964-4 SCR 680 at p. 700 = (AIR 1964 SC 170 at p. 190)."The expression nothing in this article is a legislative device to express its intention most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article." But the majority judgment of this Court in that case took the view that Article 16 (4) was an exception and it could not be so construed as to reader nugatory or illusory the guarantee conferred by Article 16 (1). It was pointed out that though under Art. 16 (4) of the Constitution a reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes was within the competence of the State, the method evolved by the Government must be such as to strike a reasonable balance between the claims of the backward classes and claims of other employees, in order to effectuate the guarantee contained in Article 16 (1), and for this purpose each year of recruitment would have to be considered by itself. Accordingly, the Court struck down the Carry forward rule" on the ground that it contravened Articles 14, 16 and 335 of the Constitution. In any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. G. Chatterjee that Article 16 (4) confers a right on the backward classes and net merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State.Our conclusion therefore is that Article 16 (4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16 (4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case. 10. We shall next deal with the contention of the petitioner that there is discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Services and similar employees in the Central Secretariat Service. It was said that the competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955-1963. On the contrary, such examinations were held for the Central Secretariat Service and 74 employees belonging to Scheduled Castes and Scheduled Tribes secured the benefit of the provisions of reservation. In our opinion, there is no substance in this contention. The petitioner being an employee of the Railway Board is governed by the rules applicable to the officers in the Service to which he belongs.The employees of the Central Secretariat Service belong to a different class and it is not possible to adopt the argument that there is any discrimination against the petitioner and violation of the guarantee under Article 14 of the Constitution. 11. It was also contended by Mr. N. C. Chatterjee that the impugned order Annexure C, arbitrarily discriminates among Class III employees themselves and Class IV employees themselves. Under the impugned order reservation is kept for appointments for which there is direct recruitment and for a promotions made by (1) selection or (2) on the result of a competitive examination limited to departmental candidates. There is no reservation for appointments made by promotion on the basis of seniority cum-fitness.In our opinion, there is no justification for this argument as it is well established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable [See the decision of this court in Mervyn Countindo v. Collector of Customs, Bombay, (1966) 3 SCR 600 = (AIR 1967 SC 52 ) and in S. G. Jaisinghani v. Union of India, AIR 1967 SC 1427 ]. 12. A grievance was also made by Mr. N. C. Chatterjee that there is discrimination as between Classes I and II where there is no reservation and Classes III and IV where reservation has been made for Scheduled Castes and Scheduled Tribes. The respondent stated in the counter-affidavit that in Classes I and II posts a higher degree of efficiency and responsibility was required and therefore reservation was considered harmful so far as Classes I and II were concerned.In view of the requirement of efficiency in the higher echelons of Service it obvious that the classification made in the impugned order is reasonable and the argument of Mr. N. C. Chatterjee on this point must also be rejected as untenable. 13 | 1[ds]The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion.. It follows therefore that there can be a reasonable classification of the employees for the purpose of appointment and promotion. To put it differently, the equality of opportunity guaranteed by Article 16 (1) means equality as between member of the same class of employees, and not equality between members of separate, independent classesIn any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. G. Chatterjee that Article 16 (4) confers a right on the backward classes and net merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State.Our conclusion therefore is that Article 16 (4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16 (4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the caseIn our opinion, there is no substance in this contention. The petitioner being an employee of the Railway Board is governed by the rules applicable to the officers in the Service to which he belongs.The employees of the Central Secretariat Service belong to a different class and it is not possible to adopt the argument that there is any discrimination against the petitioner and violation of the guarantee under Article 14 of the ConstitutionIn our opinion, there is no justification for this argument as it is well established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonableIn view of the requirement of efficiency in the higher echelons of Service it obvious that the classification made in the impugned order is reasonable and the argument of Mr. N. C. Chatterjee on this point must also be rejected as untenable. | 1 | 5,406 | 536 | ### 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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satisfied that reservation quotas of promotion were harmful from the point of view of efficiency of Railway Service and therefore the Government issued the memorandum dated November 8, 1963 with drawing the reservation quotas for Scheduled Castes and Scheduled Tribes Officers made in the previous Government orders. On behalf of the petitioner Mr. N. C. Chatterjee submitted the argument that the provision contained in Article 16 (4) of the Constitution was in itself a fundamental right of Scheduled Castes and Scheduled Tribes and it was not open to the Government to withdraw the benefits conferred on Scheduled Castes and Scheduled Tribes by the Government orders dated May 7, 1955 and January 4, 1957. The learned Counsel based his argument on the following observations of Subba Rao, J., as he then was, in the minority judgment of this Court in T. Devadasan v. Union of India, 1964-4 SCR 680 at p. 700 = (AIR 1964 SC 170 at p. 190)."The expression nothing in this article is a legislative device to express its intention most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article." But the majority judgment of this Court in that case took the view that Article 16 (4) was an exception and it could not be so construed as to reader nugatory or illusory the guarantee conferred by Article 16 (1). It was pointed out that though under Art. 16 (4) of the Constitution a reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes was within the competence of the State, the method evolved by the Government must be such as to strike a reasonable balance between the claims of the backward classes and claims of other employees, in order to effectuate the guarantee contained in Article 16 (1), and for this purpose each year of recruitment would have to be considered by itself. Accordingly, the Court struck down the Carry forward rule" on the ground that it contravened Articles 14, 16 and 335 of the Constitution. In any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. G. Chatterjee that Article 16 (4) confers a right on the backward classes and net merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State.Our conclusion therefore is that Article 16 (4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16 (4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case. 10. We shall next deal with the contention of the petitioner that there is discrimination between the employees belonging to Scheduled Castes and Scheduled Tribes in the Railway Services and similar employees in the Central Secretariat Service. It was said that the competitive departmental examination for promotion to the grade of Section Officers was not held by the Railway Board for the years 1955-1963. On the contrary, such examinations were held for the Central Secretariat Service and 74 employees belonging to Scheduled Castes and Scheduled Tribes secured the benefit of the provisions of reservation. In our opinion, there is no substance in this contention. The petitioner being an employee of the Railway Board is governed by the rules applicable to the officers in the Service to which he belongs.The employees of the Central Secretariat Service belong to a different class and it is not possible to adopt the argument that there is any discrimination against the petitioner and violation of the guarantee under Article 14 of the Constitution. 11. It was also contended by Mr. N. C. Chatterjee that the impugned order Annexure C, arbitrarily discriminates among Class III employees themselves and Class IV employees themselves. Under the impugned order reservation is kept for appointments for which there is direct recruitment and for a promotions made by (1) selection or (2) on the result of a competitive examination limited to departmental candidates. There is no reservation for appointments made by promotion on the basis of seniority cum-fitness.In our opinion, there is no justification for this argument as it is well established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonable [See the decision of this court in Mervyn Countindo v. Collector of Customs, Bombay, (1966) 3 SCR 600 = (AIR 1967 SC 52 ) and in S. G. Jaisinghani v. Union of India, AIR 1967 SC 1427 ]. 12. A grievance was also made by Mr. N. C. Chatterjee that there is discrimination as between Classes I and II where there is no reservation and Classes III and IV where reservation has been made for Scheduled Castes and Scheduled Tribes. The respondent stated in the counter-affidavit that in Classes I and II posts a higher degree of efficiency and responsibility was required and therefore reservation was considered harmful so far as Classes I and II were concerned.In view of the requirement of efficiency in the higher echelons of Service it obvious that the classification made in the impugned order is reasonable and the argument of Mr. N. C. Chatterjee on this point must also be rejected as untenable. 13
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The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion.. It follows therefore that there can be a reasonable classification of the employees for the purpose of appointment and promotion. To put it differently, the equality of opportunity guaranteed by Article 16 (1) means equality as between member of the same class of employees, and not equality between members of separate, independent classesIn any case, even the minority judgment of Subba Rao, J. does not support the contention of Mr. N. G. Chatterjee that Article 16 (4) confers a right on the backward classes and net merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State.Our conclusion therefore is that Article 16 (4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words Article 16 (4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the caseIn our opinion, there is no substance in this contention. The petitioner being an employee of the Railway Board is governed by the rules applicable to the officers in the Service to which he belongs.The employees of the Central Secretariat Service belong to a different class and it is not possible to adopt the argument that there is any discrimination against the petitioner and violation of the guarantee under Article 14 of the ConstitutionIn our opinion, there is no justification for this argument as it is well established that there can be a reasonable classification of employees for the purpose of appointment by promotion and the classification as between direct recruits and promotees is reasonableIn view of the requirement of efficiency in the higher echelons of Service it obvious that the classification made in the impugned order is reasonable and the argument of Mr. N. C. Chatterjee on this point must also be rejected as untenable.
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State of West Bengal and Another Vs. Arun Kumar Basu and Another | therein, to which the declaration of vesting applies and which were made in favour of intermediaries shall stand dismissed and ceased by operation of Section 51)(b) of the Act. Section 6 postulates by a non obstante clause that notwithstanding any thing contained in Sections 4 and 5 an intermediary shall, except in the cases mentioned in the proviso to sub section (2) but subject to the other provisions of that sub- section, be entitled to retain with effect from the date of vesting", various of lands like homestead etc. enumerated therein including tank fisheries means " a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or fishing, together with the sub-soil and the banks of such reservoir or place, except such portion of the banks as are included in a homestead or in a garden or orchard and includes any right of pisciculture or fishing in such reservoir or place".On the issue of notification under section 49 . Section 62 prescribed procedure to deal with raiyats and under-raiyats covered in chapter II etc. It says that the provisions in Chapter II shall with such modification as may be necessary apply mutatis to raiyats or under-raiyats (sic under-raiyats) were intermediaries and the land held by them were estates and such a person holding under a raiyat or an under-raiyat were a raiyata for the purpose of clauses (c) and (d) of Section 5, provided that, where a raiyat or an under-raiyat retains under Section 6 any land comprised in a holding, then notwithstanding anything to the contrary contained in sub-section (2) of section 6, he shall pay the rent as prescribed in clauses (a) to ( ds) thereto, Under section 5(c) every raiyat holding any land under an intermediary shall hold the same directly under the State as if the State had been the intermediary and on the same terms and conditions as immediately before the date of vesting. Thus the right, title and interest of a raiyat or under-raiyat in the lands in his possession and enjoyment are saved. By operation of law they because full owners thereof subject to the terms and conditions that may be imposed under Section 52 and payment of Jama existing on the date of notification or revised from time to time and finally entered in Record of Rights.The pre-existing rights of the intermediaries in the estate to which the declaration applied shall stand vested in the State free from all in cumbrances. Section 6 does not have the effect of divesting the State of the vested right, title and interest or the intermediary. One of the right i.e. possession held by the intermediaries is the only interest saved b Section 6 from the operation of Sections 4 and 5. T he fishery rights also stood vested.The pre-existing rights, title and interest therein, also shall stand determined as against the State and ceased. The Collector had symbolic possession under Section 10. But by us e or non obstente clause in Section 6(1) the respondent became entitled to retain khas possession of tank fisheries, and he shall hold tank fisheries directly under the state on such prescribed terms and conditions and subject to payment of such rent as may be determined under the Act from time to time as finally entered in Record of Rights." 4. As a consequences, the right title and interest held by the proprietory company within the meaning of Section 2(i) of the Act, stood vested in the State free from all encumbrances. 5. It is sought to be contended by the learned counsel for the respondent that though notice under Section 10 was issued by the Collect or for surrender of the possession, it was withdrawn and that, therefore, the vesting does not apply to the company. We find no force in the contention. Once the land stood vested in the State free from all encumbrances, by operation of Section 4(1) of the Act, the mere inaction on the part of the Collector in not taking possession of the land does not have any effect on vesting, which statutorily operated under section 4(1) of the Act. It is then contended that it being a non-agricultural land, the Act has no application. We find no force in the contention. 6. By operation of Section 6(1)(c), all non- agricultural lands including the tenancy rights, if any, under the land held by third parties stood vested in the State except to the extent of 15 acres of the land to which the company is entitled to retain title to and possession of the same. It is then contended that under Section 6(j), it being the company, the land does not vest in the State. We are unable to agree with the learned counsel. Section 6(1(j) applies only to the agricultural lands or to the business of farming. Railway company is not engaged in the business of farming. Therefore, it has no applicationIt is then contended that by operation of Section 3A of the West Bengal Land Reforms Act 1959, the non-agricultural land does not stand vested We find no force in the contention. What is vested under Section 3A of the Land Reforms Act is the tenancy rights in a non-agricultural land; and not the proprietary right. Proprietary rights having been abolished by operation of Section 4(1) of the Act Section 3A of the Land Reforms Act in this regard has no application. It is then contended that direction may be given to the State Government to pay the compensation to which the respondents are entitled to. We need not well upon that for the reason that if the respondents are entitled to any compensation under the Act and it the state is liable to pay for it, it is open to them to make necessary application. It is needless to mention that the competent authority would consider and dispose it of in accordance with law. 7. | 1[ds]Once the land stood vested in the State free from all encumbrances, by operation of Section 4(1) of the Act, the mere inaction on the part of the Collector in not taking possession of the land does not have any effect on vesting, which statutorily operated under section 4(1) of theoperation of Section 6(1)(c), all non- agricultural lands including the tenancy rights, if any, under the land held by third parties stood vested in the State except to the extent of 15 acres of the land to which the company is entitled to retain title to and possession of theare unable to agree with the learned counsel. Section 6(1(j) applies only to the agricultural lands or to the business of farming. Railway company is not engaged in the business of farming. Therefore, it has nofind no force in the contention. What is vested under Section 3A of the Land Reforms Act is the tenancy rights in a non-agricultural land; and not the proprietary right. Proprietary rights having been abolished by operation of Section 4(1) of the Act Section 3A of the Land Reforms Act in this regard has noneed not well upon that for the reason that if the respondents are entitled to any compensation under the Act and it the state is liable to pay for it, it is open to them to make necessary application. It is needless to mention that the competent authority would consider and dispose it of in accordance with law. | 1 | 1,758 | 286 | ### Instruction:
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therein, to which the declaration of vesting applies and which were made in favour of intermediaries shall stand dismissed and ceased by operation of Section 51)(b) of the Act. Section 6 postulates by a non obstante clause that notwithstanding any thing contained in Sections 4 and 5 an intermediary shall, except in the cases mentioned in the proviso to sub section (2) but subject to the other provisions of that sub- section, be entitled to retain with effect from the date of vesting", various of lands like homestead etc. enumerated therein including tank fisheries means " a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or fishing, together with the sub-soil and the banks of such reservoir or place, except such portion of the banks as are included in a homestead or in a garden or orchard and includes any right of pisciculture or fishing in such reservoir or place".On the issue of notification under section 49 . Section 62 prescribed procedure to deal with raiyats and under-raiyats covered in chapter II etc. It says that the provisions in Chapter II shall with such modification as may be necessary apply mutatis to raiyats or under-raiyats (sic under-raiyats) were intermediaries and the land held by them were estates and such a person holding under a raiyat or an under-raiyat were a raiyata for the purpose of clauses (c) and (d) of Section 5, provided that, where a raiyat or an under-raiyat retains under Section 6 any land comprised in a holding, then notwithstanding anything to the contrary contained in sub-section (2) of section 6, he shall pay the rent as prescribed in clauses (a) to ( ds) thereto, Under section 5(c) every raiyat holding any land under an intermediary shall hold the same directly under the State as if the State had been the intermediary and on the same terms and conditions as immediately before the date of vesting. Thus the right, title and interest of a raiyat or under-raiyat in the lands in his possession and enjoyment are saved. By operation of law they because full owners thereof subject to the terms and conditions that may be imposed under Section 52 and payment of Jama existing on the date of notification or revised from time to time and finally entered in Record of Rights.The pre-existing rights of the intermediaries in the estate to which the declaration applied shall stand vested in the State free from all in cumbrances. Section 6 does not have the effect of divesting the State of the vested right, title and interest or the intermediary. One of the right i.e. possession held by the intermediaries is the only interest saved b Section 6 from the operation of Sections 4 and 5. T he fishery rights also stood vested.The pre-existing rights, title and interest therein, also shall stand determined as against the State and ceased. The Collector had symbolic possession under Section 10. But by us e or non obstente clause in Section 6(1) the respondent became entitled to retain khas possession of tank fisheries, and he shall hold tank fisheries directly under the state on such prescribed terms and conditions and subject to payment of such rent as may be determined under the Act from time to time as finally entered in Record of Rights." 4. As a consequences, the right title and interest held by the proprietory company within the meaning of Section 2(i) of the Act, stood vested in the State free from all encumbrances. 5. It is sought to be contended by the learned counsel for the respondent that though notice under Section 10 was issued by the Collect or for surrender of the possession, it was withdrawn and that, therefore, the vesting does not apply to the company. We find no force in the contention. Once the land stood vested in the State free from all encumbrances, by operation of Section 4(1) of the Act, the mere inaction on the part of the Collector in not taking possession of the land does not have any effect on vesting, which statutorily operated under section 4(1) of the Act. It is then contended that it being a non-agricultural land, the Act has no application. We find no force in the contention. 6. By operation of Section 6(1)(c), all non- agricultural lands including the tenancy rights, if any, under the land held by third parties stood vested in the State except to the extent of 15 acres of the land to which the company is entitled to retain title to and possession of the same. It is then contended that under Section 6(j), it being the company, the land does not vest in the State. We are unable to agree with the learned counsel. Section 6(1(j) applies only to the agricultural lands or to the business of farming. Railway company is not engaged in the business of farming. Therefore, it has no applicationIt is then contended that by operation of Section 3A of the West Bengal Land Reforms Act 1959, the non-agricultural land does not stand vested We find no force in the contention. What is vested under Section 3A of the Land Reforms Act is the tenancy rights in a non-agricultural land; and not the proprietary right. Proprietary rights having been abolished by operation of Section 4(1) of the Act Section 3A of the Land Reforms Act in this regard has no application. It is then contended that direction may be given to the State Government to pay the compensation to which the respondents are entitled to. We need not well upon that for the reason that if the respondents are entitled to any compensation under the Act and it the state is liable to pay for it, it is open to them to make necessary application. It is needless to mention that the competent authority would consider and dispose it of in accordance with law. 7.
### Response:
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### Explanation:
Once the land stood vested in the State free from all encumbrances, by operation of Section 4(1) of the Act, the mere inaction on the part of the Collector in not taking possession of the land does not have any effect on vesting, which statutorily operated under section 4(1) of theoperation of Section 6(1)(c), all non- agricultural lands including the tenancy rights, if any, under the land held by third parties stood vested in the State except to the extent of 15 acres of the land to which the company is entitled to retain title to and possession of theare unable to agree with the learned counsel. Section 6(1(j) applies only to the agricultural lands or to the business of farming. Railway company is not engaged in the business of farming. Therefore, it has nofind no force in the contention. What is vested under Section 3A of the Land Reforms Act is the tenancy rights in a non-agricultural land; and not the proprietary right. Proprietary rights having been abolished by operation of Section 4(1) of the Act Section 3A of the Land Reforms Act in this regard has noneed not well upon that for the reason that if the respondents are entitled to any compensation under the Act and it the state is liable to pay for it, it is open to them to make necessary application. It is needless to mention that the competent authority would consider and dispose it of in accordance with law.
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NATIONAL INSURANCE COMPANY LTD Vs. MANNAT JOHAL | as indicated infra. 12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia 12.1. The aforesaid decision in Shashi Sharma has been explained and distinguished by another three-Judge Bench of this Court in Sebastiani Lakra (supra) in the following:- 10. In Shashi Sharmas case, 2016 ACJ 2723 (SC), this court was dealing with the payments made to the legal heirs of the deceased in terms of rule 5(1) of the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (for short the said Rules). Under rule 5 of the said Rules on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods set out in the Rules and after the said period the family was entitled to receive family pension. The family was also entitled to retain the Government accommodation for a period of one year in addition to payment of Rs. 25,000 as ex gratia. In this case, the three-Judge Bench adverted to the principles laid down in Helen C. Rebellos case 1999 ACJ 10 (SC), followed in Patricia Jean Mahajans case 2002 ACJ 1441 (SC), and came to the conclusion that the decision in Vimal Kanwars case 2013 ACJ 1441 (SC), did not take a view contrary to Helen C. Rebello or Patricia Jean Mahajan cases (supra). The following observations are relevant: (12) The principle expounded in this decision in Helen C. Rebellos case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the pecuniary advantage from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been re- stated in the subsequent decision of the two-Judge Bench in Patricia Jean Mahajans case, 2002 ACJ 1441 (SC), to reject the argument of the insurance company to deduct the amount receivable by the dependants of the deceased by way of social security compensation and life insurance policy. However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the head of pay and other allowances last drawn by the employee. We may note that on principle this court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan (supra), but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules. 12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary. 12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference. 13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court. | 0[ds]7. Having given anxious consideration to the rival submissions and having examined the record, we are clearly of the view that the modified award made by the High Court in this case remains that of just compensation and no case for interference is made out in either of these appeals8. It remains trite, and need not be over-emphasised, that while dealing with the question of quantification in a claim for compensation under the Motor Vehicles Act, 1988 (the Act of 1988), the endeavor has to be to ensure awarding of just compensation to the claimant/s9. In a case like the present one, relating to the death of the vehicular accident victim, any process of awarding just compensation involves assessment of such amount of pecuniary loss which could be reasonably taken as the loss of dependency suffered by the claimants due to the demise of the victim. In other words, such a process, by its very nature, involves the assessment of monetary contribution that the claimants were likely to receive from the deceased had he not met with the untimely end due to the accident. For the purpose of such an assessment, while some of the basic facts, like the age, job and income of the deceased and the number of dependents with extent of their dependency, could be reasonably ascertained from the evidence on record, yet, several uncertain factors also, per force, come into play, like the future prospects of the deceased coupled with various imponderables related with a human life. As the process, by its very nature, involves a substantial deal of guess-work, this Court, over the years, has evolved and applied several principles so as to ensure that as far as possible, the methods for assessment remain uniform, curbing against disparity in the amount of compensation to be awarded in similarly circumstanced cases. It is not necessary for the present purpose to traverse through the large number of past decisions, particularly for the reason that the basic parameters stand explained and standardised with the larger Bench decision in Pranay Sethi (supra), wherein this Court has partly modulated the parameters enunciated in the two-Judge Bench decision in Sarla Verma (supra), and has laid down the principles as follows:-3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment59.7. The age of the deceased should be the basis for applying the multiplier59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years10. Applying the principles aforesaid to the present case, we find that the award made by the Tribunal suffered from a few fundamental errors and shortcomings as regards the assessment of multiplicand. The Tribunal, instead of taking the last drawn emoluments of the deceased, chose to proceed on his enhanced projected emoluments after the expected promotion and pay revision. However, thereafter, the Tribunal did not provide for any further future prospects. The Tribunal also did not make any deduction towards the tax component. Moreover, the Tribunal deducted one-third towards personal expenses of the deceased though he had had five dependents. Then, the Tribunal applied the multiplier of 16. Apparently, the assessment made by the Tribunal could not have been countenanced, for being not in conformity with the principles in Pranay Sethi (supra)11.1. The assessment so made by the High Court stands more or less in conformity with the principles enunciated in Pranay Sethi (supra). The only doubtful area is that the High Court provided for enhancement towards future prospects only at 40% on the last drawn emoluments of the deceased and not at 50% though he was shown to be in a settled employment with future chances of promotion as also pay revision. However, on the facts and in the circumstances of the present case, we are not considering any modification in the amount awarded by the High Court for a variety of factors, as indicated infra12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court. | 0 | 5,206 | 1,553 | ### 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:
as indicated infra. 12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia 12.1. The aforesaid decision in Shashi Sharma has been explained and distinguished by another three-Judge Bench of this Court in Sebastiani Lakra (supra) in the following:- 10. In Shashi Sharmas case, 2016 ACJ 2723 (SC), this court was dealing with the payments made to the legal heirs of the deceased in terms of rule 5(1) of the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (for short the said Rules). Under rule 5 of the said Rules on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods set out in the Rules and after the said period the family was entitled to receive family pension. The family was also entitled to retain the Government accommodation for a period of one year in addition to payment of Rs. 25,000 as ex gratia. In this case, the three-Judge Bench adverted to the principles laid down in Helen C. Rebellos case 1999 ACJ 10 (SC), followed in Patricia Jean Mahajans case 2002 ACJ 1441 (SC), and came to the conclusion that the decision in Vimal Kanwars case 2013 ACJ 1441 (SC), did not take a view contrary to Helen C. Rebello or Patricia Jean Mahajan cases (supra). The following observations are relevant: (12) The principle expounded in this decision in Helen C. Rebellos case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the pecuniary advantage from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been re- stated in the subsequent decision of the two-Judge Bench in Patricia Jean Mahajans case, 2002 ACJ 1441 (SC), to reject the argument of the insurance company to deduct the amount receivable by the dependants of the deceased by way of social security compensation and life insurance policy. However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the head of pay and other allowances last drawn by the employee. We may note that on principle this court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan (supra), but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules. 12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary. 12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference. 13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.
### Response:
0
### Explanation:
age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment59.7. The age of the deceased should be the basis for applying the multiplier59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years10. Applying the principles aforesaid to the present case, we find that the award made by the Tribunal suffered from a few fundamental errors and shortcomings as regards the assessment of multiplicand. The Tribunal, instead of taking the last drawn emoluments of the deceased, chose to proceed on his enhanced projected emoluments after the expected promotion and pay revision. However, thereafter, the Tribunal did not provide for any further future prospects. The Tribunal also did not make any deduction towards the tax component. Moreover, the Tribunal deducted one-third towards personal expenses of the deceased though he had had five dependents. Then, the Tribunal applied the multiplier of 16. Apparently, the assessment made by the Tribunal could not have been countenanced, for being not in conformity with the principles in Pranay Sethi (supra)11.1. The assessment so made by the High Court stands more or less in conformity with the principles enunciated in Pranay Sethi (supra). The only doubtful area is that the High Court provided for enhancement towards future prospects only at 40% on the last drawn emoluments of the deceased and not at 50% though he was shown to be in a settled employment with future chances of promotion as also pay revision. However, on the facts and in the circumstances of the present case, we are not considering any modification in the amount awarded by the High Court for a variety of factors, as indicated infra12. Taking up the question of ex gratia payment received by the claimants from the employer of the deceased, it is noticed that an amount of Rs. 3,21,801/- was paid by the employer to the claimants, being one years gross salary of the deceased. While relying on the decision in Shashi Sharma, it is contended on behalf of the insurer that the ex gratia amount so received by the claimants is required to be deducted. Noticeable it is that in Shashi Sharmas case, a three-Judge Bench of this Court was dealing with the payment received by the legal heirs of the deceased in terms of Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (Rules of 2006) whereunder, on the death of a government employee, the family would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee for periods specified in the Rules and after the said period, the family would be entitled to receive family pension. The family would also be entitled to retain the government accommodation for a period of one year in addition to payment of Rs. 25,000/- as ex gratia12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not apply to the facts of the present case and no deduction in the amount awarded by the High Court appears necessary12.3 Apart from the above, as noticed, the High Court has even otherwise provided for enhancement towards future prospects only at 40% though the deceased was in a settled job and was not self-employed or on fixed salary. If at all an assertion is made that the assistance received by the claimants or a part of allowances received by the deceased need to be taken into consideration for making certain deductions, the enhancement by way of future prospects at 50% would be effectively setting off any such proposed deduction. In other words, in the ultimate analysis, the amount of pecuniary loss as assessed by the High Court remains reasonable and cannot be said to be either exorbitant or too low so as to call for any interference13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.
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Concord Of India Insurance Co Ltd Vs. Nirmala Devi And Ors | years in such cases is a terrible commentary on the judicial process. If only no-fault liability, automatic reporting by the police who investigate the accident in a statutory pro forma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof were introduced-easy and inexpensive if the State has the will to help the poor who mostly die in such accidents-laws delays in this compassionate jurisdiction can be banished. Social justice in action is the measure of the States constitutional sensitivity. Anyway, we have made these observations hopefully to help focus the attention of the Union and the States.4.The nationalised insurance company appealed to the High Court against the award. We have no doubt that the finding on both the culpability and the quantum as rendered by the trial court are correct. But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under s. 5 of the Limitation Act5. The Accidents Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions. The appeal had to be filed on or before January 19, 1977, but was actually filed 30 days later. Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation. He had intimated the parties accordingly with the result that the petitioner was misled into instituting the appeallate. The High Court took the view that the lawyers ignorance about the law was no ground for condonation of delay. Reliance was placed on some decisions of the Punjab High Court and there was reference also to a ruling of the Supreme Court in State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 . The conclusion was couched in these words:" The Assistant Divisional Manager of the company-appellant is not an illiterate or so ignorant person who could not calculate the period of limitation. Such like appeals are filed by such companies daily. The facts of this case clearly show, as observed earlier, that the mistake is not bona fide and the appellant has failed to show sufficient cause to condone the delay. "6. We are not able to agree with this reasoning. A company relies on its legal adviser and the managers expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for laymen or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in State of Kerala v. Krishna Kurup Madhava Kurup, AIR 1971 Ker 211 :"The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.""The High Court took the view that Mr. Raizada being an Advocate of 34 years standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under section 39(1) of the Punjab Courts Act and, therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under section 5 of the Limitation Act. The Supreme Court upset this approachI am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must, of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers. "7. We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If legal advisers opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the application of s. 5 vis-a-vis counsels mistake.8. This does not automatically secure a visa for the petitioner into this court under article 136. There must be manifest injustice or gross misappreciation or perversity in factual findings. We have examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner. He has hardly convinced us that the merits of the case call for any intervention at all. | 0[ds]We are not able to agree with this reasoning. A company relies on its legal adviser and the managers expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for laymen or if there is incomprehensible indifference the shield of legal opinion may still behave clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If legal advisers opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the application of s. 5 vis-a-vis counselsdoes not automatically secure a visa for the petitioner into this court under article 136. There must be manifest injustice or gross misappreciation or perversity in factual findings. We have examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner. He has hardly convinced us that the merits of the case call for any intervention athave no doubt that the finding on both the culpability and the quantum as rendered by the trial court are correct. But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under s. 5 of the Limitation Act | 0 | 1,497 | 306 | ### 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:
years in such cases is a terrible commentary on the judicial process. If only no-fault liability, automatic reporting by the police who investigate the accident in a statutory pro forma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof were introduced-easy and inexpensive if the State has the will to help the poor who mostly die in such accidents-laws delays in this compassionate jurisdiction can be banished. Social justice in action is the measure of the States constitutional sensitivity. Anyway, we have made these observations hopefully to help focus the attention of the Union and the States.4.The nationalised insurance company appealed to the High Court against the award. We have no doubt that the finding on both the culpability and the quantum as rendered by the trial court are correct. But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under s. 5 of the Limitation Act5. The Accidents Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions. The appeal had to be filed on or before January 19, 1977, but was actually filed 30 days later. Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation. He had intimated the parties accordingly with the result that the petitioner was misled into instituting the appeallate. The High Court took the view that the lawyers ignorance about the law was no ground for condonation of delay. Reliance was placed on some decisions of the Punjab High Court and there was reference also to a ruling of the Supreme Court in State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 . The conclusion was couched in these words:" The Assistant Divisional Manager of the company-appellant is not an illiterate or so ignorant person who could not calculate the period of limitation. Such like appeals are filed by such companies daily. The facts of this case clearly show, as observed earlier, that the mistake is not bona fide and the appellant has failed to show sufficient cause to condone the delay. "6. We are not able to agree with this reasoning. A company relies on its legal adviser and the managers expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for laymen or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in State of Kerala v. Krishna Kurup Madhava Kurup, AIR 1971 Ker 211 :"The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.""The High Court took the view that Mr. Raizada being an Advocate of 34 years standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under section 39(1) of the Punjab Courts Act and, therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under section 5 of the Limitation Act. The Supreme Court upset this approachI am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must, of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers. "7. We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If legal advisers opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the application of s. 5 vis-a-vis counsels mistake.8. This does not automatically secure a visa for the petitioner into this court under article 136. There must be manifest injustice or gross misappreciation or perversity in factual findings. We have examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner. He has hardly convinced us that the merits of the case call for any intervention at all.
### Response:
0
### Explanation:
We are not able to agree with this reasoning. A company relies on its legal adviser and the managers expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for laymen or if there is incomprehensible indifference the shield of legal opinion may still behave clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If legal advisers opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the application of s. 5 vis-a-vis counselsdoes not automatically secure a visa for the petitioner into this court under article 136. There must be manifest injustice or gross misappreciation or perversity in factual findings. We have examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner. He has hardly convinced us that the merits of the case call for any intervention athave no doubt that the finding on both the culpability and the quantum as rendered by the trial court are correct. But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under s. 5 of the Limitation Act
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Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy | marriage. In the said divorce petition, the respondent-wife filed an application for permanent alimony under Section 25 of the Act. By an order dated 19.05.2006, passed by the Additional District Judge, 1st Court, Hooghly in Matrimonial Suit No.533 of 2003, enhanced the amount of maintenance to Rs. 8,000/- per month in F.A. No. 193 of 2008. 9. On 10.10.2010, the respondent filed an amendment application before the Court being Misc. Case No.2 of 2010 in Matrimonial Suit No.533 of 2003 under Section 25(2) of the Act praying for enhancement of maintenance amounting to Rs.10,000/- per month for herself and Rs. 6,000/- for her minor son. Vide order dated 10.10.2012, the said application was allowed and maintenance at the rate of Rs.6000/- each was ordered for the respondent and her minor son. 10. Aggrieved by this order, respondent-wife preferred a revision petition under Article 227 of the Constitution of India before the High Court being C.O. No.4228 of 2012. During its pendency, the Matrimonial Suit No.193 of 2010 was decreed and the marriage between the parties came to be dissolved by the order of the Additional District Judge, 1st Fast Track Court, Serampore on 30.11.2012. Post-divorce, the appellant herein re-married and has a male child born out of the second wedlock. 11. By an order dated 02.02.2015, the High Court disposed of the above revision petition by directing the appellant-husband to pay a sum of Rs.16,000/- towards the maintenance of the respondent-wife as well as her minor son. Aggrieved by this order, the respondent-wife preferred a Special Leave Petition (C) No.12968 of 2015 which was disposed of as withdrawn with liberty to approach the High Court by way of review. Pursuant to the above order, respondent-wife filed a review application being RVW No.85 of 2016 arising out of CO NO.4228 of 2012. Upon hearing both the parties, by order dated 15.09.2016, the learned Single Judge of the High Court modified the order under review and enhanced the amount of maintenance from Rs.16,000/- to Rs.23,000/- which is the subject matter of challenge in this appeal. 12. Learned counsel for the appellant Mr. Pijush K. Roy submitted that in exercise of review jurisdiction, the High Court ought not to have enhanced the maintenance amount from Rs.16,000/- to Rs.23,000/-. It was further submitted that the appellant-husband is posted at Malda Medical College, Malda, West Bengal and gets a net salary of Rs.87,500/- per month and while so, the appellant would find it difficult to pay enhanced maintenance amount of Rs.23,000/- per month to the respondent-wife. It is also submitted that the respondent is a qualified beautician and Montessori teacher and earns Rs.30,000/- per month and the son has also attained eighteen years of age and hence the enhanced maintenance amount of Rs.23,000/- per month is on the higher side and prayed for restoring the original order of Rs.16,000/- per month. 13. Per contra, learned counsel for the respondent-wife Ms. Supriya Juneja submitted that the High Court on perusal of the pay slip and the expenditure of appellant-husband has arrived at the right conclusion of granting Rs.23,000/- as maintenance to the respondent. The learned counsel has also further submitted that even though the son has attained majority and since the son is aged only eighteen years and is presently studying in a college and for meeting the expenses of higher education and other requirements, enhanced maintenance amount of Rs.23,000/- per month is a reasonable one and the impugned order warrants no interference. 14. We have considered the rival contentions and perused the impugned judgment and other materials on record. 15. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 25. In exercising the power under Section 25 (2), the court would have regard to the change in the circumstances of the parties. There must be some change in the circumstances of either party which may have to be taken into account when an application is made under sub-section (2) of Section 25 for variation, modification or rescission of the order as the court may deem just. 16. The review petition under Order XLVII Rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant-husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129 , in this case, it was held that 25% of the husbands net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son. | 1[ds]14. We have considered the rival contentions and perused the impugned judgment and other materials on record15. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 2516. The review petition under Order XLVII Rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant-husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129 , in this case, it was held that 25% of the husbands net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son | 1 | 1,838 | 392 | ### 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:
marriage. In the said divorce petition, the respondent-wife filed an application for permanent alimony under Section 25 of the Act. By an order dated 19.05.2006, passed by the Additional District Judge, 1st Court, Hooghly in Matrimonial Suit No.533 of 2003, enhanced the amount of maintenance to Rs. 8,000/- per month in F.A. No. 193 of 2008. 9. On 10.10.2010, the respondent filed an amendment application before the Court being Misc. Case No.2 of 2010 in Matrimonial Suit No.533 of 2003 under Section 25(2) of the Act praying for enhancement of maintenance amounting to Rs.10,000/- per month for herself and Rs. 6,000/- for her minor son. Vide order dated 10.10.2012, the said application was allowed and maintenance at the rate of Rs.6000/- each was ordered for the respondent and her minor son. 10. Aggrieved by this order, respondent-wife preferred a revision petition under Article 227 of the Constitution of India before the High Court being C.O. No.4228 of 2012. During its pendency, the Matrimonial Suit No.193 of 2010 was decreed and the marriage between the parties came to be dissolved by the order of the Additional District Judge, 1st Fast Track Court, Serampore on 30.11.2012. Post-divorce, the appellant herein re-married and has a male child born out of the second wedlock. 11. By an order dated 02.02.2015, the High Court disposed of the above revision petition by directing the appellant-husband to pay a sum of Rs.16,000/- towards the maintenance of the respondent-wife as well as her minor son. Aggrieved by this order, the respondent-wife preferred a Special Leave Petition (C) No.12968 of 2015 which was disposed of as withdrawn with liberty to approach the High Court by way of review. Pursuant to the above order, respondent-wife filed a review application being RVW No.85 of 2016 arising out of CO NO.4228 of 2012. Upon hearing both the parties, by order dated 15.09.2016, the learned Single Judge of the High Court modified the order under review and enhanced the amount of maintenance from Rs.16,000/- to Rs.23,000/- which is the subject matter of challenge in this appeal. 12. Learned counsel for the appellant Mr. Pijush K. Roy submitted that in exercise of review jurisdiction, the High Court ought not to have enhanced the maintenance amount from Rs.16,000/- to Rs.23,000/-. It was further submitted that the appellant-husband is posted at Malda Medical College, Malda, West Bengal and gets a net salary of Rs.87,500/- per month and while so, the appellant would find it difficult to pay enhanced maintenance amount of Rs.23,000/- per month to the respondent-wife. It is also submitted that the respondent is a qualified beautician and Montessori teacher and earns Rs.30,000/- per month and the son has also attained eighteen years of age and hence the enhanced maintenance amount of Rs.23,000/- per month is on the higher side and prayed for restoring the original order of Rs.16,000/- per month. 13. Per contra, learned counsel for the respondent-wife Ms. Supriya Juneja submitted that the High Court on perusal of the pay slip and the expenditure of appellant-husband has arrived at the right conclusion of granting Rs.23,000/- as maintenance to the respondent. The learned counsel has also further submitted that even though the son has attained majority and since the son is aged only eighteen years and is presently studying in a college and for meeting the expenses of higher education and other requirements, enhanced maintenance amount of Rs.23,000/- per month is a reasonable one and the impugned order warrants no interference. 14. We have considered the rival contentions and perused the impugned judgment and other materials on record. 15. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 25. In exercising the power under Section 25 (2), the court would have regard to the change in the circumstances of the parties. There must be some change in the circumstances of either party which may have to be taken into account when an application is made under sub-section (2) of Section 25 for variation, modification or rescission of the order as the court may deem just. 16. The review petition under Order XLVII Rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant-husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129 , in this case, it was held that 25% of the husbands net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son.
### Response:
1
### Explanation:
14. We have considered the rival contentions and perused the impugned judgment and other materials on record15. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 2516. The review petition under Order XLVII Rule 1 CPC came to be filed by the respondent-wife pursuant to the liberty granted by this Court when the earlier order dated 02.02.2015 awarding a maintenance of Rs.16,000/- to the respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant-husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income-tax. In February, 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129 , in this case, it was held that 25% of the husbands net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent-wife and son
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Kerala Transport Company Vs. Shah Manilal Mulchand and Others | 1. This appeal by special leave is directed against an order of the Gujarat High Court dated September 26, 19742. A suit was filed by the respondents for possession of the suit premises against the appellant on the ground that the appellant was a licensee. The suit was contested by the appellant. On the pleadings of the parties as many as eight issues were framed by the trial court. Both the parties had led oral as well as documentary evidence in support of their case. The trial court decreed the suit. The appellant aggrieved against the judgment and decree of the trial court filed an appeal before the High Court. The High Court by the impugned order dismissed the appeal by one word "Dismissed."3. Aggrieved against the aforesaid order of the High Court, the appellant has come in appeal before this Court 4. We have heard learned counsel for the parties and in our view the High Court was wrong in dismissing the appeal by one word "Dismissed" without going into the merits of the case. It was a matter which was contested by the defendant, many issues were framed and parties had led oral as well as documentary evidence. The defendant had gone in first appeal to the High Court and it was the duty of the High Court to have decided the matter on merits as it was a final court of appeal on facts. It was contended by learned counsel for the respondents that it was not necessary for the High Court to give detailed reasons inasmuch as the High Court had upheld the order of the trail court. Reliance in support of the above contention is placed on Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ]. On the other hand, learned counsel for the appellant has placed reliance on unreported decision of this Court in Rajan Textiles Mills Pvt. Ltd. v. M/s. Rampratap Udyoggamuha [C.A. No. 1591 of 1974 decided on 21.7.1989] 5. Even if first appellate court affirms the findings of the trial court, it is its duty to record its reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court based on appreciation of oral and documentary evidence is seriously challenged by a contesting party. In the facts of the present case, we are of the confirmed view that the High Court was totally wrong in dismissing the appeal by one word "Dismissed". The facts of the case in Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ] are totally distinguishable and in any case this authority even does not support the contention that the regular first appeal could have been dismissed by the High Court by one word "Dismissed." | 1[ds]4. We have heard learned counsel for the parties and in our view the High Court was wrong in dismissing the appeal by one word "Dismissed" without going into the merits of the case. It was a matter which was contested by the defendant, many issues were framed and parties had led oral as well as documentary evidence. The defendant had gone in first appeal to the High Court and it was the duty of the High Court to have decided the matter on merits as it was a final court of appeal on facts.Even if first appellate court affirms the findings of the trial court, it is its duty to record its reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court based on appreciation of oral and documentary evidence is seriously challenged by a contesting party. In the facts of the present case, we are of the confirmed view that the High Court was totally wrong in dismissing the appeal by one word "Dismissed". The facts of the case in Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ] are totally distinguishable and in any case this authority even does not support the contention that the regular first appeal could have been dismissed by the High Court by one word "Dismissed." | 1 | 536 | 269 | ### 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:
1. This appeal by special leave is directed against an order of the Gujarat High Court dated September 26, 19742. A suit was filed by the respondents for possession of the suit premises against the appellant on the ground that the appellant was a licensee. The suit was contested by the appellant. On the pleadings of the parties as many as eight issues were framed by the trial court. Both the parties had led oral as well as documentary evidence in support of their case. The trial court decreed the suit. The appellant aggrieved against the judgment and decree of the trial court filed an appeal before the High Court. The High Court by the impugned order dismissed the appeal by one word "Dismissed."3. Aggrieved against the aforesaid order of the High Court, the appellant has come in appeal before this Court 4. We have heard learned counsel for the parties and in our view the High Court was wrong in dismissing the appeal by one word "Dismissed" without going into the merits of the case. It was a matter which was contested by the defendant, many issues were framed and parties had led oral as well as documentary evidence. The defendant had gone in first appeal to the High Court and it was the duty of the High Court to have decided the matter on merits as it was a final court of appeal on facts. It was contended by learned counsel for the respondents that it was not necessary for the High Court to give detailed reasons inasmuch as the High Court had upheld the order of the trail court. Reliance in support of the above contention is placed on Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ]. On the other hand, learned counsel for the appellant has placed reliance on unreported decision of this Court in Rajan Textiles Mills Pvt. Ltd. v. M/s. Rampratap Udyoggamuha [C.A. No. 1591 of 1974 decided on 21.7.1989] 5. Even if first appellate court affirms the findings of the trial court, it is its duty to record its reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court based on appreciation of oral and documentary evidence is seriously challenged by a contesting party. In the facts of the present case, we are of the confirmed view that the High Court was totally wrong in dismissing the appeal by one word "Dismissed". The facts of the case in Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ] are totally distinguishable and in any case this authority even does not support the contention that the regular first appeal could have been dismissed by the High Court by one word "Dismissed."
### Response:
1
### Explanation:
4. We have heard learned counsel for the parties and in our view the High Court was wrong in dismissing the appeal by one word "Dismissed" without going into the merits of the case. It was a matter which was contested by the defendant, many issues were framed and parties had led oral as well as documentary evidence. The defendant had gone in first appeal to the High Court and it was the duty of the High Court to have decided the matter on merits as it was a final court of appeal on facts.Even if first appellate court affirms the findings of the trial court, it is its duty to record its reasons in brief for doing so. It is all the more necessary in a case where such court is a final court of finding of fact and where the judgment of the trial court based on appreciation of oral and documentary evidence is seriously challenged by a contesting party. In the facts of the present case, we are of the confirmed view that the High Court was totally wrong in dismissing the appeal by one word "Dismissed". The facts of the case in Girija Nandini Devi v. Bijendra Narain Choudhury 1967 AIR(SC) 1124 : 1967 (1) SCR 93 ] are totally distinguishable and in any case this authority even does not support the contention that the regular first appeal could have been dismissed by the High Court by one word "Dismissed."
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Smt. Ashalata Das Vs. New India Assurance Company Limited and Others | The amount directed to be invested, which was otherwise also a modest one, was not such as to suggest that the intended benefit was confined to only interest therefrom to be enjoyed by the appellant during her lifetime. 6. Learned counsel further submitted that, in the circumstances of the present case, the investment of the entire sum of Rs. 25, 000 during the lifetime of the appellant and virtually limiting her beneficial interest only to the receipt of the interest of Rs. 200 or thereabouts per month would be unrealistic having regard to the nature and extent of the present needs of the ailing old lady which might require a more generous allowance than a meagre Rs. 200 per month for her food, shelter, raiment and medical relief.7. Learned counsel for the insurer, however, sought to support the impugned direction and submitted that the judgment, read as a whole, left no room for doubt that what was intended to be given to the appellant was the benefit of periodic payments during her lifetime and it was only to facilitate prompt monthly payments, limited and confined to the period of her life, that the investment was directed to be made. Learned counsel said that the provision for the reversion of the fund to the insurer was consistent with, and justifiable on, this scheme of limited relief contemplated by the appellate judgment.On a consideration of the matter, we are afraid that the judgment of the High Court does not bear the construction sought to be placed on it by the insurer as to the nature and extent of the relief intended to be afforded to the appellant. The judgment does not indicate that the benefit intended by it was only in the nature of a monthly payment for and during the appellants lifetime and not a lump sum award. It is not so much a question whether, in a fatal accident action, the Tribunal or the High Court, as the case may be, has and has not the power to award an annuity or other periodic payments in preference to a lump sum and once for all payment. as it is one whether, in this particular case, the High Court had actually done so. The first part of the judgment which we have excerpted earlier clearly indicated the stand of the insurer that it did not press its challenge to the lump sum award of Rs. 16, 000 together with interest thereon. The award confirmed by the High Court was a lump sum award.8. However, the High Court found it necessary to protect the interests of the appellant by ensuring the safety of the corpus of the fund by proper investment and providing for monthly payments of the interest accruing on the investment. These directions issued for the protection of the appellant did not have the effect of altering the nature and substance of the award into one of mere monthly payments of Rs. 200 limited to the appellants lifetime. The further direction in the judgment that the corpus should revert to the insurer after the lifetime of the appellant does not square with the first part of the judgment which clearly affirmed a lump sum award of Rs. 16, 000 and interest thereon in favour of the appellant. We, accordingly, hold that the direction for reversion of the corpus of the fund to the insurer upon the appellants death requires to be deleted. It is, accordingly, set aside. We hold that the High Court has granted a lump sum of Rs. 16, 000 with interest, which, as at the date of judgment, aggregated to Rs. 25, 000.What remains to be considered is whether the directions as to the investment make adequate provision for the needs and requirements of the appellant. It is stated that the appellant is over 70 years of age now. The direction that the entire sum of Rs. 25, 000 be permanently invested and that only the interest accruing thereon each month be recoverable by the appellant may not, in the circumstance of the case, be a reasonable one. In these days of steep inflation, the amount of Rs. 200 may not amount to much in the matter of providing even a frugal living for the appellant, who has apparently no other source of sustenance. The appellant is in the late evening of her life and there is no reason why the allowance should not be a little more generous. 9. In the circumstances, it appears to us that out of the sum of Rs. 25, 000, a sum of Rs. 4, 000 together with the entire undistributed accrued interest, if any, be paid to her immediately. The remaining sum of Rs. 21, 000 be invested in any nationalised bank in the name of the appellant in six fixed deposits of Rs. 3, 500 each, the period of the investment ranging from 1 year to 6 years, the first deposit being for a period of one year ; the second for two years and so on. The appellant shall be entitled to receive the interest accruing on all the six deposits every month. She shall be entitled to the proceeds of the deposit upon their maturity as and when the deposits mature. It shall be ensured that the appellant shall not be entitled to part with or negotiate the deposit receipts or encash them prematurely nor shall she be entitled to raise any loans on their security. The order of the High Court is modified accordingly.10. The Tribunal is directed to implement the directions contained in this judgment for the benefit of the appellant.We, however, make it clear that if the entire sum has already been invested pursuant to the directions of the High Court in any permanent investment and that investment cannot, in the opinion of the Tribunal, be recalled or disturbed, the Tribunal shall make a reference, to this court within a month of the date of the receipt of this order for appropriate further directions. | 1[ds]The judgment does not indicate that the benefit intended by it was only in the nature of a monthly payment for and during the appellants lifetime and not a lump sum award. It is not so much a question whether, in a fatal accident action, the Tribunal or the High Court, as the case may be, has and has not the power to award an annuity or other periodic payments in preference to a lump sum and once for all payment. as it is one whether, in this particular case, the High Court had actually done so. The first part of the judgment which we have excerpted earlier clearly indicated the stand of the insurer that it did not press its challenge to the lump sum award of Rs. 16, 000 together with interest thereon. The award confirmed by the High Court was a lump sum award.8. However, the High Court found it necessary to protect the interests of the appellant by ensuring the safety of the corpus of the fund by proper investment and providing for monthly payments of the interest accruing on the investment. These directions issued for the protection of the appellant did not have the effect of altering the nature and substance of the award into one of mere monthly payments of Rs. 200 limited to the appellants lifetime. The further direction in the judgment that the corpus should revert to the insurer after the lifetime of the appellant does not square with the first part of the judgment which clearly affirmed a lump sum award of Rs. 16, 000 and interest thereon in favour of theis stated that the appellant is over 70 years of age now. The direction that the entire sum of Rs. 25, 000 be permanently invested and that only the interest accruing thereon each month be recoverable by the appellant may not, in the circumstance of the case, be a reasonable one. In these days of steep inflation, the amount of Rs. 200 may not amount to much in the matter of providing even a frugal living for the appellant, who has apparently no other source of sustenance. The appellant is in the late evening of her life and there is no reason why the allowance should not be a little more generous. | 1 | 2,134 | 416 | ### Instruction:
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The amount directed to be invested, which was otherwise also a modest one, was not such as to suggest that the intended benefit was confined to only interest therefrom to be enjoyed by the appellant during her lifetime. 6. Learned counsel further submitted that, in the circumstances of the present case, the investment of the entire sum of Rs. 25, 000 during the lifetime of the appellant and virtually limiting her beneficial interest only to the receipt of the interest of Rs. 200 or thereabouts per month would be unrealistic having regard to the nature and extent of the present needs of the ailing old lady which might require a more generous allowance than a meagre Rs. 200 per month for her food, shelter, raiment and medical relief.7. Learned counsel for the insurer, however, sought to support the impugned direction and submitted that the judgment, read as a whole, left no room for doubt that what was intended to be given to the appellant was the benefit of periodic payments during her lifetime and it was only to facilitate prompt monthly payments, limited and confined to the period of her life, that the investment was directed to be made. Learned counsel said that the provision for the reversion of the fund to the insurer was consistent with, and justifiable on, this scheme of limited relief contemplated by the appellate judgment.On a consideration of the matter, we are afraid that the judgment of the High Court does not bear the construction sought to be placed on it by the insurer as to the nature and extent of the relief intended to be afforded to the appellant. The judgment does not indicate that the benefit intended by it was only in the nature of a monthly payment for and during the appellants lifetime and not a lump sum award. It is not so much a question whether, in a fatal accident action, the Tribunal or the High Court, as the case may be, has and has not the power to award an annuity or other periodic payments in preference to a lump sum and once for all payment. as it is one whether, in this particular case, the High Court had actually done so. The first part of the judgment which we have excerpted earlier clearly indicated the stand of the insurer that it did not press its challenge to the lump sum award of Rs. 16, 000 together with interest thereon. The award confirmed by the High Court was a lump sum award.8. However, the High Court found it necessary to protect the interests of the appellant by ensuring the safety of the corpus of the fund by proper investment and providing for monthly payments of the interest accruing on the investment. These directions issued for the protection of the appellant did not have the effect of altering the nature and substance of the award into one of mere monthly payments of Rs. 200 limited to the appellants lifetime. The further direction in the judgment that the corpus should revert to the insurer after the lifetime of the appellant does not square with the first part of the judgment which clearly affirmed a lump sum award of Rs. 16, 000 and interest thereon in favour of the appellant. We, accordingly, hold that the direction for reversion of the corpus of the fund to the insurer upon the appellants death requires to be deleted. It is, accordingly, set aside. We hold that the High Court has granted a lump sum of Rs. 16, 000 with interest, which, as at the date of judgment, aggregated to Rs. 25, 000.What remains to be considered is whether the directions as to the investment make adequate provision for the needs and requirements of the appellant. It is stated that the appellant is over 70 years of age now. The direction that the entire sum of Rs. 25, 000 be permanently invested and that only the interest accruing thereon each month be recoverable by the appellant may not, in the circumstance of the case, be a reasonable one. In these days of steep inflation, the amount of Rs. 200 may not amount to much in the matter of providing even a frugal living for the appellant, who has apparently no other source of sustenance. The appellant is in the late evening of her life and there is no reason why the allowance should not be a little more generous. 9. In the circumstances, it appears to us that out of the sum of Rs. 25, 000, a sum of Rs. 4, 000 together with the entire undistributed accrued interest, if any, be paid to her immediately. The remaining sum of Rs. 21, 000 be invested in any nationalised bank in the name of the appellant in six fixed deposits of Rs. 3, 500 each, the period of the investment ranging from 1 year to 6 years, the first deposit being for a period of one year ; the second for two years and so on. The appellant shall be entitled to receive the interest accruing on all the six deposits every month. She shall be entitled to the proceeds of the deposit upon their maturity as and when the deposits mature. It shall be ensured that the appellant shall not be entitled to part with or negotiate the deposit receipts or encash them prematurely nor shall she be entitled to raise any loans on their security. The order of the High Court is modified accordingly.10. The Tribunal is directed to implement the directions contained in this judgment for the benefit of the appellant.We, however, make it clear that if the entire sum has already been invested pursuant to the directions of the High Court in any permanent investment and that investment cannot, in the opinion of the Tribunal, be recalled or disturbed, the Tribunal shall make a reference, to this court within a month of the date of the receipt of this order for appropriate further directions.
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The judgment does not indicate that the benefit intended by it was only in the nature of a monthly payment for and during the appellants lifetime and not a lump sum award. It is not so much a question whether, in a fatal accident action, the Tribunal or the High Court, as the case may be, has and has not the power to award an annuity or other periodic payments in preference to a lump sum and once for all payment. as it is one whether, in this particular case, the High Court had actually done so. The first part of the judgment which we have excerpted earlier clearly indicated the stand of the insurer that it did not press its challenge to the lump sum award of Rs. 16, 000 together with interest thereon. The award confirmed by the High Court was a lump sum award.8. However, the High Court found it necessary to protect the interests of the appellant by ensuring the safety of the corpus of the fund by proper investment and providing for monthly payments of the interest accruing on the investment. These directions issued for the protection of the appellant did not have the effect of altering the nature and substance of the award into one of mere monthly payments of Rs. 200 limited to the appellants lifetime. The further direction in the judgment that the corpus should revert to the insurer after the lifetime of the appellant does not square with the first part of the judgment which clearly affirmed a lump sum award of Rs. 16, 000 and interest thereon in favour of theis stated that the appellant is over 70 years of age now. The direction that the entire sum of Rs. 25, 000 be permanently invested and that only the interest accruing thereon each month be recoverable by the appellant may not, in the circumstance of the case, be a reasonable one. In these days of steep inflation, the amount of Rs. 200 may not amount to much in the matter of providing even a frugal living for the appellant, who has apparently no other source of sustenance. The appellant is in the late evening of her life and there is no reason why the allowance should not be a little more generous.
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Laxman Prasad Vs. Prodigy Electronics Ltd. | rendered by this Court. We do not intend to burden our judgment on that point as the law is well settled and the learned counsel for the respondent-Company has not disputed the proposition. What was contended was that Clause 18 does not take away the jurisdiction of a competent Court and the agreement did not exclude territorial jurisdiction of any Court.24. Learned counsel for the appellant relied on a decision of this Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481. In that case, the plaintiff purchased from the defendant-Company raw cashew nuts which were shipped in a vessel chartered by the Company incorporated in England. Clause 3 of the Bill of Lading dealt with jurisdiction of the Court. The said clause read as under:3. JURISDICTION: The contract evidenced by this bill of lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country.25. Though the above clause made it clear that the dispute should be determined in England, this Court held that the objection as to territorial jurisdiction had been waived by the defendant. So far as the law is concerned, it was held that proper law to govern the contract was English law.26. The learned counsel for the appellant submitted that the ratio laid down in British India Steam Navigation Co. applies to the case on hand and the High Court of Delhi committed an error of law in not upholding the objection of the defendant that Indian Court had no jurisdiction to deal with the matter. 27. We are unable to agree. Clause 3, as extracted hereinabove, clearly provided that the contract would be governed by English law. The High Court was, therefore, right in observing that the case is not relevant so far as the question raised in the present matter.28. The counsel also referred to National Thermal Power Corporation v. Singer Company & Ors., (1992) 3 SCC 551. The parties in that case by an agreement had chosen the jurisdiction of one Court to the exclusion of the other. Likewise, they also agreed as to the applicability of law. In the light of the fact situation, the Court held that the parties are bound by such Agreement and it has to approach a Court in consonance with the agreement. This judgment also does not help the appellant in the instant case.29. Our attention was also invited to Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors., (2005) 5 SCC 465. Even that case also does not help the appellant. What was held there was as to the law applicable to the dispute and not the territorial jurisdiction of the Court. On the contrary, para 23 of the said decision goes to show that territorial jurisdiction of the Court and applicability of law are two different things and even if a matter is decided in the country other than the country where the agreement has been executed, the law which would apply would be the law agreed by the parties.30. The Court stated; "23. The relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis-à-vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system of law". (emphasis supplied)31. In the case on hand, we have referred to the relevant clauses of the agreement. Clause 18 provides for applicability of law and it specifically declares that the terms and conditions of the agreement shall be interpreted in accordance with the laws of Hong Kong Special Administrative Region. That, in our judgment, does not mean that a suit can be instituted only in Hong Kong and not in any other country. Territorial jurisdiction of a Court, when the plaintiff intends to invoke jurisdiction of any Court in India, has to be ascertained on the basis of the principles laid down in the Code of Civil Procedure. Since a part of cause of action has arisen within the local limits of Delhi as averred in the plaint by the plaintiff Company, the question has to be considered on the basis of such averment. Since it is alleged that the appellant-defendant had committed breach of agreement by using trade mark/trade name in Trade Fair, 2005 in Delhi, a part of cause of action has arisen in Delhi. The plaintiff-Company, in the circumstances, could have filed a suit in Delhi. So far as applicability of law is concerned, obviously as and when the suit will come up for hearing, the Court will interpret the clause and take an appropriate decision in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of the Court. The High Court, in our opinion, was right in rejecting the application and in overruling preliminary objection. Since prima facie the plaint disclosed a cause of action as also territorial jurisdiction of the Court, the High Court rightly rejected both the contentions and no error was committed by it in not rejecting plaint, nor returning it for presentation to proper Court. Applicability of Hong Kong Law, entering into an agreement in Hong Kong or defendant residing in Ghaziabad (Uttar Pradesh) or any of them does not take away the jurisdiction of Delhi Court since a cause of action at least in part, can be said to have arisen in Delhi. We, therefore, see no substance in the contention of the defendant-appellant. | 0[ds]n view of thee was issuedThe High Court,t has challenged the said order by filing the present appeal. On August 7, 2006,ed by this Courtand in the meantime further proceedings in the suit were stayed.We have heard learned counsel for the parties.11.e learned counsel for the respondent-Company, on the other hand, supported the order passed by the High Court. He submitted that the only thing which was relevant in the agreement was as to applicability of laws. As per settled legal position, a suit could be instituted in Delhi as part of cause of action had arisen within the territorial jurisdiction of that Court. The High Court was right in observing that applicability of law had nothing to do with situs of a suit and since the defendant had used the trade mark/trade name of the plaintiff in Delhi in Trade Fair, it was open to the plaintiff Company to institute a suit in Delhi. It was submitted that it is really surprising that though Hong Kong based Company institutes a suit in Delhi where the defendant had used the trade mark/trade name, where he resides and thus it is much more convenient to him to defend the suit, yet he objects to the proceedings which clearly goes to show that the only intention on the part of the defendant is to delay the proceedings. The High Court was, therefore, right in dismissing the application and in ordering payment of costs by him. It was, therefore, submitted that the appeal deserves to be dismissed.Having heard the learned counsel for the parties, in our opinion, no case has been made out by the appellant from which it can be said that Delhi Court had no jurisdiction. Both the learned counsel referred to the agreement dated September 13, 2004 entered into between the parties. Clause 10 of the agreement relates to "Resignation and Termination of Service". In accordance with the said clause, the appellant herein left the plaintiff-Company. Clause 10 stipulates that in the event of resignation or termination for any reason, the employee would not engage himself in a similar or competitive business for a period of two years, nor he would contact or solicit any customer or supplier with whom the employer conducted business during the employment. Clause 14 provides for Conflict of Interest. Clause 15 deals with Confidentiality. It recites that upon accepting employment with Prodigy, the defendant would maintain confidentiality which would mean that he would not disclose any Prodigy confidential information either during or after his employment to anyone outside the Company, nor would use it for personal benefit. Clause 18 is material for the purpose of controversy and may be reproduced:18. The terms and conditions as stipulated above shall be interpreted in accordance to the laws of the Hong Kong Special Administrative Region.(emphasis supplied)14. It is this Clause (Clause 18), which requires interpretation. According to the appellant, since the terms and conditions in the agreement have to be interpreted in accordance with the laws of Hong Kong, no Court in any country other than a Court in Hong Kong shall have jurisdiction to entertain a suit, petition, application or any other proceeding. The submission of the respondent-Company, on the other hand, is that what is agreed upon is not territorial jurisdiction of a Court but applicability of laws. Clause 18 deals with the second eventuality and declares that terms and conditions of the agreement would be interpreted in accordance with the laws of Hong Kong.15. We find considerable force in the submission of the learned counsel for the respondent Company. In our view, cause of action and applicability of law are two distinct, different and independent things and one cannot be confused with the other. The expression cause of action has not been defined in the Code. It is however settled law that every suit presupposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected [Rule 11(a) of Order VII). Stated simply, cause of action means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. The classic definition of the expression (cause of action) is found in the observations of Lord Brett in98.16. His Lordshipof action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court".In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, (1989) 2 SCC 163 , this Courtcause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff".(emphasis supplied)18. Now, Sections 16 to 20 of the Code deal with territorial jurisdiction of a Court (place of suing). Whereas Sections 16 to 18 relate to immovable property, suits for compensation for wrongs to persons or movables have been dealt with under Section 19. Section 20 of the Code is a residuary provision and covers all cases not falling under Sections 16 to 19.19. The relevant part of Section 20 reads thus;20 - Other suits to be instituted where defendants reside or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry or business, or personally work for gain, as aforesaid, acquiesce in such institution ; or(c) the cause of action, wholly or in part, arises.(emphasis supplied)20. Bare reading of Clause (c) leaves no room for doubt that a suit would lie in a court within the local limits of whose jurisdiction the cause of action has arisen, wholly or partly.21. Section 20 has been designed to secure that justice might be brought as near as possible to every mans hearthstone and that the defendant should not be put to the trouble and expense of traveling long distances in order to defend himself.22. According to the plaintiff-Company, a suit instituted on the Original Side of the High Court of Delhi is maintainable since a part of cause of action had accrued within the territorial jurisdiction of Delhi Court (breach of agreement by defendant). The argument of the defendant that the agreement was executed in Hong Kong and hence suit could have been instituted only in that country is, in our opinion, not well founded. It is no doubt true that the suit could have been instituted in Hong Kong as well. That, however, does not take away the jurisdiction of Delhi Court where a part of cause of action has arisen. In the plaint, it was specifically alleged by the plaintiff Company that the defendant committed breach of terms and conditions of agreement during the Trade Fair in February, 2005 held in Pragati Maidan, Delhi. It was, therefore, open to the plaintiff Company to institute a suit in a competent Court within the jurisdiction of Delhi and that is how the suit is filed in the High Court on its Original Side. In our considered opinion, therefore, the contention of the appellant-defendant that the agreement was executed in a foreign country or the defendant was a resident of Ghaziabad (Uttar Pradesh) cannot take away, exclude or oust the jurisdiction of Delhi Courtview of theaverment made in the plaint that a part of cause of action had arisen within the local limits of Delhi.23. It was submitted by the learned counsel for the appellant that once there is an agreement as to choice of Court or forum, the parties are bound by it. For the said proposition, our attention has been invited to several decisionsWe do not intend to burden our judgment on that point as the law is well settled and the learned counsel for the respondent-Company has not disputed the proposition. What was contended was that Clause 18 does not take away the jurisdiction of a competent Court and the agreement did not exclude territorial jurisdiction of any Court.24. Learned counsel for the appellant relied on a decision of this Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481. In that case, the plaintiff purchased from the defendant-Company raw cashew nuts which were shipped in a vessel chartered by the Company incorporated in England. Clause 3 of the Bill of Lading dealt with jurisdiction of the Court. The said clause read as under:3. JURISDICTION: The contract evidenced by this bill of lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country.25. Though the above clause made it clear that the dispute should be determined in England, this Court held that the objection as to territorial jurisdiction had been waived by the defendant. So far as the law is concerned, it was held that proper law to govern the contract was English law.26. Thelearned counsel for the appellant submitted that the ratio laid down in British India Steam Navigation Co. applies to the case on hand and the High Court of Delhi committed an error of law in not upholding the objection of the defendant that Indian Court had no jurisdiction to deal with the matter.We are unable to agree. Clause 3, as extracted hereinabove, clearly provided that the contract would be governed by English law. The High Court was, therefore, right in observing that the case is not relevant so far as the question raised in the present matter.28. The counsel also referred to National Thermal Power Corporation v. Singer Company & Ors., (1992) 3 SCC 551. The parties in that case by an agreement had chosen the jurisdiction of one Court to the exclusion of the other. Likewise, they also agreed as to the applicability of law. In the light of the fact situation, the Court held that the parties are bound by such Agreement and it has to approach a Court in consonance with the agreement. This judgment also does not help the appellant in the instant case.29. Our attention was also invited to Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors., (2005) 5 SCC 465. Even that case also does not help the appellant. What was held there was as to the law applicable to the dispute and not the territorial jurisdiction of the Court. On the contrary, para 23 of the said decision goes to show that territorial jurisdiction of the Court and applicability of law are two different things and even if a matter is decided in the country other than the country where the agreement has been executed, the law which would apply would be the law agreed by the parties.30. The CourtThe relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis-à-vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system ofsupplied)31. In the case on hand, we have referred to the relevant clauses of the agreement. Clause 18 provides for applicability of law and it specifically declares that the terms and conditions of the agreement shall be interpreted in accordance with the laws of Hong Kong Special Administrative Region. That, in our judgment, does not mean that a suit can be instituted only in Hong Kong and not in any other country. Territorial jurisdiction of a Court, when the plaintiff intends to invoke jurisdiction of any Court in India, has to be ascertained on the basis of the principles laid down inof Civil Procedure. Since a part of cause of action has arisen within the local limits of Delhi as averred in the plaint by the plaintiff Company, the question has to be considered on the basis of such averment. Since it is alleged that the appellant-defendant had committed breach of agreement by using trade mark/trade name in Trade Fair, 2005 in Delhi, a part of cause of action has arisen in Delhi. The plaintiff-Company, in the circumstances, could have filed a suit in Delhi. So far as applicability of law is concerned, obviously as and when the suit will come up for hearing, the Court will interpret the clause and take an appropriate decision in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of the Court.The High Court,in our opinion, was right in rejecting the application and in overruling preliminary objection. Since prima facie the plaint disclosed a cause of action as also territorial jurisdiction of the Court, the High Court rightly rejected both the contentions and no error was committed by it in not rejecting plaint, nor returning it for presentation to proper Court. Applicability of Hong Kong Law, entering into an agreement in Hong Kong or defendant residing in Ghaziabad (Uttar Pradesh) or any of them does not take away the jurisdiction of Delhi Court since a cause of action at least in part, can be said to have arisen in Delhi. We, therefore, see no substance in the contention of the defendant-appellant. | 0 | 4,448 | 2,782 | ### Instruction:
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rendered by this Court. We do not intend to burden our judgment on that point as the law is well settled and the learned counsel for the respondent-Company has not disputed the proposition. What was contended was that Clause 18 does not take away the jurisdiction of a competent Court and the agreement did not exclude territorial jurisdiction of any Court.24. Learned counsel for the appellant relied on a decision of this Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481. In that case, the plaintiff purchased from the defendant-Company raw cashew nuts which were shipped in a vessel chartered by the Company incorporated in England. Clause 3 of the Bill of Lading dealt with jurisdiction of the Court. The said clause read as under:3. JURISDICTION: The contract evidenced by this bill of lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country.25. Though the above clause made it clear that the dispute should be determined in England, this Court held that the objection as to territorial jurisdiction had been waived by the defendant. So far as the law is concerned, it was held that proper law to govern the contract was English law.26. The learned counsel for the appellant submitted that the ratio laid down in British India Steam Navigation Co. applies to the case on hand and the High Court of Delhi committed an error of law in not upholding the objection of the defendant that Indian Court had no jurisdiction to deal with the matter. 27. We are unable to agree. Clause 3, as extracted hereinabove, clearly provided that the contract would be governed by English law. The High Court was, therefore, right in observing that the case is not relevant so far as the question raised in the present matter.28. The counsel also referred to National Thermal Power Corporation v. Singer Company & Ors., (1992) 3 SCC 551. The parties in that case by an agreement had chosen the jurisdiction of one Court to the exclusion of the other. Likewise, they also agreed as to the applicability of law. In the light of the fact situation, the Court held that the parties are bound by such Agreement and it has to approach a Court in consonance with the agreement. This judgment also does not help the appellant in the instant case.29. Our attention was also invited to Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors., (2005) 5 SCC 465. Even that case also does not help the appellant. What was held there was as to the law applicable to the dispute and not the territorial jurisdiction of the Court. On the contrary, para 23 of the said decision goes to show that territorial jurisdiction of the Court and applicability of law are two different things and even if a matter is decided in the country other than the country where the agreement has been executed, the law which would apply would be the law agreed by the parties.30. The Court stated; "23. The relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis-à-vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system of law". (emphasis supplied)31. In the case on hand, we have referred to the relevant clauses of the agreement. Clause 18 provides for applicability of law and it specifically declares that the terms and conditions of the agreement shall be interpreted in accordance with the laws of Hong Kong Special Administrative Region. That, in our judgment, does not mean that a suit can be instituted only in Hong Kong and not in any other country. Territorial jurisdiction of a Court, when the plaintiff intends to invoke jurisdiction of any Court in India, has to be ascertained on the basis of the principles laid down in the Code of Civil Procedure. Since a part of cause of action has arisen within the local limits of Delhi as averred in the plaint by the plaintiff Company, the question has to be considered on the basis of such averment. Since it is alleged that the appellant-defendant had committed breach of agreement by using trade mark/trade name in Trade Fair, 2005 in Delhi, a part of cause of action has arisen in Delhi. The plaintiff-Company, in the circumstances, could have filed a suit in Delhi. So far as applicability of law is concerned, obviously as and when the suit will come up for hearing, the Court will interpret the clause and take an appropriate decision in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of the Court. The High Court, in our opinion, was right in rejecting the application and in overruling preliminary objection. Since prima facie the plaint disclosed a cause of action as also territorial jurisdiction of the Court, the High Court rightly rejected both the contentions and no error was committed by it in not rejecting plaint, nor returning it for presentation to proper Court. Applicability of Hong Kong Law, entering into an agreement in Hong Kong or defendant residing in Ghaziabad (Uttar Pradesh) or any of them does not take away the jurisdiction of Delhi Court since a cause of action at least in part, can be said to have arisen in Delhi. We, therefore, see no substance in the contention of the defendant-appellant.
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forum, the parties are bound by it. For the said proposition, our attention has been invited to several decisionsWe do not intend to burden our judgment on that point as the law is well settled and the learned counsel for the respondent-Company has not disputed the proposition. What was contended was that Clause 18 does not take away the jurisdiction of a competent Court and the agreement did not exclude territorial jurisdiction of any Court.24. Learned counsel for the appellant relied on a decision of this Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481. In that case, the plaintiff purchased from the defendant-Company raw cashew nuts which were shipped in a vessel chartered by the Company incorporated in England. Clause 3 of the Bill of Lading dealt with jurisdiction of the Court. The said clause read as under:3. JURISDICTION: The contract evidenced by this bill of lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country.25. Though the above clause made it clear that the dispute should be determined in England, this Court held that the objection as to territorial jurisdiction had been waived by the defendant. So far as the law is concerned, it was held that proper law to govern the contract was English law.26. Thelearned counsel for the appellant submitted that the ratio laid down in British India Steam Navigation Co. applies to the case on hand and the High Court of Delhi committed an error of law in not upholding the objection of the defendant that Indian Court had no jurisdiction to deal with the matter.We are unable to agree. Clause 3, as extracted hereinabove, clearly provided that the contract would be governed by English law. The High Court was, therefore, right in observing that the case is not relevant so far as the question raised in the present matter.28. The counsel also referred to National Thermal Power Corporation v. Singer Company & Ors., (1992) 3 SCC 551. The parties in that case by an agreement had chosen the jurisdiction of one Court to the exclusion of the other. Likewise, they also agreed as to the applicability of law. In the light of the fact situation, the Court held that the parties are bound by such Agreement and it has to approach a Court in consonance with the agreement. This judgment also does not help the appellant in the instant case.29. Our attention was also invited to Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors., (2005) 5 SCC 465. Even that case also does not help the appellant. What was held there was as to the law applicable to the dispute and not the territorial jurisdiction of the Court. On the contrary, para 23 of the said decision goes to show that territorial jurisdiction of the Court and applicability of law are two different things and even if a matter is decided in the country other than the country where the agreement has been executed, the law which would apply would be the law agreed by the parties.30. The CourtThe relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis-à-vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system ofsupplied)31. In the case on hand, we have referred to the relevant clauses of the agreement. Clause 18 provides for applicability of law and it specifically declares that the terms and conditions of the agreement shall be interpreted in accordance with the laws of Hong Kong Special Administrative Region. That, in our judgment, does not mean that a suit can be instituted only in Hong Kong and not in any other country. Territorial jurisdiction of a Court, when the plaintiff intends to invoke jurisdiction of any Court in India, has to be ascertained on the basis of the principles laid down inof Civil Procedure. Since a part of cause of action has arisen within the local limits of Delhi as averred in the plaint by the plaintiff Company, the question has to be considered on the basis of such averment. Since it is alleged that the appellant-defendant had committed breach of agreement by using trade mark/trade name in Trade Fair, 2005 in Delhi, a part of cause of action has arisen in Delhi. The plaintiff-Company, in the circumstances, could have filed a suit in Delhi. So far as applicability of law is concerned, obviously as and when the suit will come up for hearing, the Court will interpret the clause and take an appropriate decision in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of the Court.The High Court,in our opinion, was right in rejecting the application and in overruling preliminary objection. Since prima facie the plaint disclosed a cause of action as also territorial jurisdiction of the Court, the High Court rightly rejected both the contentions and no error was committed by it in not rejecting plaint, nor returning it for presentation to proper Court. Applicability of Hong Kong Law, entering into an agreement in Hong Kong or defendant residing in Ghaziabad (Uttar Pradesh) or any of them does not take away the jurisdiction of Delhi Court since a cause of action at least in part, can be said to have arisen in Delhi. We, therefore, see no substance in the contention of the defendant-appellant.
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Suresh Kumar Wadhwa Vs. State Of M.P | 35. In our considered opinion, the object behind publishing all material term(s) is/are three fold. First, such term(s) is/are made known to the contracting parties/bidders; second, parties/bidders become aware of their rights, obligations, liabilities qua each other and also of the consequences in the event of their non-compliances; and third, it empowers the State to enforce any such term against the bidder in the event of any breach committed by the bidder and lastly, when there are express terms in the contract/pubic notice then parties are bound by the terms and their rights are, accordingly, determined in the light of such terms in accordance with law. 36. When we read the facts and law laid down by this Court in the case of Maula Bux v. Union of India, 1969(2) SCC 554 and Shri Hanuman Cotton Mills & Ors. v. Tata Air Craft Ltd., 1969(3) SCC 522, we find that there was a specific clause of forfeiture in the contract in both the cases. Such clause empowered one party to forfeit the earnest money/security deposit in the event of non-performance of the terms of the contract. It is in the light of such facts, Their Lordships examined the question of forfeiture in the context of Section 74 of the Contract Act. Such is not the case here. 37. Our reasoning is supported by a recent decision of this Court in Union of India v. Vertex Broadcasting Company Private Limited & Ors., (2015) 16 SCC 198 wherein Their Lordships held inter alia that in the absence of any power in the contract to forfeit the license money deposited by the licensee, the action of the Union to forfeit the license fees is held illegal. This is what was held: 10. Coming to the aforesaid question of availability of a power to order forfeiture, a reading of the relevant clauses i.e. Clauses 8(f), 10(d) and 12 extracted above would go to show that the Union had not protected/empowered itself to forfeit the licence fee. The forfeiture contemplated by the aforesaid clauses are altogether in different contexts and situations. In the absence of any such power, the forfeiture that has taken place in this case will have to be adjudged as null and void. 38. Learned counsel for the respondents (State) then argued that the appellant had committed the breach of clause 4 of public notice inasmuch as he failed to pay 1/4th amount and stopped payment of the cheque amount to the respondents. 39. We do not agree to this argument. In the first place, the appellant ensured compliance of the term because he deposited 1/4th amount of Rs. 10,45,000/- on the same day, i.e.,11.01.1996 by cheque. Secondly, the respondents also accepted the cheque from the appellant because deposit of money by cheque was one of the modes of payment. Had it not been so, the respondents would not have accepted the cheque from the appellant. Thirdly, the stop payment was done when the appellant received the acceptance letter containing four additional conditions to which he was not agreeable. He had, therefore, every right to wriggle out of the auction proceedings and stop further payment towards the transaction. Such action on the part of the appellant (bidder) did not amount to a breach of clause 4 so as to give right to the State to forfeit the security deposit. 40. In the light of foregoing discussion, we are of the considered opinion, that the appellant did not commit any breach of the term(s) and condition(s) of the notice inviting bids and on the other hand, it was the respondents who committed breaches. In these circumstances, the State had no right to forfeit the security amount and instead it should have been returned when demanded by the appellant. 41. Learned counsel for the appellant, however, brought to our notice that after cancellation of the auction proceedings in question, the plot in question was re-auctioned by the State and the same fetched Rs. 134.00 lakhs as against appellants bid amount of Rs. 53,50,000/-. Learned counsel for the respondents did not dispute this fact. In such circumstances, we find that the respondent did not suffer any monetary loss in the transaction and on the other hand earned more money as against what they would have got from the appellant. It is for this additional reason also, we are of the view that the action on the part of the respondents(State) in forfeiting the security deposit of the appellant was wholly unjustified. 42. In this case, it was expected from the State officials to have acted as an honest person while dealing with the case of an individual citizen and in all fairness should have returned the security amount to the appellant without compelling him to take recourse to the legal proceedings for recovery of his legitimate amount which took almost 21 years to recover. 43. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla in a case reported in Firm Kaluram Sitaram v. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinent observations in para 19: .....we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person. 44. We are in respectful agreement with the aforementioned observations as, in our considered opinion, they apply fully to the case in hand against the State. 45. We are, therefore, of the considered opinion that both the Courts below were not justified in their respective reasoning and the conclusion in dismissing the appellants suit. The appellants suit should have been decreed against the respondents. We hereby do so. | 1[ds]19. Having heard learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and the decree of the two Courts below and decree the appellants (plaintiffs) suit against the respondents as indicated infra23. Reading of Section 74 would go to show that in order to forfeit the sum deposited by the contracting party as earnest money or security for the due performance of the contract, it is necessary that the contract must contain a stipulation of forfeiture. In other words, a right to forfeit being a contractual right and penal in nature, the parties to a contract must agree to stipulate a term in the contract in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is no such right available to the party to forfeit the sum28. Keeping in view the aforementioned principle of law, when we examine the facts of the case at hand then we find that the public notice (advertisement), extracted above, only stipulated a term for deposit of the security amount of Rs. 3 lakhs by the bidder (appellant) but it did not publish any stipulation that the security amount deposited by the bidder (appellant herein) is liable for forfeiture by the State and, if so, in what contingencies29. In our opinion, a stipulation for deposit of security amount ought to have been qualified by a specific stipulation providing therein a right of forfeiture to the State. Similarly, it should have also provided the contingencies in which such right of forfeiture could be exercised by the State against the bidder. It is only then the State would have got a right to forfeit. It was, however, not so in this case30. So far as the four special conditions are concerned, these conditions were also not part of the public notice and nor they were ever communicated to the bidders before auction proceedings. There is no whisper of such conditions being ever considered as a part of the auction proceedings enabling the bidders to make their compliance, in case, their bid is accepted31. In our considered opinion, it was mandatory on the part of the respondents(State) to have published the four special conditions at the time of inviting the bids itself because how much money/rent the bidder would be required to pay to the State on allotment of plot to him was a material term and, therefore, the bidders were entitled to know these material terms at the time of submitting the bid itself. It was, however, not done in this case32. Since these four conditions were added unilaterally and communicated to the appellant by respondent No. 3 while accepting his bid, the appellant had every right to refuse to accept such conditions and wriggle out of the auction proceedings and demand refund of his security amount. The State, in such circumstances, had no right to insist upon the appellant to accept such conditions much less to comply and nor it had a right to cancel the bid on the ground ofe of these conditions by the appellant34. We find no merit in this submission for more than one reason. First, the public notice inviting bids did not even contain a term that all the provisions of RBC will be applicable to the auction proceedings and second, the relevant clauses of RBC which, according to the State, were to govern the auction proceedings ought to have been quoted in verbatim in the public notice itself. It was, however, not done35. In our considered opinion, the object behind publishing all material term(s) is/are three fold. First, such term(s) is/are made known to the contracting parties/bidders; second, parties/bidders become aware of their rights, obligations, liabilities qua each other and also of the consequences in the event of their; and third, it empowers the State to enforce any such term against the bidder in the event of any breach committed by the bidder and lastly, when there are express terms in the contract/pubic notice then parties are bound by the terms and their rights are, accordingly, determined in the light of such terms in accordance with law39. We do not agree to this argument. In the first place, the appellant ensured compliance of the term because he deposited 1/4th amount of Rs. 10,45,000/on the same day, i.e.,11.01.1996 by cheque. Secondly, the respondents also accepted the cheque from the appellant because deposit of money by cheque was one of the modes of payment. Had it not been so, the respondents would not have accepted the cheque from the appellant. Thirdly, the stop payment was done when the appellant received the acceptance letter containing four additional conditions to which he was not agreeable. He had, therefore, every right to wriggle out of the auction proceedings and stop further payment towards the transaction. Such action on the part of the appellant (bidder) did not amount to a breach of clause 4 so as to give right to the State to forfeit the security deposit40. In the light of foregoing discussion, we are of the considered opinion, that the appellant did not commit any breach of the term(s) and condition(s) of the notice inviting bids and on the other hand, it was the respondents who committed breaches. In these circumstances, the State had no right to forfeit the security amount and instead it should have been returned when demanded by the appellantIn such circumstances, we find that the respondent did not suffer any monetary loss in the transaction and on the other hand earned more money as against what they would have got from the appellant. It is for this additional reason also, we are of the view that the action on the part of the respondents(State) in forfeiting the security deposit of the appellant was wholly unjustified42. In this case, it was expected from the State officials to have acted as an honest person while dealing with the case of an individual citizen and in all fairness should have returned the security amount to the appellant without compelling him to take recourse to the legal proceedings for recovery of his legitimate amount which took almost 21 years to recover44. We are in respectful agreement with the aforementioned observations as, in our considered opinion, they apply fully to the case in hand against the State45. We are, therefore, of the considered opinion that both the Courts below were not justified in their respective reasoning and the conclusion in dismissing the appellants suit. The appellants suit should have been decreed against the respondents. We hereby do so. | 1 | 4,474 | 1,238 | ### 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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35. In our considered opinion, the object behind publishing all material term(s) is/are three fold. First, such term(s) is/are made known to the contracting parties/bidders; second, parties/bidders become aware of their rights, obligations, liabilities qua each other and also of the consequences in the event of their non-compliances; and third, it empowers the State to enforce any such term against the bidder in the event of any breach committed by the bidder and lastly, when there are express terms in the contract/pubic notice then parties are bound by the terms and their rights are, accordingly, determined in the light of such terms in accordance with law. 36. When we read the facts and law laid down by this Court in the case of Maula Bux v. Union of India, 1969(2) SCC 554 and Shri Hanuman Cotton Mills & Ors. v. Tata Air Craft Ltd., 1969(3) SCC 522, we find that there was a specific clause of forfeiture in the contract in both the cases. Such clause empowered one party to forfeit the earnest money/security deposit in the event of non-performance of the terms of the contract. It is in the light of such facts, Their Lordships examined the question of forfeiture in the context of Section 74 of the Contract Act. Such is not the case here. 37. Our reasoning is supported by a recent decision of this Court in Union of India v. Vertex Broadcasting Company Private Limited & Ors., (2015) 16 SCC 198 wherein Their Lordships held inter alia that in the absence of any power in the contract to forfeit the license money deposited by the licensee, the action of the Union to forfeit the license fees is held illegal. This is what was held: 10. Coming to the aforesaid question of availability of a power to order forfeiture, a reading of the relevant clauses i.e. Clauses 8(f), 10(d) and 12 extracted above would go to show that the Union had not protected/empowered itself to forfeit the licence fee. The forfeiture contemplated by the aforesaid clauses are altogether in different contexts and situations. In the absence of any such power, the forfeiture that has taken place in this case will have to be adjudged as null and void. 38. Learned counsel for the respondents (State) then argued that the appellant had committed the breach of clause 4 of public notice inasmuch as he failed to pay 1/4th amount and stopped payment of the cheque amount to the respondents. 39. We do not agree to this argument. In the first place, the appellant ensured compliance of the term because he deposited 1/4th amount of Rs. 10,45,000/- on the same day, i.e.,11.01.1996 by cheque. Secondly, the respondents also accepted the cheque from the appellant because deposit of money by cheque was one of the modes of payment. Had it not been so, the respondents would not have accepted the cheque from the appellant. Thirdly, the stop payment was done when the appellant received the acceptance letter containing four additional conditions to which he was not agreeable. He had, therefore, every right to wriggle out of the auction proceedings and stop further payment towards the transaction. Such action on the part of the appellant (bidder) did not amount to a breach of clause 4 so as to give right to the State to forfeit the security deposit. 40. In the light of foregoing discussion, we are of the considered opinion, that the appellant did not commit any breach of the term(s) and condition(s) of the notice inviting bids and on the other hand, it was the respondents who committed breaches. In these circumstances, the State had no right to forfeit the security amount and instead it should have been returned when demanded by the appellant. 41. Learned counsel for the appellant, however, brought to our notice that after cancellation of the auction proceedings in question, the plot in question was re-auctioned by the State and the same fetched Rs. 134.00 lakhs as against appellants bid amount of Rs. 53,50,000/-. Learned counsel for the respondents did not dispute this fact. In such circumstances, we find that the respondent did not suffer any monetary loss in the transaction and on the other hand earned more money as against what they would have got from the appellant. It is for this additional reason also, we are of the view that the action on the part of the respondents(State) in forfeiting the security deposit of the appellant was wholly unjustified. 42. In this case, it was expected from the State officials to have acted as an honest person while dealing with the case of an individual citizen and in all fairness should have returned the security amount to the appellant without compelling him to take recourse to the legal proceedings for recovery of his legitimate amount which took almost 21 years to recover. 43. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla in a case reported in Firm Kaluram Sitaram v. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinent observations in para 19: .....we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person. 44. We are in respectful agreement with the aforementioned observations as, in our considered opinion, they apply fully to the case in hand against the State. 45. We are, therefore, of the considered opinion that both the Courts below were not justified in their respective reasoning and the conclusion in dismissing the appellants suit. The appellants suit should have been decreed against the respondents. We hereby do so.
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penal in nature, the parties to a contract must agree to stipulate a term in the contract in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is no such right available to the party to forfeit the sum28. Keeping in view the aforementioned principle of law, when we examine the facts of the case at hand then we find that the public notice (advertisement), extracted above, only stipulated a term for deposit of the security amount of Rs. 3 lakhs by the bidder (appellant) but it did not publish any stipulation that the security amount deposited by the bidder (appellant herein) is liable for forfeiture by the State and, if so, in what contingencies29. In our opinion, a stipulation for deposit of security amount ought to have been qualified by a specific stipulation providing therein a right of forfeiture to the State. Similarly, it should have also provided the contingencies in which such right of forfeiture could be exercised by the State against the bidder. It is only then the State would have got a right to forfeit. It was, however, not so in this case30. So far as the four special conditions are concerned, these conditions were also not part of the public notice and nor they were ever communicated to the bidders before auction proceedings. There is no whisper of such conditions being ever considered as a part of the auction proceedings enabling the bidders to make their compliance, in case, their bid is accepted31. In our considered opinion, it was mandatory on the part of the respondents(State) to have published the four special conditions at the time of inviting the bids itself because how much money/rent the bidder would be required to pay to the State on allotment of plot to him was a material term and, therefore, the bidders were entitled to know these material terms at the time of submitting the bid itself. It was, however, not done in this case32. Since these four conditions were added unilaterally and communicated to the appellant by respondent No. 3 while accepting his bid, the appellant had every right to refuse to accept such conditions and wriggle out of the auction proceedings and demand refund of his security amount. The State, in such circumstances, had no right to insist upon the appellant to accept such conditions much less to comply and nor it had a right to cancel the bid on the ground ofe of these conditions by the appellant34. We find no merit in this submission for more than one reason. First, the public notice inviting bids did not even contain a term that all the provisions of RBC will be applicable to the auction proceedings and second, the relevant clauses of RBC which, according to the State, were to govern the auction proceedings ought to have been quoted in verbatim in the public notice itself. It was, however, not done35. In our considered opinion, the object behind publishing all material term(s) is/are three fold. First, such term(s) is/are made known to the contracting parties/bidders; second, parties/bidders become aware of their rights, obligations, liabilities qua each other and also of the consequences in the event of their; and third, it empowers the State to enforce any such term against the bidder in the event of any breach committed by the bidder and lastly, when there are express terms in the contract/pubic notice then parties are bound by the terms and their rights are, accordingly, determined in the light of such terms in accordance with law39. We do not agree to this argument. In the first place, the appellant ensured compliance of the term because he deposited 1/4th amount of Rs. 10,45,000/on the same day, i.e.,11.01.1996 by cheque. Secondly, the respondents also accepted the cheque from the appellant because deposit of money by cheque was one of the modes of payment. Had it not been so, the respondents would not have accepted the cheque from the appellant. Thirdly, the stop payment was done when the appellant received the acceptance letter containing four additional conditions to which he was not agreeable. He had, therefore, every right to wriggle out of the auction proceedings and stop further payment towards the transaction. Such action on the part of the appellant (bidder) did not amount to a breach of clause 4 so as to give right to the State to forfeit the security deposit40. In the light of foregoing discussion, we are of the considered opinion, that the appellant did not commit any breach of the term(s) and condition(s) of the notice inviting bids and on the other hand, it was the respondents who committed breaches. In these circumstances, the State had no right to forfeit the security amount and instead it should have been returned when demanded by the appellantIn such circumstances, we find that the respondent did not suffer any monetary loss in the transaction and on the other hand earned more money as against what they would have got from the appellant. It is for this additional reason also, we are of the view that the action on the part of the respondents(State) in forfeiting the security deposit of the appellant was wholly unjustified42. In this case, it was expected from the State officials to have acted as an honest person while dealing with the case of an individual citizen and in all fairness should have returned the security amount to the appellant without compelling him to take recourse to the legal proceedings for recovery of his legitimate amount which took almost 21 years to recover44. We are in respectful agreement with the aforementioned observations as, in our considered opinion, they apply fully to the case in hand against the State45. We are, therefore, of the considered opinion that both the Courts below were not justified in their respective reasoning and the conclusion in dismissing the appellants suit. The appellants suit should have been decreed against the respondents. We hereby do so.
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Rameshwar Singh Vs. State Of Jammu & Kashmir | to see him before. They disclosed the name of the accused on the very date of occurence when they said that they heard his three companions shouting at him "Ramesh what are you doing, dont be mad, you will be involved." Ghulam Nabi Mir, S.I. P.W. has clearly stated that it was on the very day of occurrence that the name of Rameshwar Singh, accused, was disclosed by Abdul Hamid and by some other witnesses."8. Here again, the High Court has committed the same error in seeking corroboration from the statements said to have been made to the police by Abdul Hussain and others during investigation. We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witnesses, According to Ch. Ghulam Nabi Mr. S.H.O., the appellants name was disclosed on the very day of the occurrence. There is no plausible reason discernible on the record as to why such steps were not taken if the appellants identity as a result of the disclosure of his name became known to the authorities the same day. The High Court appears to us not only to have erroneously disregarded the forms of legal process but has also failed to advert to important and vital aspects, thereby causing serious prejudice to the appellant. In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment.Let us now see if the evidence of Noor Hussain, Abdul Hamid and Noor Mohd. Sheikh in any way advances the case of the prosecution. Abdul Hamid (P.W. 2) who has a cycle shop about 9 or 10 yards from the Stadium chowk claims to have gone to see the match in question. When the P.A.C. young men are said to have turned the people out of the Stadium during the course of the trouble this witness also went out. He claims to have watched the entire occurrence from the roof of his shop through the window panes because he was afraid of being seen in the open lest he may also, be fired at. It is from there that he claims to have heard when the P.A.C. men addressed the appellant: "Have you turned mad ? Ramesh, have you turned mad This seems to us to be wholly unacceptable and it appears to us that these words have been introduced in the, evidence for the purpose of providing the missing link of identification of the appellant. Noor Mohd. Sheikh is the brother of Abdul Ghani Sheikh. He also did not know the appellant and he never saw him after the occurrence till he came to court, several months later. Though he claims to have given the description of the culprit to the police and to have also expressed his ability to identify him, he was for reasons not disclosed on the record, never made to identify the appellant at any test identification parade, , He also claims to have gone to the police station with Abdul Ghani Sheikh though the latter claims to have gone there all alone. Now, if he had actually heard the name of the appellant being shouted by the P.A.C. men as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the culprit was not disclosed to the police and not included in the report, Ex. P-1. Noor Hussain has also stated that three young men of the appellants unit came to the place of occurrence after the appellant had fired 8 or 9 shots and they shouted addressing the appellant: "Ramesh what are you doing, you will be implicated" and according to him they continued shouting these words for some time, before they secured the appellant and took him inside. In his cross- examination he has admitted that on the day of the occurrence no police officer asked him whether he was an eye witness. When he was approached by the police later he is stated to have told them: "The whole of the occurrence has taken place, outside the thana and you are not aware of it" Beyond this remark there was, according to him; no conversation between him and the police and indeed he asserts that no statement was taken from him on the day of the occurrence. In fact his position is that the statement in court was the only statement he had ever made relating to the occurrence. It is interesting to note that his statement before the police purporting to be under s. 161, Cr. P.C. is exhibited as D-6 and is dated October 7, 1967. We are wholly unable to place any reliance on the testimony of anyone of these witnesses, who seem to us to be clearly untruthful.Further, it appears from the evidence of C. L. Wasan (D.W. 2) who was again examined in the High Court that an informal identification parade of all the constables belonging to U.P. (P.A.C.) contingent had been held on October 7, 1967 in which the appellant was also present. Some members of the public were also there who were asked to identify the culprit but none of them were able to do so., We need not dilate on this evidence as there was no formal record of any such test identification parade.9. The significant fact, however, which casts serious doubt on the truth of the story of disclosure of the appellants name to the police on October 7, is the admitted omission by Ch. Ghulam Nabi Mir, S.H.O. to summon the appellant for interrogation soon after the alleged discovery of his name. No convincing or even intelligible explanation is forthcoming for interrogating the other P.A.C. men on the 8th and 9th October. Such investigation can scarcely inspire confidence.10. | 1[ds]The High Court appears to have relied on such statements in their entirety for seeking corroboration of the statement made by the prosecution witnesses in court and ultimately for the purpose of sustaining the appellants conviction. Incidentally, the manner in which the investigating agency conducted the investigation of this case also came up for serious criticism at the hands of the appellants counsel, it being urged that the investigation was not objective and impartial but smacked of prejudice against the appellant and was, therefore, unfair. The investigation was however, sought to be justified by the counsel for the State. The evidence of identification of the appellant on which the courts below placed reliance for convicting the appellant has to be with great care in order to see if such evidence is legally admissible and on the facts and circumstances of this case this scrutiny must, in our opinion, include within its purview the manner in which the investigation of the alleged offences was conducted by the authorities concerned. Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witnesses.We may now turn to the evidence on the record. Abdul Ghani Sheikh who claims to be the eye witness to the occurrence lodged the first information report (Ex. P-1) at 11-30 a.m. at the police station only about 200 feet away from theHigh Court was clearly in error in taking into consideration the contents of the statement recorded under s. 161, Cr. P.C. during the course of investigation for the purpose of finding corroboration of the statements made incourt.Once this part of the reasoning of the High Court is eliminated all that is left is the statement of Abdul Ghani Sheikh in court and his report Ex. P-1 made to the police. That report, it is not disputed, does not contain any description of the alleged culprit. Had the witness known the culprit earlier, one would have reasonably expected him to so state in the report. if, however, without knowing him earlier he had formed a distinct impression of the culprits looks and bearing so as to be able to identify him later, then also one would have expected this witness to give in the report the description of the culprit as seen by him so as to provide the investigating authorities with something tengible as guideline to start with the investigation. His identification in court without any previous identification at a test parade and without any description in Ex. P-1 to corroborate it, is far too slender a piece of evidence to base the appellants conviction thereon. So, Abdul Ghani Sheikhs evidence seems to us to be of no value in bringing home the offence to the appellant.In the opinion of the High Court the evidence of Abdul Ghani Sheikh and of Noor Hussain is corroborated by P.Ws. Abdul Hamid and Noor Mohammed Sheikh. This is what the High Courtevidence given by Abdul Ghani Sheikh the informant and also Noor Hussain, a resume of which has been given above is corroborated by Abdul Hamid and Noor---Mad. Sheikh PWs in all material particulars. All these witnesses, Noor Hussain, Abdul Hamid and Noor Mohd. have stated that they know the accused before the occurrence and they had occasion to see him before. They disclosed the name of the accused on the very date of occurence when they said that they heard his three companions shouting at him "Ramesh what are you doing, dont be mad, you will be involved." Ghulam Nabi Mir, S.I. P.W. has clearly stated that it was on the very day of occurrence that the name of Rameshwar Singh, accused, was disclosed by Abdul Hamid and by some otheragain, the High Court has committed the same error in seeking corroboration from the statements said to have been made to the police by Abdul Hussain and others during investigation. We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witnesses, According to Ch. Ghulam Nabi Mr. S.H.O., the appellants name was disclosed on the very day of the occurrence. There is no plausible reason discernible on the record as to why such steps were not taken if the appellants identity as a result of the disclosure of his name became known to the authorities the same day. The High Court appears to us not only to have erroneously disregarded the forms of legal process but has also failed to advert to important and vital aspects, thereby causing serious prejudice to the appellant. In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment.Let us now see if the evidence of Noor Hussain, Abdul Hamid and Noor Mohd. Sheikh in any way advances the case of the prosecution. Abdul Hamid (P.W. 2) who has a cycle shop about 9 or 10 yards from the Stadium chowk claims to have gone to see the match in question. When the P.A.C. young men are said to have turned the people out of the Stadium during the course of the trouble this witness also went out. He claims to have watched the entire occurrence from the roof of his shop through the window panes because he was afraid of being seen in the open lest he may also, be fired at. It is from there that he claims to have heard when the P.A.C. men addressed the appellant: "Have you turned mad ? Ramesh, have you turned mad This seems to us to be wholly unacceptable and it appears to us that these words have been introduced in the, evidence for the purpose of providing the missing link of identification of the appellant. Noor Mohd. Sheikh is the brother of Abdul Ghani Sheikh. He also did not know the appellant and he never saw him after the occurrence till he came to court, several months later. Though he claims to have given the description of the culprit to the police and to have also expressed his ability to identify him, he was for reasons not disclosed on the record, never made to identify the appellant at any test identification parade, , He also claims to have gone to the police station with Abdul Ghani Sheikh though the latter claims to have gone there all alone. Now, if he had actually heard the name of the appellant being shouted by the P.A.C. men as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the culprit was not disclosed to the police and not included in the report, Ex. P-1. Noor Hussain has also stated that three young men of the appellants unit came to the place of occurrence after the appellant had fired 8 or 9 shots and they shouted addressing the appellant: "Ramesh what are you doing, you will be implicated" and according to him they continued shouting these words for some time, before they secured the appellant and took him inside. In his cross- examination he has admitted that on the day of the occurrence no police officer asked him whether he was an eye witness. When he was approached by the police later he is stated to have told them: "The whole of the occurrence has taken place, outside the thana and you are not aware of it" Beyond this remark there was, according to him; no conversation between him and the police and indeed he asserts that no statement was taken from him on the day of the occurrence. In fact his position is that the statement in court was the only statement he had ever made relating to the occurrence. It is interesting to note that his statement before the police purporting to be under s. 161, Cr. P.C. is exhibited as D-6 and is dated October 7, 1967. We are wholly unable to place any reliance on the testimony of anyone of these witnesses, who seem to us to be clearly untruthful.Further, it appears from the evidence of C. L. Wasan (D.W. 2) who was again examined in the High Court that an informal identification parade of all the constables belonging to U.P. (P.A.C.) contingent had been held on October 7, 1967 in which the appellant was also present. Some members of the public were also there who were asked to identify the culprit but none of them were able to do so., We need not dilate on this evidence as there was no formal record of any such test identificationsignificant fact, however, which casts serious doubt on the truth of the story of disclosure of the appellants name to the police on October 7, is the admitted omission by Ch. Ghulam Nabi Mir, S.H.O. to summon the appellant for interrogation soon after the alleged discovery of his name. No convincing or even intelligible explanation is forthcoming for interrogating the other P.A.C. men on the 8th and 9th October. Such investigation can scarcely inspire confidence. | 1 | 4,991 | 1,983 | ### Instruction:
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to see him before. They disclosed the name of the accused on the very date of occurence when they said that they heard his three companions shouting at him "Ramesh what are you doing, dont be mad, you will be involved." Ghulam Nabi Mir, S.I. P.W. has clearly stated that it was on the very day of occurrence that the name of Rameshwar Singh, accused, was disclosed by Abdul Hamid and by some other witnesses."8. Here again, the High Court has committed the same error in seeking corroboration from the statements said to have been made to the police by Abdul Hussain and others during investigation. We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witnesses, According to Ch. Ghulam Nabi Mr. S.H.O., the appellants name was disclosed on the very day of the occurrence. There is no plausible reason discernible on the record as to why such steps were not taken if the appellants identity as a result of the disclosure of his name became known to the authorities the same day. The High Court appears to us not only to have erroneously disregarded the forms of legal process but has also failed to advert to important and vital aspects, thereby causing serious prejudice to the appellant. In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment.Let us now see if the evidence of Noor Hussain, Abdul Hamid and Noor Mohd. Sheikh in any way advances the case of the prosecution. Abdul Hamid (P.W. 2) who has a cycle shop about 9 or 10 yards from the Stadium chowk claims to have gone to see the match in question. When the P.A.C. young men are said to have turned the people out of the Stadium during the course of the trouble this witness also went out. He claims to have watched the entire occurrence from the roof of his shop through the window panes because he was afraid of being seen in the open lest he may also, be fired at. It is from there that he claims to have heard when the P.A.C. men addressed the appellant: "Have you turned mad ? Ramesh, have you turned mad This seems to us to be wholly unacceptable and it appears to us that these words have been introduced in the, evidence for the purpose of providing the missing link of identification of the appellant. Noor Mohd. Sheikh is the brother of Abdul Ghani Sheikh. He also did not know the appellant and he never saw him after the occurrence till he came to court, several months later. Though he claims to have given the description of the culprit to the police and to have also expressed his ability to identify him, he was for reasons not disclosed on the record, never made to identify the appellant at any test identification parade, , He also claims to have gone to the police station with Abdul Ghani Sheikh though the latter claims to have gone there all alone. Now, if he had actually heard the name of the appellant being shouted by the P.A.C. men as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the culprit was not disclosed to the police and not included in the report, Ex. P-1. Noor Hussain has also stated that three young men of the appellants unit came to the place of occurrence after the appellant had fired 8 or 9 shots and they shouted addressing the appellant: "Ramesh what are you doing, you will be implicated" and according to him they continued shouting these words for some time, before they secured the appellant and took him inside. In his cross- examination he has admitted that on the day of the occurrence no police officer asked him whether he was an eye witness. When he was approached by the police later he is stated to have told them: "The whole of the occurrence has taken place, outside the thana and you are not aware of it" Beyond this remark there was, according to him; no conversation between him and the police and indeed he asserts that no statement was taken from him on the day of the occurrence. In fact his position is that the statement in court was the only statement he had ever made relating to the occurrence. It is interesting to note that his statement before the police purporting to be under s. 161, Cr. P.C. is exhibited as D-6 and is dated October 7, 1967. We are wholly unable to place any reliance on the testimony of anyone of these witnesses, who seem to us to be clearly untruthful.Further, it appears from the evidence of C. L. Wasan (D.W. 2) who was again examined in the High Court that an informal identification parade of all the constables belonging to U.P. (P.A.C.) contingent had been held on October 7, 1967 in which the appellant was also present. Some members of the public were also there who were asked to identify the culprit but none of them were able to do so., We need not dilate on this evidence as there was no formal record of any such test identification parade.9. The significant fact, however, which casts serious doubt on the truth of the story of disclosure of the appellants name to the police on October 7, is the admitted omission by Ch. Ghulam Nabi Mir, S.H.O. to summon the appellant for interrogation soon after the alleged discovery of his name. No convincing or even intelligible explanation is forthcoming for interrogating the other P.A.C. men on the 8th and 9th October. Such investigation can scarcely inspire confidence.10.
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the occurrence and they had occasion to see him before. They disclosed the name of the accused on the very date of occurence when they said that they heard his three companions shouting at him "Ramesh what are you doing, dont be mad, you will be involved." Ghulam Nabi Mir, S.I. P.W. has clearly stated that it was on the very day of occurrence that the name of Rameshwar Singh, accused, was disclosed by Abdul Hamid and by some otheragain, the High Court has committed the same error in seeking corroboration from the statements said to have been made to the police by Abdul Hussain and others during investigation. We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witnesses, According to Ch. Ghulam Nabi Mr. S.H.O., the appellants name was disclosed on the very day of the occurrence. There is no plausible reason discernible on the record as to why such steps were not taken if the appellants identity as a result of the disclosure of his name became known to the authorities the same day. The High Court appears to us not only to have erroneously disregarded the forms of legal process but has also failed to advert to important and vital aspects, thereby causing serious prejudice to the appellant. In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment.Let us now see if the evidence of Noor Hussain, Abdul Hamid and Noor Mohd. Sheikh in any way advances the case of the prosecution. Abdul Hamid (P.W. 2) who has a cycle shop about 9 or 10 yards from the Stadium chowk claims to have gone to see the match in question. When the P.A.C. young men are said to have turned the people out of the Stadium during the course of the trouble this witness also went out. He claims to have watched the entire occurrence from the roof of his shop through the window panes because he was afraid of being seen in the open lest he may also, be fired at. It is from there that he claims to have heard when the P.A.C. men addressed the appellant: "Have you turned mad ? Ramesh, have you turned mad This seems to us to be wholly unacceptable and it appears to us that these words have been introduced in the, evidence for the purpose of providing the missing link of identification of the appellant. Noor Mohd. Sheikh is the brother of Abdul Ghani Sheikh. He also did not know the appellant and he never saw him after the occurrence till he came to court, several months later. Though he claims to have given the description of the culprit to the police and to have also expressed his ability to identify him, he was for reasons not disclosed on the record, never made to identify the appellant at any test identification parade, , He also claims to have gone to the police station with Abdul Ghani Sheikh though the latter claims to have gone there all alone. Now, if he had actually heard the name of the appellant being shouted by the P.A.C. men as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the culprit was not disclosed to the police and not included in the report, Ex. P-1. Noor Hussain has also stated that three young men of the appellants unit came to the place of occurrence after the appellant had fired 8 or 9 shots and they shouted addressing the appellant: "Ramesh what are you doing, you will be implicated" and according to him they continued shouting these words for some time, before they secured the appellant and took him inside. In his cross- examination he has admitted that on the day of the occurrence no police officer asked him whether he was an eye witness. When he was approached by the police later he is stated to have told them: "The whole of the occurrence has taken place, outside the thana and you are not aware of it" Beyond this remark there was, according to him; no conversation between him and the police and indeed he asserts that no statement was taken from him on the day of the occurrence. In fact his position is that the statement in court was the only statement he had ever made relating to the occurrence. It is interesting to note that his statement before the police purporting to be under s. 161, Cr. P.C. is exhibited as D-6 and is dated October 7, 1967. We are wholly unable to place any reliance on the testimony of anyone of these witnesses, who seem to us to be clearly untruthful.Further, it appears from the evidence of C. L. Wasan (D.W. 2) who was again examined in the High Court that an informal identification parade of all the constables belonging to U.P. (P.A.C.) contingent had been held on October 7, 1967 in which the appellant was also present. Some members of the public were also there who were asked to identify the culprit but none of them were able to do so., We need not dilate on this evidence as there was no formal record of any such test identificationsignificant fact, however, which casts serious doubt on the truth of the story of disclosure of the appellants name to the police on October 7, is the admitted omission by Ch. Ghulam Nabi Mir, S.H.O. to summon the appellant for interrogation soon after the alleged discovery of his name. No convincing or even intelligible explanation is forthcoming for interrogating the other P.A.C. men on the 8th and 9th October. Such investigation can scarcely inspire confidence.
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STATE BANK OF INDIA Vs. KRISHIDHAN SEEDS PRIVATE LIMITED | 18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 IBC enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 IBC. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section 7 IBC. (emphasis supplied) 11. An acknowledgement in a balance sheet without a qualification can be relied upon for the purpose of the proceedings under the IBC. This principle also emerges from the decision in Asset Reconstruction Company (supra), which noted the decisions in Sesh Nath Singh (supra) and Laxmi Pat Surana (supra). This Court held: 35. A perusal of the aforesaid sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgments made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills, that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgment of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act. 12. The decisions in Sesh Nath Singh (supra), Laxmi Pat Surana (supra) and Asset Reconstruction Company (supra) have subsequently been followed in numerous decisions of this Court delivered by two-Judge Benches, namely: (i) Dena Bank v C. Shivakumar Reddy (2021) 10 SCC 330 ; (ii) State Bank of India v Vibha Agro Tech Limited 2021 SCC OnLine SC 1297 ; (iii) Devas Multimedia Private Ltd. v Antrix Corporation Ltd. and Another 2022 SCC OnLine SC 46 ; and (iv) SVG Fashions Pvt. Ltd. (Earlier Known As SVG Fashions Ltd.) v Ritu Murli Manohar Goyal and Another 2022 SCC OnLine SC 373 . Besides the above decisions, there is a more recent decision of a three-Judge Bench of this Court in Rajendra Narottamdas Sheth and Another v Chandra Prakash Jain and Another 2021 SCC OnLine SC 843, where, speaking for the Bench, Justice L Nageswara Rao held: 25. We have already held that the burden of prima facie proving occurrence of the default and that the application filed under Section 7 of the Code is within the period of limitation, is entirely on the financial creditor. While the decision to admit an application under Section 7 is typically made on the basis of material furnished by the financial creditor, the Adjudicating Authority is not barred from examining the material that is placed on record by the corporate debtor to determine that such application is not beyond the period of limitation. Undoubtedly, there is sufficient material in the present case to justify enlargement of the extension period in accordance with Section 18 of the Limitation Act and such material has also been considered by the Adjudicating Authority before admitting the application under Section 7 of the Code. The plea of Section 18 of the Limitation Act not having been raised by the Financial Creditor in the application filed under Section 7 cannot come to the rescue of the Appellants in the facts of this case. It is clarified that the onus on the financial creditor, at the time of filing an application under Section 7, to prima facie demonstrate default with respect to a debt, which is not time-barred, is not sought to be diluted herein. In the present case, if the documents constituting acknowledgement of the debt beyond April, 2016 had not been brought on record by the Corporate Debtor, the application would have been fit for dismissal on the ground of lack of any plea by the Financial Creditor before the Adjudicating Authority with respect to extension of the limitation period and application of Section 18 of the Limitation Act. 13. In view of the above decisions, the position of law has been set at rest. Neither the NCLT nor the NCLAT had the benefit of adjudicating upon the factual controversy in the context of the decisions of this Court. The principles which emerge are that: (i) The provisions of Section 18 of the Limitation Act are not alien to and are applicable to proceedings under the IBC; and (ii) An acknowledgement in a balance sheet without a qualification can furnish a legitimate basis for determining as to whether the period of limitation would stand extended, so long as the acknowledgement was within a period of three years from the original date of default. 14. At this stage, we may also note that Mr Niranjan Reddy has relied upon documentary material to indicate that the acknowledgements of liability were within a period of three years from the date of default and, hence, the applicant filed by the appellant under Section 7 of the IBC was within limitation. Reliance has also been placed on the letter of revival dated 26 April 2015 and the offer of OTS on 6 November 2015. | 1[ds]8. The NCLT placed reliance on the judgment in V Padmakumar (supra). The decision in the above case has been specifically overruled in a judgment of a three-Judge Bench of this Court in Asset Reconstruction Company (India) Limited v Bishal Jaiswal and Another (2021) 6 SCC 366 (Asset Reconstruction Company) , where Justice R F Nariman, speaking for the Bench, held:46. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of NCLAT dated 12-3-2020.9. Apart from the above decision, it is also necessary to note that the provisions of Section 18 of the Limitation Act were held applicable to IBC proceedings by a twoJudge Bench of this Court in Sesh Nath Singh v Baidyabati Sheoraphuli Coop. Bank Ltd. (2021) 7 SCC 313 (Sesh Nath Singh) .10. While the observation in Sesh Nath Singh (supra) was obiter dicta, the matter has been set at rest in a decision of a three-Judge Bench of this Court in Laxmi Pat Surana v Union Bank of India and Another (2021) 8 SCC 481 (Laxmi Pat Surana) , where, speaking for the Bench, Justice A M Khanwilkar has held:42. Notably, the provisions of the Limitationhave been made applicable to the proceedings under the Code, as far as may be applicable. For, Sectionpredicates that the provisions of the Limitationshall, as far as may be, apply to the proceedings or appeals before the adjudicating authority, NCLAT, the DRT or the Debt Recovery Appellate Tribunal, as the case may be. After enactment of SectionIBC on 6-6-2018, validity whereof has been upheld by this Court, it is not open to contend that the limitation for filing application under SectionC would be limited to Article 137 of the Limitationand extension of prescribed period in certain cases could be only under Section 5 of the Limitation Act. There is no reason to exclude the effect of Section 18 of the Limitation Act to the proceedings initiated under the Code.43. Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as the date of default to enable the financial creditor to initiate action unders into play when the corporate debtor commits default. Sectiony uses the expression default — not the date of notifying the loan account of the corporate person as NPA. Further, the expression default has been defined in Sectiono mean non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. In cases where the corporate person had offered guarantee in respect of loan transaction, the right of the financial creditor to initiate action against such entity being a corporate debtor (corporate guarantor), would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of NPA but before the expiration of three years therefrom including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitationgets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 IBC enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section(emphasis supplied)11. An acknowledgement in a balance sheet without a qualification can be relied upon for the purpose of the proceedings under the IBC. This principle also emerges from the decision in Asset Reconstruction Company (supra), which noted the decisions in Sesh Nath Singh (supra) and Laxmi Pat Surana (supra). This Court held:35. A perusal of the aforesaid sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companiesis mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgments made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills, that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgment of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act.12. The decisions in Sesh Nath Singh (supra), Laxmi Pat Surana (supra) and Asset Reconstruction Company (supra) have subsequently been followed in numerous decisions of this Court delivered by two-Judge Benches, namely: (i) Dena Bank v C. Shivakumar Reddy (2021) 10 SCC 330 ; (ii) State Bank of India v Vibha Agro Tech Limited 2021 SCC OnLine SC 1297 ; (iii) Devas Multimedia Private Ltd. v Antrix Corporation Ltd. and Another 2022 SCC OnLine SC 46 ; and (iv) SVG Fashions Pvt. Ltd. (Earlier Known As SVG Fashions Ltd.) v Ritu Murli Manohar Goyal and Another 2022 SCC OnLine SC 373 . Besides the above decisions, there is a more recent decision of a three-Judge Bench of this Court in Rajendra Narottamdas Sheth and Another v Chandra Prakash Jain and Another 2021 SCC OnLine SC 843, where, speaking for the Bench, Justice L Nageswara Rao held:25. We have already held that the burden of prima facie proving occurrence of the default and that the application filed under Section 7 of the Code is within the period of limitation, is entirely on the financial creditor. While the decision to admit an application under Sections typically made on the basis of material furnished by the financial creditor, the Adjudicating Authority is not barred from examining the material that is placed on record by the corporate debtor to determine that such application is not beyond the period of limitation. Undoubtedly, there is sufficient material in the present case to justify enlargement of the extension period in accordance with Section 18 of the Limitation Act and such material has also been considered by the Adjudicating Authority before admitting the application under Section 7 of the Code. The plea of Section 18 of the Limitation Act not having been raised by the Financial Creditor in the application filed under Sectiont come to the rescue of the Appellants in the facts of this case. It is clarified that the onus on the financial creditor, at the time of filing an application under Sectiono prima facie demonstrate default with respect to a debt, which is not time-barred, is not sought to be diluted herein. In the present case, if the documents constituting acknowledgement of the debt beyond April, 2016 had not been brought on record by the Corporate Debtor, the application would have been fit for dismissal on the ground of lack of any plea by the Financial Creditor before the Adjudicating Authority with respect to extension of the limitation period and application of Section 18 of the Limitation Act.13. In view of the above decisions, the position of law has been set at rest. Neither the NCLT nor the NCLAT had the benefit of adjudicating upon the factual controversy in the context of the decisions of this Court. The principles which emerge are that:(i) The provisions of Section 18 of the Limitation Act are not alien to and are applicable to proceedings under the IBC; and(ii) An acknowledgement in a balance sheet without a qualification can furnish a legitimate basis for determining as to whether the period of limitation would stand extended, so long as the acknowledgement was within a period of three years from the original date of default. | 1 | 2,593 | 1,649 | ### 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.
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18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 IBC enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section 7 IBC. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section 7 IBC. (emphasis supplied) 11. An acknowledgement in a balance sheet without a qualification can be relied upon for the purpose of the proceedings under the IBC. This principle also emerges from the decision in Asset Reconstruction Company (supra), which noted the decisions in Sesh Nath Singh (supra) and Laxmi Pat Surana (supra). This Court held: 35. A perusal of the aforesaid sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgments made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills, that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgment of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act. 12. The decisions in Sesh Nath Singh (supra), Laxmi Pat Surana (supra) and Asset Reconstruction Company (supra) have subsequently been followed in numerous decisions of this Court delivered by two-Judge Benches, namely: (i) Dena Bank v C. Shivakumar Reddy (2021) 10 SCC 330 ; (ii) State Bank of India v Vibha Agro Tech Limited 2021 SCC OnLine SC 1297 ; (iii) Devas Multimedia Private Ltd. v Antrix Corporation Ltd. and Another 2022 SCC OnLine SC 46 ; and (iv) SVG Fashions Pvt. Ltd. (Earlier Known As SVG Fashions Ltd.) v Ritu Murli Manohar Goyal and Another 2022 SCC OnLine SC 373 . Besides the above decisions, there is a more recent decision of a three-Judge Bench of this Court in Rajendra Narottamdas Sheth and Another v Chandra Prakash Jain and Another 2021 SCC OnLine SC 843, where, speaking for the Bench, Justice L Nageswara Rao held: 25. We have already held that the burden of prima facie proving occurrence of the default and that the application filed under Section 7 of the Code is within the period of limitation, is entirely on the financial creditor. While the decision to admit an application under Section 7 is typically made on the basis of material furnished by the financial creditor, the Adjudicating Authority is not barred from examining the material that is placed on record by the corporate debtor to determine that such application is not beyond the period of limitation. Undoubtedly, there is sufficient material in the present case to justify enlargement of the extension period in accordance with Section 18 of the Limitation Act and such material has also been considered by the Adjudicating Authority before admitting the application under Section 7 of the Code. The plea of Section 18 of the Limitation Act not having been raised by the Financial Creditor in the application filed under Section 7 cannot come to the rescue of the Appellants in the facts of this case. It is clarified that the onus on the financial creditor, at the time of filing an application under Section 7, to prima facie demonstrate default with respect to a debt, which is not time-barred, is not sought to be diluted herein. In the present case, if the documents constituting acknowledgement of the debt beyond April, 2016 had not been brought on record by the Corporate Debtor, the application would have been fit for dismissal on the ground of lack of any plea by the Financial Creditor before the Adjudicating Authority with respect to extension of the limitation period and application of Section 18 of the Limitation Act. 13. In view of the above decisions, the position of law has been set at rest. Neither the NCLT nor the NCLAT had the benefit of adjudicating upon the factual controversy in the context of the decisions of this Court. The principles which emerge are that: (i) The provisions of Section 18 of the Limitation Act are not alien to and are applicable to proceedings under the IBC; and (ii) An acknowledgement in a balance sheet without a qualification can furnish a legitimate basis for determining as to whether the period of limitation would stand extended, so long as the acknowledgement was within a period of three years from the original date of default. 14. At this stage, we may also note that Mr Niranjan Reddy has relied upon documentary material to indicate that the acknowledgements of liability were within a period of three years from the date of default and, hence, the applicant filed by the appellant under Section 7 of the IBC was within limitation. Reliance has also been placed on the letter of revival dated 26 April 2015 and the offer of OTS on 6 November 2015.
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corporate person had offered guarantee in respect of loan transaction, the right of the financial creditor to initiate action against such entity being a corporate debtor (corporate guarantor), would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of NPA but before the expiration of three years therefrom including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitationgets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 IBC enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from time to time, for institution of the proceedings under Section. Further, the acknowledgment must be of a liability in respect of which the financial creditor can initiate action under Section(emphasis supplied)11. An acknowledgement in a balance sheet without a qualification can be relied upon for the purpose of the proceedings under the IBC. This principle also emerges from the decision in Asset Reconstruction Company (supra), which noted the decisions in Sesh Nath Singh (supra) and Laxmi Pat Surana (supra). This Court held:35. A perusal of the aforesaid sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companiesis mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgments made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills, that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgment of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act.12. The decisions in Sesh Nath Singh (supra), Laxmi Pat Surana (supra) and Asset Reconstruction Company (supra) have subsequently been followed in numerous decisions of this Court delivered by two-Judge Benches, namely: (i) Dena Bank v C. Shivakumar Reddy (2021) 10 SCC 330 ; (ii) State Bank of India v Vibha Agro Tech Limited 2021 SCC OnLine SC 1297 ; (iii) Devas Multimedia Private Ltd. v Antrix Corporation Ltd. and Another 2022 SCC OnLine SC 46 ; and (iv) SVG Fashions Pvt. Ltd. (Earlier Known As SVG Fashions Ltd.) v Ritu Murli Manohar Goyal and Another 2022 SCC OnLine SC 373 . Besides the above decisions, there is a more recent decision of a three-Judge Bench of this Court in Rajendra Narottamdas Sheth and Another v Chandra Prakash Jain and Another 2021 SCC OnLine SC 843, where, speaking for the Bench, Justice L Nageswara Rao held:25. We have already held that the burden of prima facie proving occurrence of the default and that the application filed under Section 7 of the Code is within the period of limitation, is entirely on the financial creditor. While the decision to admit an application under Sections typically made on the basis of material furnished by the financial creditor, the Adjudicating Authority is not barred from examining the material that is placed on record by the corporate debtor to determine that such application is not beyond the period of limitation. Undoubtedly, there is sufficient material in the present case to justify enlargement of the extension period in accordance with Section 18 of the Limitation Act and such material has also been considered by the Adjudicating Authority before admitting the application under Section 7 of the Code. The plea of Section 18 of the Limitation Act not having been raised by the Financial Creditor in the application filed under Sectiont come to the rescue of the Appellants in the facts of this case. It is clarified that the onus on the financial creditor, at the time of filing an application under Sectiono prima facie demonstrate default with respect to a debt, which is not time-barred, is not sought to be diluted herein. In the present case, if the documents constituting acknowledgement of the debt beyond April, 2016 had not been brought on record by the Corporate Debtor, the application would have been fit for dismissal on the ground of lack of any plea by the Financial Creditor before the Adjudicating Authority with respect to extension of the limitation period and application of Section 18 of the Limitation Act.13. In view of the above decisions, the position of law has been set at rest. Neither the NCLT nor the NCLAT had the benefit of adjudicating upon the factual controversy in the context of the decisions of this Court. The principles which emerge are that:(i) The provisions of Section 18 of the Limitation Act are not alien to and are applicable to proceedings under the IBC; and(ii) An acknowledgement in a balance sheet without a qualification can furnish a legitimate basis for determining as to whether the period of limitation would stand extended, so long as the acknowledgement was within a period of three years from the original date of default.
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M/S HINDON FORGE PVT. LTD Vs. THE STATE OF UTTAR PRADESH THR. DISTRICT MAGISTRATE GHAZIABAD | over of symbolic possession and therefore the creditor could not have transferred the secured assets to the auction purchaser. In any case, since ITC Ltd. was the purchaser of such property, it could only take recourse to the ordinary law for recovering physical possession. 47. We find nothing in the provisions of the Act that renders taking over of symbolic possession illegal. This is a well-known device in law. In fact, this court has, although in a different context, held in M.V.S. Manikayala Rao v. M. Narasimhaswami [AIR 1966 SC 470 ] that the delivery of symbolic possession amounted to an interruption of adverse possession of a party and the period of limitation for the application of Article 144 of the Limitation Act would start from such date of the delivery. 24. This judgment also speaks of the taking over of symbolic possession under the SARFAESI Act. The judgment then goes on to discuss whether a creditor could maintain an application for possession under section 14 of the Act once it takes over symbolic possession before the sale of the property to the auction purchaser. The Court referred to various authorities and arrived at the conclusion that a secured creditor remains a secured creditor when only constructive or symbolic possession is given, as the entire interest in the property not having been passed on to the secured creditor in the first place, the secured creditor in turn could not pass on the entire interest in the property to the auction purchaser. In this behalf, it is important to refer to section 8 of the Transfer of Property Act, 1882 which states as follows: 8. Operation of transfer.— Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. xxx xxx xxx Section 13(6) of the SARFAESI Act makes it clear that a different intention is so expressed by the Act, as any transfer of a secured asset after taking possession thereof, shall vest in the transferee all rights in the secured asset so transferred as if the transfer had been made by the owner of such secured asset. It is clear, therefore, that statutorily, under section 13(6), though only the lesser right of taking possession, constructive or physical, has taken place, yet the secured creditor may, by lease, sale or assignment, vest in the lessee or purchaser all rights in the secured asset as if the transfer had been made by the original owner of such secured asset. This aspect of the matter does not appear to have been noticed in the aforesaid judgment. The ultimate conclusion in the said judgment is, however, correct as a secured creditor remains a secured creditor even after possession is taken over as the fiction contained in section 13(6) does not convert the secured creditor into the owner of the asset, but merely vests complete title in the transferee of the asset once transfer takes place in accordance with rules 8 and 9 of the 2002 Rules. 25. We may also add that by a notification dated 17.10.2018, rule 8 has since been amended adding two sub-rules as follows: 3. In the said rules, in rule 8— (i) in sub-rule (6), for the proviso, the following proviso shall be substituted, namely:- Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in the Form given in Appendix IV-A to be published in two leading newspapers including one in vernacular language having wide circulation in the locality. ; (ii) for sub-rule (7), the following sub-rule shall be substituted, namely:– (7) every notice of sale shall be affixed on the conspicuous part of the immovable property and the authorised officer shall upload the detailed terms and conditions of the sale, on the web- site of the secured creditor, which shall include;(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price of the immovable secured assets below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) deposit of earnest money as may be stipulated by the secured creditor; (f) any other terms and conditions, which the authorized officer considers it necessary for a purchaser to know the nature and value of the property. Appendix IV-A which is now inserted by the said notification reads as follows: APPENDIX - IV-A [See proviso to rule 8 (6)] Sale notice for sale of immovable properties E-Auction Sale Notice for Sale of Immovable Assets under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with proviso to Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 Notice is hereby given to the public in general and in particular to the Borrower (s) and Guarantor (s) that the below described immovable property mortgaged/charged to the Secured Creditor, the constructive/physical ______________ (whichever is applicable) possession of which has been taken by the Authorised Officer of ______________ Secured Creditor, will be sold on As is where is, As is what is, and Whatever there is on ______________ (mention date of the sale), for recovery of Rs. due to the ______________ Secured Creditor from (mention name of the Borrower (s)) and ______________ (mention name of the Guarantor (s)). The reserve price will be Rs. ______________ and the earnest money deposit will be Rs. ______________ (Give short description of the immovable property with known encumbrances, if any) For detailed terms and conditions of the sale, please refer to the link provided in ______________ Secured Creditors website i.e. www. (give details of website)Date:Authorised OfficerPlace: | 1[ds]10. A reading of section 13 would make it clear that where a default in repayment of a secured debt or any instalment thereof is made by a borrower, the secured creditor may require the borrower, by notice in writing, to discharge in full his liabilities to the secured creditor within 60 days from the date of notice. It is only when the borrower fails to do so that the secured creditor may have recourse to the provisions contained in section 13(4) of the Act. Section) was inserted by the 2004 Amendment Act, pursuant to Mardia Chemicals (supra), making it clear that if on receipt of the notice under section 13(2), the borrower makes a representation or raises an objection, the secured creditor is to consider such representation or objection and give reasons for nonacceptance. The proviso to section) makes it clear that this would not confer upon the borrower any right to prefer an application to the Debts Recovery Tribunal under section 17 as at this stage no action has yet been taken under section 13(4).12. Section 19, which is strongly relied upon by Shri Ranjit Kumar, also makes it clear that compensation is receivable under section 19 only when possession of secured assets is not in accordance with the provision of this Act and rules made thereunder. 24 The scheme of section 13(4) read with rule 8(1) therefore makes it clear that the delivery of a possession notice together with affixation on the property and publication is one mode of taking possession under section 13(4). This being the case, it is clear that section 13(6) kicks in as soon as this is done as the expression used in section 13(6) is after taking possession. Also, it is clear that rule 8(5) to 8(8) also kick in as soon as possession is taken under rule 8(1) and 8(2). The statutory scheme, therefore, in the present case is that once possession is taken under rule 8(1) and 8(2) read with section 13(4)(a), section 17 gets attracted, as this is one of the measures referred to in section 13(4) that has been taken by the secured creditor under Chapter III.14. The argument made by the learned counsel for the respondents that section 13(4)(a) has to be read in the light ofs (b) and (c) is therefore incorrect and must be rejected. Undere (c), a person is appointed as manager to manage the secured assets the possession of which has been taken over by the secured creditor only under rule 8(3). Further, the rule of noscitur a sociis cannot apply.e (b) speaks of taking over management of the business of the borrower which is completely different from taking over possession of a secured asset of the borrower. Equally,e (d) does not speak of taking over either management or possession, but only speaks of paying the secured creditor so much of the money as is sufficient to pay off the secured debt. These arguments must therefore be rejected.17. Another argument made by learned senior counsel for the respondents is that if we were to accept the construction of section 13(4) argued by the appellants, the object of the Act would beAs has been pointed out hereinabove in the Statement of Objects and Reasons of the original enactment, paragraphs 2(i) and 2(j) make it clear that the rights of the secured creditor are to be exercised by officers authorised in this behalf in accordance with the rules made by the Central Government. Further, an appeal against the action of any bank or financial institution is provided to the concerned Debts Recovery Tribunal. It can thus be seen that though the rights of a secured creditor may be exercised by such creditor outside the court process, yet such rights must be in conformity with the Act. If not in conformity with the Act, such action is liable to be interfered with by the Debts Recovery Tribunal in an application made by the debtor/borrower. Thus, it can be seen that the object of the original enactment also includes secured creditors acting in conformity with the provisions of the Act to realise the secured debt which, if not done, gives recourse to the borrower to get relief from the Debts Recovery Tribunal. Equally, as has been seen hereinabove, the Statement of Objects and Reasons of the Amendment Act of 2004 also make it clear that not only do reasons have to be given for not accepting objections of the borrower under section, but that applications may be made before the Debts Recovery Tribunal without making the oneroust of 75% which was struck down by this Court in Mardia Chemicals (supra). The object of the Act, therefore, is also to enable the borrower to approach a quasijudicial forum in case the secured creditor, while taking any of the measures under section 13(4), does not follow the provisions of the Act in so doing. Take for example a case in which a secured creditor takes possession under rule 8(1) and 8(2) before the 60 days period prescribed under section 13(2) is over. The borrower does not have to wait until actual physical possession is taken (this may never happen as after possession is taken under rule 8(1) and 8(2), the secured creditor may go ahead and sell the asset). The object of providing a remedy against the wrongful action of a secured creditor to a borrower will be stultified if the borrower has to wait until a sale notice is issued, or worse still, until a sale actually takes place. It is clear, therefore, that one of the objects of the Act, as carried out by rule 8(1) and 8(2) must also be subserved, namely, to provide the borrower with instant recourse to al body in case of wrongful action taken by the secured creditor.18. Another argument that was raised by learned senior counsel for the respondents is that the taking of possession under section 13(4)(a) must mean actual physical possession or otherwise, no transfer by way of lease can be made as possession of the secured asset would continue to be with the borrower when only symbolic possession isargument also must be rejected for the reason that what is referred to in section 13(4)(a) is the right to transfer by way of lease for realising the secured asset. One way of realising the secured asset is when physical possession is taken over and a lease of the same is made to a third party. When possession is taken under rule 8(1) and 8(2), the asset can be realised by way of assignment or sale, as has been held by us hereinabove. This being the case, it is clear that the right to transfer could be by way of lease, assignment or sale, depending upon which mode of transfer the secured creditor chooses for realising the secured asset. Also, the right to transfer by way of assignment or sale can only be exercised in accordance with rules 8 and 9 of the 2002 Rules which require variouss to be met before sale or assignment can be effected. Equally, transfer by way of lease can be done in future in cases where actual physical possession is taken of the secured asset after possession is taken under rule 8(1) and 8(2) at a future point in time. If no such actual physical possession is taken, the right to transfer by way of assignment or sale for realising the secured asset continues. This argument must also, therefore, be rejected.19. Shri Ashish Dholakia, learned Advocate, appearing for the intervenor, State Bank of India, argued that if we were to upset the Full Bench judgment, there would be little difference between the Recovery of Debts Act and the SARFAESI Act as banks would not be able to recover their debts by selling properties outside the court process without constant interference by the Debts Recovery Tribunal.We are of the view that this argument has no legs to stand on for the reason that banks and financial institutions can recover their debts by selling properties outside the court process under the SARFAESI Act by adhering to the statutory conditions laid down by the said Act. It is only when such statutory conditions are not adhered to that the Debts Recovery Tribunal comes in at the behest of the borrower. It is needless to add that under the Recovery of Debts Act, banks/financial institutions could not recover their debts without intervention of the Debts Recovery Tribunal, which the SARFAESI Act has greatly improved upon, the only caveat being that this must be done by the secured creditor following the drill of the SARFAESI Act and rules made thereunder. Shri Dholakia then referred to and relied upon section 3 of the Transfer of Property Act, 1882. Under the said section, a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.We fail to understand what relevance Explanation II could possibly have for a completely different statutory setting, namely, that of the SARFAESI Act and the 2002 Rules thereunder. For the purpose of the Transfer of Property Act, a person acquiring immovable property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. For the purpose of the SARFAESI Act read with the 2002 Rules, the taking of possession by a secured creditor of the secured asset of the borrower would include taking of possession in any of the modes prescribed under rule 8, as has been held by us hereinabove. This argument must also, therefore, be rejected.If the whole of paragraph 74 is read together with the extracted passage, it becomes clear that what is referred to in the extracted passage is the procedure provided by rule 8(3). It is clear that the authorised officers powers, once possession is taken under rule 8(3), include taking of steps for preservation and protection of the secured assets which is referred to in the extracted portion. Thus, the final conclusion by the Bench, though general in nature, is really referable to possession that is taken under rule 8(3) of the 2002 Rules. Whether possession taken under rule 8(1) and 8(2) is called symbolic possession or statutory possession, the fact remains that rule 8(1) and rule 8(2) specifically provide for a particular mode of possession taken under section 13(4)(a) of the Act. This cannot be wished away by an observation made by this Court in a completely different context in order to repel an extreme argument. This Court was only of the opinion that the extreme argument made, as reflected in paragraph 71 of the judgment, would have to be rejected. This judgment therefore does not deal with the problem before us: namely, whether a section 17(1) application is maintainable once possession has been taken in the manner specified under rule 8(1) of the 2002 Rules.24. This judgment also speaks of the taking over of symbolic possession under the SARFAESI Act. The judgment then goes on to discuss whether a creditor could maintain an application for possession under section 14 of the Act once it takes over symbolic possession before the sale of the property to the auction purchaser. The Court referred to various authorities and arrived at the conclusion that a secured creditor remains a secured creditor when only constructive or symbolic possession is given, as the entire interest in the property not having been passed on to the secured creditor in the first place, the secured creditor in turn could not pass on the entire interest in the property to the auction purchaser.Section 13(6) of the SARFAESI Act makes it clear that a different intention is so expressed by the Act, as any transfer of a secured asset after taking possession thereof, shall vest in the transferee all rights in the secured asset so transferred as if the transfer had been made by the owner of such secured asset. It is clear, therefore, that statutorily, under section 13(6), though only the lesser right of taking possession, constructive or physical, has taken place, yet the secured creditor may, by lease, sale or assignment, vest in the lessee or purchaser all rights in the secured asset as if the transfer had been made by the original owner of such secured asset. This aspect of the matter does not appear to have been noticed in the aforesaid judgment. The ultimate conclusion in the said judgment is, however, correct as a secured creditor remains a secured creditor even after possession is taken over as the fiction contained in section 13(6) does not convert the secured creditor into the owner of the asset, but merely vests complete title in the transferee of the asset once transfer takes place in accordance with rules 8 and 9 of the 2002 Rules. | 1 | 18,875 | 2,502 | ### 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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over of symbolic possession and therefore the creditor could not have transferred the secured assets to the auction purchaser. In any case, since ITC Ltd. was the purchaser of such property, it could only take recourse to the ordinary law for recovering physical possession. 47. We find nothing in the provisions of the Act that renders taking over of symbolic possession illegal. This is a well-known device in law. In fact, this court has, although in a different context, held in M.V.S. Manikayala Rao v. M. Narasimhaswami [AIR 1966 SC 470 ] that the delivery of symbolic possession amounted to an interruption of adverse possession of a party and the period of limitation for the application of Article 144 of the Limitation Act would start from such date of the delivery. 24. This judgment also speaks of the taking over of symbolic possession under the SARFAESI Act. The judgment then goes on to discuss whether a creditor could maintain an application for possession under section 14 of the Act once it takes over symbolic possession before the sale of the property to the auction purchaser. The Court referred to various authorities and arrived at the conclusion that a secured creditor remains a secured creditor when only constructive or symbolic possession is given, as the entire interest in the property not having been passed on to the secured creditor in the first place, the secured creditor in turn could not pass on the entire interest in the property to the auction purchaser. In this behalf, it is important to refer to section 8 of the Transfer of Property Act, 1882 which states as follows: 8. Operation of transfer.— Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. xxx xxx xxx Section 13(6) of the SARFAESI Act makes it clear that a different intention is so expressed by the Act, as any transfer of a secured asset after taking possession thereof, shall vest in the transferee all rights in the secured asset so transferred as if the transfer had been made by the owner of such secured asset. It is clear, therefore, that statutorily, under section 13(6), though only the lesser right of taking possession, constructive or physical, has taken place, yet the secured creditor may, by lease, sale or assignment, vest in the lessee or purchaser all rights in the secured asset as if the transfer had been made by the original owner of such secured asset. This aspect of the matter does not appear to have been noticed in the aforesaid judgment. The ultimate conclusion in the said judgment is, however, correct as a secured creditor remains a secured creditor even after possession is taken over as the fiction contained in section 13(6) does not convert the secured creditor into the owner of the asset, but merely vests complete title in the transferee of the asset once transfer takes place in accordance with rules 8 and 9 of the 2002 Rules. 25. We may also add that by a notification dated 17.10.2018, rule 8 has since been amended adding two sub-rules as follows: 3. In the said rules, in rule 8— (i) in sub-rule (6), for the proviso, the following proviso shall be substituted, namely:- Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in the Form given in Appendix IV-A to be published in two leading newspapers including one in vernacular language having wide circulation in the locality. ; (ii) for sub-rule (7), the following sub-rule shall be substituted, namely:– (7) every notice of sale shall be affixed on the conspicuous part of the immovable property and the authorised officer shall upload the detailed terms and conditions of the sale, on the web- site of the secured creditor, which shall include;(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price of the immovable secured assets below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) deposit of earnest money as may be stipulated by the secured creditor; (f) any other terms and conditions, which the authorized officer considers it necessary for a purchaser to know the nature and value of the property. Appendix IV-A which is now inserted by the said notification reads as follows: APPENDIX - IV-A [See proviso to rule 8 (6)] Sale notice for sale of immovable properties E-Auction Sale Notice for Sale of Immovable Assets under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with proviso to Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 Notice is hereby given to the public in general and in particular to the Borrower (s) and Guarantor (s) that the below described immovable property mortgaged/charged to the Secured Creditor, the constructive/physical ______________ (whichever is applicable) possession of which has been taken by the Authorised Officer of ______________ Secured Creditor, will be sold on As is where is, As is what is, and Whatever there is on ______________ (mention date of the sale), for recovery of Rs. due to the ______________ Secured Creditor from (mention name of the Borrower (s)) and ______________ (mention name of the Guarantor (s)). The reserve price will be Rs. ______________ and the earnest money deposit will be Rs. ______________ (Give short description of the immovable property with known encumbrances, if any) For detailed terms and conditions of the sale, please refer to the link provided in ______________ Secured Creditors website i.e. www. (give details of website)Date:Authorised OfficerPlace:
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8 and 9 of the 2002 Rules which require variouss to be met before sale or assignment can be effected. Equally, transfer by way of lease can be done in future in cases where actual physical possession is taken of the secured asset after possession is taken under rule 8(1) and 8(2) at a future point in time. If no such actual physical possession is taken, the right to transfer by way of assignment or sale for realising the secured asset continues. This argument must also, therefore, be rejected.19. Shri Ashish Dholakia, learned Advocate, appearing for the intervenor, State Bank of India, argued that if we were to upset the Full Bench judgment, there would be little difference between the Recovery of Debts Act and the SARFAESI Act as banks would not be able to recover their debts by selling properties outside the court process without constant interference by the Debts Recovery Tribunal.We are of the view that this argument has no legs to stand on for the reason that banks and financial institutions can recover their debts by selling properties outside the court process under the SARFAESI Act by adhering to the statutory conditions laid down by the said Act. It is only when such statutory conditions are not adhered to that the Debts Recovery Tribunal comes in at the behest of the borrower. It is needless to add that under the Recovery of Debts Act, banks/financial institutions could not recover their debts without intervention of the Debts Recovery Tribunal, which the SARFAESI Act has greatly improved upon, the only caveat being that this must be done by the secured creditor following the drill of the SARFAESI Act and rules made thereunder. Shri Dholakia then referred to and relied upon section 3 of the Transfer of Property Act, 1882. Under the said section, a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.We fail to understand what relevance Explanation II could possibly have for a completely different statutory setting, namely, that of the SARFAESI Act and the 2002 Rules thereunder. For the purpose of the Transfer of Property Act, a person acquiring immovable property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. For the purpose of the SARFAESI Act read with the 2002 Rules, the taking of possession by a secured creditor of the secured asset of the borrower would include taking of possession in any of the modes prescribed under rule 8, as has been held by us hereinabove. This argument must also, therefore, be rejected.If the whole of paragraph 74 is read together with the extracted passage, it becomes clear that what is referred to in the extracted passage is the procedure provided by rule 8(3). It is clear that the authorised officers powers, once possession is taken under rule 8(3), include taking of steps for preservation and protection of the secured assets which is referred to in the extracted portion. Thus, the final conclusion by the Bench, though general in nature, is really referable to possession that is taken under rule 8(3) of the 2002 Rules. Whether possession taken under rule 8(1) and 8(2) is called symbolic possession or statutory possession, the fact remains that rule 8(1) and rule 8(2) specifically provide for a particular mode of possession taken under section 13(4)(a) of the Act. This cannot be wished away by an observation made by this Court in a completely different context in order to repel an extreme argument. This Court was only of the opinion that the extreme argument made, as reflected in paragraph 71 of the judgment, would have to be rejected. This judgment therefore does not deal with the problem before us: namely, whether a section 17(1) application is maintainable once possession has been taken in the manner specified under rule 8(1) of the 2002 Rules.24. This judgment also speaks of the taking over of symbolic possession under the SARFAESI Act. The judgment then goes on to discuss whether a creditor could maintain an application for possession under section 14 of the Act once it takes over symbolic possession before the sale of the property to the auction purchaser. The Court referred to various authorities and arrived at the conclusion that a secured creditor remains a secured creditor when only constructive or symbolic possession is given, as the entire interest in the property not having been passed on to the secured creditor in the first place, the secured creditor in turn could not pass on the entire interest in the property to the auction purchaser.Section 13(6) of the SARFAESI Act makes it clear that a different intention is so expressed by the Act, as any transfer of a secured asset after taking possession thereof, shall vest in the transferee all rights in the secured asset so transferred as if the transfer had been made by the owner of such secured asset. It is clear, therefore, that statutorily, under section 13(6), though only the lesser right of taking possession, constructive or physical, has taken place, yet the secured creditor may, by lease, sale or assignment, vest in the lessee or purchaser all rights in the secured asset as if the transfer had been made by the original owner of such secured asset. This aspect of the matter does not appear to have been noticed in the aforesaid judgment. The ultimate conclusion in the said judgment is, however, correct as a secured creditor remains a secured creditor even after possession is taken over as the fiction contained in section 13(6) does not convert the secured creditor into the owner of the asset, but merely vests complete title in the transferee of the asset once transfer takes place in accordance with rules 8 and 9 of the 2002 Rules.
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S. KUMAR(DEAD) Vs. UNITED INDIA INSURANCE CO. LTD. | 4 examined him and gave disability certificate for 50% for the damage caused to his scrotum. There is also no acceptable proof that because of this accident, his marital life was affected. For the foregoing discussions, we are quite unable to accept that the claimant has sustained 95% disability. There is no proof with regard to permanent disability caused to the claimant and he was deprived of his attending even to his normal work. Of course, he has sustained fracture on his thigh and other injuries...?8. The High Court also reduced the rate of interest as awarded by the Tribunal @ 15% p.a. and found it appropriate to award interest @ 9% p.a. with reference to the decision of this Court in the case of Smt. Kaushnuma Begum v. New India Assurance Co. Ltd. and Ors. : 2001 (2) SCC 9. 9. Seeking to assail the judgment of the High Court whereby, the amount of compensation awarded by the Tribunal has been reduced substantially, learned counsel for the appellant has strenuously argued that the High Court has committed a serious error in reducing the quantum of compensation by disbelieving the testimony of doctors who had thoroughly examined and treated the appellant. Learned counsel would argue that despite there being clear proof of multiple injuries suffered by the appellant and his long drawn treatment, the High Court has gone too restrictive in not awarding any amount towards medicines and in reducing drastically the amount of compensation towards disablement, loss of earning capacity and pain and sufferings. On the other hand, learned counsel for the contesting respondent has duly supported the judgment of the High Court.10. Having heard learned counsel for the parties and having examined the record, we are satisfied that the High Court has made downward revision of the quantum of compensation awarded by the Tribunal for cogent and convincing reasons; and in the ultimate analysis, the amount awarded by the High Court cannot be said to be too low or grossly inadequate so as to call for interference by this Court.11. On a bare look at the award of the Tribunal, it is but apparent that the Tribunal merely summed up the alleged 45% permanent partial disablement of the appellant, as initially certified by PW-1 (who had examined him immediately after the accident) with 50% permanent partial disablement of the appellant, as later on certified by PW-4 (who had allegedly examined him 2½ years after the accident) and, in this manner, assessed the disablement to the extent of 95%. The approach of the Tribunal had been suffering from obvious errors and infirmity inasmuch as there was neither any basis nor any reason to sum up the percentage of disablement stated by the two doctors and to take it to be a case of 95% permanent partial disablement. Moreover, the Tribunal had totally failed to consider that the suggestions about injury to the skull as also injury to the scrotum were falsified by the testimony of the doctor PW-1, who had found the only injury being that of fracture of left thigh bone. The said doctor PW-1 specifically stated that the claimant did not tell him about any other injury except the one on the left hip; and that the claimant did not sustain any injury on his head. It appears from the testimony of the claimant-appellant that he allegedly took treatment as regards scrotum in the months of November-December 1992, but there is no evidence on record to co-relate any such ailment or deformity concerning scrotum with the accident in question. Therefore, in our view, the High Court has been justified in rejecting the case of 95% permanent partial disablement and the suggestions about the injuries other than that on the left thigh bone of the appellant.12. Moreover, a relevant feature of this case gets noticed per force and in view of indisputable facts available on record. The claimant-appellant overtly suggested in the claim application that he had suffered injuries to his private parts and at the age of 25 years, such injuries resulted in his inability to have the bliss of marital life. The appellant has, unfortunately, expired during the pendency of this appeal and his legal representatives, being his wife, mother and three children are substituted as appellants in his place. The very extent of the family left behind by the appellant, inclusive of his wife and three children, obviously falsify his suggestions about inability of having marital life. We do not wish to elaborate further on this aspect of the matter; suffice it to observe for the present purpose that the case of excessive injuries and disablement, as projected by the claimant-appellant with reference to the testimony of PW-4 was bound to be, and has rightly been, rejected by the High Court.13. Coming to the question of just compensation, though it is noticed that the High Court has substantially reduced the amount of compensation awarded by the Tribunal but then, such a reduction was the natural consequence of rejection of the case of 95% disablement. The High Court has, otherwise, examined the entire evidence on record and, in the ultimate analysis, the amount awarded by the High Court at Rs. 2,11,060/- cannot be said to be too low or grossly inadequate on the facts and in the circumstances of this case. In this view of the matter, some restriction by the High Court towards loss of earning or disallowance of expenses of medicines, do not make out a case for interference because, as observed, the ultimate award amount is not grossly inadequate in the given set of facts and circumstances. As regards interest, the Tribunal had been rather generous in awarding the same at an exorbitant rate of 15% p.a. that was liable to be reduced. In fact, the High Court has yet allowed a comparatively higher rate of interest at 9% p.a. We find absolutely no reason to consider any upward revision in the amount of compensation awarded in this case by the High Court. | 0[ds]10. Having heard learned counsel for the parties and having examined the record, we are satisfied that the High Court has made downward revision of the quantum of compensation awarded by the Tribunal for cogent and convincing reasons; and in the ultimate analysis, the amount awarded by the High Court cannot be said to be too low or grossly inadequate so as to call for interference by this Court.On a bare look at the award of the Tribunal, it is but apparent that the Tribunal merely summed up the alleged 45% permanent partial disablement of the appellant, as initially certified by PW-1 (who had examined him immediately after the accident) with 50% permanent partial disablement of the appellant, as later on certified by PW-4 (who had allegedly examined him 2½ years after the accident) and, in this manner, assessed the disablement to the extent of 95%. The approach of the Tribunal had been suffering from obvious errors and infirmity inasmuch as there was neither any basis nor any reason to sum up the percentage of disablement stated by the two doctors and to take it to be a case of 95% permanent partial disablement. Moreover, the Tribunal had totally failed to consider that the suggestions about injury to the skull as also injury to the scrotum were falsified by the testimony of the doctor PW-1, who had found the only injury being that of fracture of left thigh bone. The said doctor PW-1 specifically stated that the claimant did not tell him about any other injury except the one on the left hip; and that the claimant did not sustain any injury on his head. It appears from the testimony of the claimant-appellant that he allegedly took treatment as regards scrotum in the months of November-December 1992, but there is no evidence on record to co-relate any such ailment or deformity concerning scrotum with the accident in question. Therefore, in our view, the High Court has been justified in rejecting the case of 95% permanent partial disablement and the suggestions about the injuries other than that on the left thigh bone of the appellant.Moreover, a relevant feature of this case gets noticed per force and in view of indisputable facts available on record. The claimant-appellant overtly suggested in the claim application that he had suffered injuries to his private parts and at the age of 25 years, such injuries resulted in his inability to have the bliss of marital life. The appellant has, unfortunately, expired during the pendency of this appeal and his legal representatives, being his wife, mother and three children are substituted as appellants in his place. The very extent of the family left behind by the appellant, inclusive of his wife and three children, obviously falsify his suggestions about inability of having marital life. We do not wish to elaborate further on this aspect of the matter; suffice it to observe for the present purpose that the case of excessive injuries and disablement, as projected by the claimant-appellant with reference to the testimony of PW-4 was bound to be, and has rightly been, rejected by the High Court.Coming to the question of just compensation, though it is noticed that the High Court has substantially reduced the amount of compensation awarded by the Tribunal but then, such a reduction was the natural consequence of rejection of the case of 95% disablement. The High Court has, otherwise, examined the entire evidence on record and, in the ultimate analysis, the amount awarded by the High Court at Rs. 2,11,060/- cannot be said to be too low or grossly inadequate on the facts and in the circumstances of this case. In this view of the matter, some restriction by the High Court towards loss of earning or disallowance of expenses of medicines, do not make out a case for interference because, as observed, the ultimate award amount is not grossly inadequate in the given set of facts and circumstances. As regards interest, the Tribunal had been rather generous in awarding the same at an exorbitant rate of 15% p.a. that was liable to be reduced. In fact, the High Court has yet allowed a comparatively higher rate of interest at 9% p.a. We find absolutely no reason to consider any upward revision in the amount of compensation awarded in this case by the High Court. | 0 | 2,567 | 798 | ### 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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4 examined him and gave disability certificate for 50% for the damage caused to his scrotum. There is also no acceptable proof that because of this accident, his marital life was affected. For the foregoing discussions, we are quite unable to accept that the claimant has sustained 95% disability. There is no proof with regard to permanent disability caused to the claimant and he was deprived of his attending even to his normal work. Of course, he has sustained fracture on his thigh and other injuries...?8. The High Court also reduced the rate of interest as awarded by the Tribunal @ 15% p.a. and found it appropriate to award interest @ 9% p.a. with reference to the decision of this Court in the case of Smt. Kaushnuma Begum v. New India Assurance Co. Ltd. and Ors. : 2001 (2) SCC 9. 9. Seeking to assail the judgment of the High Court whereby, the amount of compensation awarded by the Tribunal has been reduced substantially, learned counsel for the appellant has strenuously argued that the High Court has committed a serious error in reducing the quantum of compensation by disbelieving the testimony of doctors who had thoroughly examined and treated the appellant. Learned counsel would argue that despite there being clear proof of multiple injuries suffered by the appellant and his long drawn treatment, the High Court has gone too restrictive in not awarding any amount towards medicines and in reducing drastically the amount of compensation towards disablement, loss of earning capacity and pain and sufferings. On the other hand, learned counsel for the contesting respondent has duly supported the judgment of the High Court.10. Having heard learned counsel for the parties and having examined the record, we are satisfied that the High Court has made downward revision of the quantum of compensation awarded by the Tribunal for cogent and convincing reasons; and in the ultimate analysis, the amount awarded by the High Court cannot be said to be too low or grossly inadequate so as to call for interference by this Court.11. On a bare look at the award of the Tribunal, it is but apparent that the Tribunal merely summed up the alleged 45% permanent partial disablement of the appellant, as initially certified by PW-1 (who had examined him immediately after the accident) with 50% permanent partial disablement of the appellant, as later on certified by PW-4 (who had allegedly examined him 2½ years after the accident) and, in this manner, assessed the disablement to the extent of 95%. The approach of the Tribunal had been suffering from obvious errors and infirmity inasmuch as there was neither any basis nor any reason to sum up the percentage of disablement stated by the two doctors and to take it to be a case of 95% permanent partial disablement. Moreover, the Tribunal had totally failed to consider that the suggestions about injury to the skull as also injury to the scrotum were falsified by the testimony of the doctor PW-1, who had found the only injury being that of fracture of left thigh bone. The said doctor PW-1 specifically stated that the claimant did not tell him about any other injury except the one on the left hip; and that the claimant did not sustain any injury on his head. It appears from the testimony of the claimant-appellant that he allegedly took treatment as regards scrotum in the months of November-December 1992, but there is no evidence on record to co-relate any such ailment or deformity concerning scrotum with the accident in question. Therefore, in our view, the High Court has been justified in rejecting the case of 95% permanent partial disablement and the suggestions about the injuries other than that on the left thigh bone of the appellant.12. Moreover, a relevant feature of this case gets noticed per force and in view of indisputable facts available on record. The claimant-appellant overtly suggested in the claim application that he had suffered injuries to his private parts and at the age of 25 years, such injuries resulted in his inability to have the bliss of marital life. The appellant has, unfortunately, expired during the pendency of this appeal and his legal representatives, being his wife, mother and three children are substituted as appellants in his place. The very extent of the family left behind by the appellant, inclusive of his wife and three children, obviously falsify his suggestions about inability of having marital life. We do not wish to elaborate further on this aspect of the matter; suffice it to observe for the present purpose that the case of excessive injuries and disablement, as projected by the claimant-appellant with reference to the testimony of PW-4 was bound to be, and has rightly been, rejected by the High Court.13. Coming to the question of just compensation, though it is noticed that the High Court has substantially reduced the amount of compensation awarded by the Tribunal but then, such a reduction was the natural consequence of rejection of the case of 95% disablement. The High Court has, otherwise, examined the entire evidence on record and, in the ultimate analysis, the amount awarded by the High Court at Rs. 2,11,060/- cannot be said to be too low or grossly inadequate on the facts and in the circumstances of this case. In this view of the matter, some restriction by the High Court towards loss of earning or disallowance of expenses of medicines, do not make out a case for interference because, as observed, the ultimate award amount is not grossly inadequate in the given set of facts and circumstances. As regards interest, the Tribunal had been rather generous in awarding the same at an exorbitant rate of 15% p.a. that was liable to be reduced. In fact, the High Court has yet allowed a comparatively higher rate of interest at 9% p.a. We find absolutely no reason to consider any upward revision in the amount of compensation awarded in this case by the High Court.
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10. Having heard learned counsel for the parties and having examined the record, we are satisfied that the High Court has made downward revision of the quantum of compensation awarded by the Tribunal for cogent and convincing reasons; and in the ultimate analysis, the amount awarded by the High Court cannot be said to be too low or grossly inadequate so as to call for interference by this Court.On a bare look at the award of the Tribunal, it is but apparent that the Tribunal merely summed up the alleged 45% permanent partial disablement of the appellant, as initially certified by PW-1 (who had examined him immediately after the accident) with 50% permanent partial disablement of the appellant, as later on certified by PW-4 (who had allegedly examined him 2½ years after the accident) and, in this manner, assessed the disablement to the extent of 95%. The approach of the Tribunal had been suffering from obvious errors and infirmity inasmuch as there was neither any basis nor any reason to sum up the percentage of disablement stated by the two doctors and to take it to be a case of 95% permanent partial disablement. Moreover, the Tribunal had totally failed to consider that the suggestions about injury to the skull as also injury to the scrotum were falsified by the testimony of the doctor PW-1, who had found the only injury being that of fracture of left thigh bone. The said doctor PW-1 specifically stated that the claimant did not tell him about any other injury except the one on the left hip; and that the claimant did not sustain any injury on his head. It appears from the testimony of the claimant-appellant that he allegedly took treatment as regards scrotum in the months of November-December 1992, but there is no evidence on record to co-relate any such ailment or deformity concerning scrotum with the accident in question. Therefore, in our view, the High Court has been justified in rejecting the case of 95% permanent partial disablement and the suggestions about the injuries other than that on the left thigh bone of the appellant.Moreover, a relevant feature of this case gets noticed per force and in view of indisputable facts available on record. The claimant-appellant overtly suggested in the claim application that he had suffered injuries to his private parts and at the age of 25 years, such injuries resulted in his inability to have the bliss of marital life. The appellant has, unfortunately, expired during the pendency of this appeal and his legal representatives, being his wife, mother and three children are substituted as appellants in his place. The very extent of the family left behind by the appellant, inclusive of his wife and three children, obviously falsify his suggestions about inability of having marital life. We do not wish to elaborate further on this aspect of the matter; suffice it to observe for the present purpose that the case of excessive injuries and disablement, as projected by the claimant-appellant with reference to the testimony of PW-4 was bound to be, and has rightly been, rejected by the High Court.Coming to the question of just compensation, though it is noticed that the High Court has substantially reduced the amount of compensation awarded by the Tribunal but then, such a reduction was the natural consequence of rejection of the case of 95% disablement. The High Court has, otherwise, examined the entire evidence on record and, in the ultimate analysis, the amount awarded by the High Court at Rs. 2,11,060/- cannot be said to be too low or grossly inadequate on the facts and in the circumstances of this case. In this view of the matter, some restriction by the High Court towards loss of earning or disallowance of expenses of medicines, do not make out a case for interference because, as observed, the ultimate award amount is not grossly inadequate in the given set of facts and circumstances. As regards interest, the Tribunal had been rather generous in awarding the same at an exorbitant rate of 15% p.a. that was liable to be reduced. In fact, the High Court has yet allowed a comparatively higher rate of interest at 9% p.a. We find absolutely no reason to consider any upward revision in the amount of compensation awarded in this case by the High Court.
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Syndicate Bank Vs. Channaveerappa Beleri | time-barred. To clarify the above, the following illustration may be useful: Let us say that a creditor makes some advances to a borrower between 10.4.1991 and 1.6.1991 and the repayment thereof is guaranteed by the guarantor undertaking to pay on demand by the creditor, under a continuing guarantee dated 1.4.1991. Let us further say a demand is made by the creditor against the guarantor for payment on 1.3.1993. Though the limitation against the principal debtor may expire on 1.6.1994, as the demand was made on 1.3.1993 when the claim was live against the principal debtor, the limitation as against the guarantor would be 3 years from 1.3.1993. On the other hand, if the creditor does not make a demand at all against the guarantor till 1.6.1994 when the claims against the principal debtor get time-barred, any demand against the guarantor made thereafter say on 15.9.1994 would not be valid or enforceable. Be that as it may. 15. The respondents have tried to contend that when the operations ceased and the accounts became dormant, the very cessation of operation of accounts should be treated as a refusal to pay by the principal debtor, as also by the guarantors and, therefore the limitation would begin to run, not when there is a refusal to meet the demand, but when the accounts became dormant. By no logical process, we can hold that ceasing of operation of accounts by the borrower for some reason, would amount to a demand by the Bank on the guarantor to pay the amount due in the account or refusal by the principal debtor and guarantor to pay the amount due in the accounts. 16. In view of the above, we hold that the time began to run not when the operations ceased in the accounts in mid-1986, but on the expiry of 15 days from 12.10.1987 when the demand was made by the Bank and there was refusal to pay by the guarantors. The suit filed within three years therefrom is, therefore, in time.17. In the view we have taken, it is not necessary to consider the meaning of the words live account used and referred to in Samuel (supra). Suffice it to say that the interpretation by the courts below placed on the words live account, that they refer to an account which is operational and not dormant, may not be sound. This Court itself had indicated that live account means an account that is not settled. The use of the term settled gives an indication that a live account refers to an account where the balance has not been struck by an "account stated" or "account settled". We may in this behalf, refer to the following observations in Bishun Chand v. Girdhari Lal & Anr. (AIR 1934 PC 147): "The essence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action.""There can be account stated although the balance of indebtedness is not throughout in favour of one side. It is irrelevant whether the debt in favour of the final creditor is created at the outset by one large payment or consists of several sums of principal and several sums of interest. Nor is it material whether the only payments made on the other side were simply payments in reduction of such indebtedness or were payments made in respect of other dealings. In any event items must be ascertained and agreed on each side before the balance can be struck and settled." 18. Some arguments were addressed about the Article of limitation that would apply in respect of a suit against the guarantors. Samuel (supra) held that in the case of refusal of a guarantor to pay the amount, the matter would be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submissions made before us was that the term compensation for breach of contract in Article 55 indicates to a claim for unliquidated damages and not to a claim for payment of sum certain (as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of Law by Chagla, CJ., in Iron and Hardware (India) Ltd., Vs. Firm Shamlal & Bros (AIR 1954 Bom. 423 ). If Article 55 does not apply, then a claim against a Guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate Article applicable, when the claim is found to be not exactly for compensation but ascertained sum due has been referred to as long back as 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jin Thakur (AIR 1916 PC 183). Under the old Limitation Act (Act of 1908), the periods prescribed were different under Article 115 and 116. The periods prescribed were also different under Article 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Article 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel (supra), we do not propose to examine the controversy as to whether the appropriate Article is 55 or 113. Suffice it to note that even if the Article applicable is Article 113, the Banks suit is in time.19. | 1[ds]16. In view of the above, we hold that the time began to run not when the operations ceased in the accounts in mid-1986, but on the expiry of 15 days from 12.10.1987 when the demand was made by the Bank and there was refusal to pay by the guarantors. The suit filed within three years therefrom is, therefore, in time.17. In the view we have taken, it is not necessary to consider the meaning of the words live account used and referred to in Samuel (supra). Suffice it to say that the interpretation by the courts below placed on the words live account, that they refer to an account which is operational and not dormant, may not be sound. This Court itself had indicated that live account means an account that is not settled. The use of the term settled gives an indication that a live account refers to an account where the balance has not been struck by an "account stated" or "account settled". We may in this behalf, refer to the following observations in Bishunri Lal & Anr. (AIR 1934 PCessence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action.""There can be account stated although the balance of indebtedness is not throughout in favour of one side. It is irrelevant whether the debt in favour of the final creditor is created at the outset by one large payment or consists of several sums of principal and several sums of interest. Nor is it material whether the only payments made on the other side were simply payments in reduction of such indebtedness or were payments made in respect of other dealings. In any event items must be ascertained and agreed on each side before the balance can be struck and settled.Some arguments were addressed about the Article of limitation that would apply in respect of a suit against the guarantors. Samuel (supra) held that in the case of refusal of a guarantor to pay the amount, the matter would be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submissions made before us was that the term compensation for breach of contract in Article 55 indicates to a claim for unliquidated damages and not to a claim for payment of sum certain (as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of Law by Chagla, CJ., in Iron and Hardware (India) Ltd., Vs. Firm Shamlal & Bros (AIR 1954 Bom. 423 ). If Article 55 does not apply, then a claim against a Guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate Article applicable, when the claim is found to be not exactly for compensation but ascertained sum due has been referred to as long back as 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jin Thakur (AIR 1916 PC 183). Under the old Limitation Act (Act of 1908), the periods prescribed were different under Article 115 and 116. The periods prescribed were also different under Article 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Article 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel (supra), we do not propose to examine the controversy as to whether the appropriate Article is 55 or 113. Suffice it to note that even if the Article applicable is Article 113, the Banks suit is in time. | 1 | 6,085 | 796 | ### 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:
time-barred. To clarify the above, the following illustration may be useful: Let us say that a creditor makes some advances to a borrower between 10.4.1991 and 1.6.1991 and the repayment thereof is guaranteed by the guarantor undertaking to pay on demand by the creditor, under a continuing guarantee dated 1.4.1991. Let us further say a demand is made by the creditor against the guarantor for payment on 1.3.1993. Though the limitation against the principal debtor may expire on 1.6.1994, as the demand was made on 1.3.1993 when the claim was live against the principal debtor, the limitation as against the guarantor would be 3 years from 1.3.1993. On the other hand, if the creditor does not make a demand at all against the guarantor till 1.6.1994 when the claims against the principal debtor get time-barred, any demand against the guarantor made thereafter say on 15.9.1994 would not be valid or enforceable. Be that as it may. 15. The respondents have tried to contend that when the operations ceased and the accounts became dormant, the very cessation of operation of accounts should be treated as a refusal to pay by the principal debtor, as also by the guarantors and, therefore the limitation would begin to run, not when there is a refusal to meet the demand, but when the accounts became dormant. By no logical process, we can hold that ceasing of operation of accounts by the borrower for some reason, would amount to a demand by the Bank on the guarantor to pay the amount due in the account or refusal by the principal debtor and guarantor to pay the amount due in the accounts. 16. In view of the above, we hold that the time began to run not when the operations ceased in the accounts in mid-1986, but on the expiry of 15 days from 12.10.1987 when the demand was made by the Bank and there was refusal to pay by the guarantors. The suit filed within three years therefrom is, therefore, in time.17. In the view we have taken, it is not necessary to consider the meaning of the words live account used and referred to in Samuel (supra). Suffice it to say that the interpretation by the courts below placed on the words live account, that they refer to an account which is operational and not dormant, may not be sound. This Court itself had indicated that live account means an account that is not settled. The use of the term settled gives an indication that a live account refers to an account where the balance has not been struck by an "account stated" or "account settled". We may in this behalf, refer to the following observations in Bishun Chand v. Girdhari Lal & Anr. (AIR 1934 PC 147): "The essence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action.""There can be account stated although the balance of indebtedness is not throughout in favour of one side. It is irrelevant whether the debt in favour of the final creditor is created at the outset by one large payment or consists of several sums of principal and several sums of interest. Nor is it material whether the only payments made on the other side were simply payments in reduction of such indebtedness or were payments made in respect of other dealings. In any event items must be ascertained and agreed on each side before the balance can be struck and settled." 18. Some arguments were addressed about the Article of limitation that would apply in respect of a suit against the guarantors. Samuel (supra) held that in the case of refusal of a guarantor to pay the amount, the matter would be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submissions made before us was that the term compensation for breach of contract in Article 55 indicates to a claim for unliquidated damages and not to a claim for payment of sum certain (as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of Law by Chagla, CJ., in Iron and Hardware (India) Ltd., Vs. Firm Shamlal & Bros (AIR 1954 Bom. 423 ). If Article 55 does not apply, then a claim against a Guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate Article applicable, when the claim is found to be not exactly for compensation but ascertained sum due has been referred to as long back as 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jin Thakur (AIR 1916 PC 183). Under the old Limitation Act (Act of 1908), the periods prescribed were different under Article 115 and 116. The periods prescribed were also different under Article 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Article 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel (supra), we do not propose to examine the controversy as to whether the appropriate Article is 55 or 113. Suffice it to note that even if the Article applicable is Article 113, the Banks suit is in time.19.
### Response:
1
### Explanation:
16. In view of the above, we hold that the time began to run not when the operations ceased in the accounts in mid-1986, but on the expiry of 15 days from 12.10.1987 when the demand was made by the Bank and there was refusal to pay by the guarantors. The suit filed within three years therefrom is, therefore, in time.17. In the view we have taken, it is not necessary to consider the meaning of the words live account used and referred to in Samuel (supra). Suffice it to say that the interpretation by the courts below placed on the words live account, that they refer to an account which is operational and not dormant, may not be sound. This Court itself had indicated that live account means an account that is not settled. The use of the term settled gives an indication that a live account refers to an account where the balance has not been struck by an "account stated" or "account settled". We may in this behalf, refer to the following observations in Bishunri Lal & Anr. (AIR 1934 PCessence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action.""There can be account stated although the balance of indebtedness is not throughout in favour of one side. It is irrelevant whether the debt in favour of the final creditor is created at the outset by one large payment or consists of several sums of principal and several sums of interest. Nor is it material whether the only payments made on the other side were simply payments in reduction of such indebtedness or were payments made in respect of other dealings. In any event items must be ascertained and agreed on each side before the balance can be struck and settled.Some arguments were addressed about the Article of limitation that would apply in respect of a suit against the guarantors. Samuel (supra) held that in the case of refusal of a guarantor to pay the amount, the matter would be governed by Article 115 of the Schedule to the Limitation Act, 1908, which corresponds to Article 55 of the Limitation Act, 1963. One of the submissions made before us was that the term compensation for breach of contract in Article 55 indicates to a claim for unliquidated damages and not to a claim for payment of sum certain (as to what is the difference between a claim for unliquidated damages and a claim for a sum certain or a sum presently due, reference can advantageously be made to the classic statement of Law by Chagla, CJ., in Iron and Hardware (India) Ltd., Vs. Firm Shamlal & Bros (AIR 1954 Bom. 423 ). If Article 55 does not apply, then a claim against a Guarantor in such a situation may fall under the residuary Article 113 of the Limitation Act, 1963 corresponding to Article 120 of the old Act. The controversy about the appropriate Article applicable, when the claim is found to be not exactly for compensation but ascertained sum due has been referred to as long back as 1916 in Tricomdas Cooverji Bhoja v. Gopinath Jin Thakur (AIR 1916 PC 183). Under the old Limitation Act (Act of 1908), the periods prescribed were different under Article 115 and 116. The periods prescribed were also different under Article 115 and 120. But under the 1963 Act, the period of limitation is the same (three years) both under Article 55 and 113. Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel (supra), we do not propose to examine the controversy as to whether the appropriate Article is 55 or 113. Suffice it to note that even if the Article applicable is Article 113, the Banks suit is in time.
|
M/S. Continental Construction Ltd Vs. Tehri Hydro Development Corpn. Ltd. and Ors | in regard to PCL-Intertech : Lenhydro Consortium based on information/documents furnished by them, that the annual turnover of M/s Progressive during the years 1998-99 has been Rs. 158.1 crores. The joint venture partners, M/s Institute Lenhydro Project, Russia have successfully completed 140 M. high concrete gravity dam on Bureya river for Bureya Hydroelectric Project. Ruassia involving 35 Lac cum of concrete placement. The peak rate of concrete placed by the party in a single month on this project was more than the required rate of 20,000 cum. It was also noted that M/s Progressive achieved a monthly rate of 2,50,307 cum for earth and rock excavation in the month of June, 1994 for Srisailam Right band Canal work. M/s Institute Lenhydro Project, having worked on Bureya HEP, Russia, have adequate experience in Reinforced Cement Concrete Technology. Based on the information provided, and documents submitted by this Joint Venture in response to the pre-qualification tenders, the Standing Committee recommended pre-qualification of PCL-Intertech Lenhydro Consortium Joint Venture. It was intimated to the applicant that since the pre-qualifying requirements relating to concreting were being met by the consortium of Intertech : Lenhydro Project, Intertech. Lenhydro Consortium needs to be nominated as the leader of the Joint Venture. This was accepted and confirmed by the applicant vide letter No. PCL/ND/THDC/2000/2275 dated 22nd May, 2000. 6. Based on the recommendations of the Standing Committee, the answering respondent, THDC, pre-qualified seven parties in June, 2001 including the Joint Venture of M/s Progressive Construction Limited and Consortium of Intertech-Lenhydro, Russia, for submission or bids for the civil construction works of Koteshwar Hydroelectric Project. In view of these pleadings, the High Court held that on consideration of the rival submissions and pleading on record, it is abundantly clear that respondent No.2 is fully qualified and eligible to carry out the contract and the writ Petitioner did not, before the bids were opened, raise any objection regarding the experience and financial capacity of respondent No.2. The High Court, therefore, dismissed the writ petition filed by the writ petitioner. 2. In this case the respondents had entered caveats. We asked them, even at the stage of preliminary hearing before issuing notice, to address the arguments on the merits or the matter. Having heard the parties in the case, we have passed this order. 3. In the writ petition filed before the High Court the petitioner contended (i) that one of the constituents of the second respondent Lenhydro Project is not a company engaged in actual physical execution/construction of workers; rather, it was only a design firm; (ii) the Intertech Service is not a Construction Company engaged/having experience in actual execution/construction of concrete Dam, Spillway and Power House Works; (iii) The statement made by the authorised signatory of the Lenhydro Project that the said constituent has executed the Bureya Hydro-electric Project, far east Russia is not correct as in fact the said project has been built by JSC Buguchangesstroy as turn key contractor. 4. In support of this contention, the learned counsel for petitioner relied upon a letter issued by the SHC Institute Hydro Projects and letter dated May 25, 2002 by the Chamber of Commerce and Industry of the Russia Federation which stated that LENGIBROPROYEKT is a specialized design engineering company in the filed of hydro-electric projects where it enjoys goods standing as a design firm. This firm does not involve itself in executing projects nor is it known to associate or act as a turn-key contractor; that letter dated 22.11.1999 [Annexure P/12] issued by the Bureya Hydro Power Project is ambiguous inasmuch as it only refers to successful completion of the contract by the Russian constituent of the second respondent without any details thereto; that the Bureya Hydro Power Project on Bureya River was, in fact, constructed by Boguchangesstroy as a turn-key contractor as per the information obtained from the Reference list of the Project built by the JSC Boguchangesstroy for the years 1997-2000. It is also contended that during the period from 1993 to 1997 the Lenhydro project merely got executed construction work project at the Bureya Hydro Power Station even as per certificate dated 15th July, 2002 issued by the Chief Engineer of the Parent Company of the Russian Constituent of the 2nd respondent. On this basis it is contended that the second respondent had not placed any satisfactory material to show that it had necessary experience as required under the pre-qualification documents. 5. The letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce and Industry of the Russian Federation do not specifically deal with whether the 2nd respondent had in fact executed the construction work of Bureya Hydro-Power Station project but makes general reference. The Reference List obtained from the Internet gives information from 1997 onwards and not for the earlier period. Therefore, these three documents are not helpful to the petitioner. The stand of the respondents is that Bureya Hydro-Power Station project is a multi-stage project; that during period 1993-1997, the Russian Constituent of the 2nd respondent was entrusted with the construction, technical support and quality control of Bureya Hydro-Power Station project and they were providing construction machinery, material, manpower etc. during the execution of works. Certificate issued on 1.8.2002 in this regard by the parent company is made available by the 2nd respondent. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. The clear stand of the respondents on the basis of these documents is that apart from general designing work they were also engaged in actual construction of the project. If upon the material made available to the 1st respondent by the 2nd respondent its pre-qualification has been decided, the High Court in justified in not interfering under Article 226 of the Constitution. | 0[ds]2. In this case the respondents had entered caveats. We asked them, even at the stage of preliminary hearing before issuing notice, to address the arguments on the merits or the matter. Having heard the parties in the case, we have passed this order.5. The letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce and Industry of the Russian Federation do not specifically deal with whether the 2nd respondent had in fact executed the construction work of Bureya Hydro-Power Station project but makes general reference. The Reference List obtained from the Internet gives information from 1997 onwards and not for the earlier period. Therefore, these three documents are not helpful to the petitioner.The stand of the respondents is that Bureya Hydro-Power Station project is a multi-stage project; that during period 1993-1997, the Russian Constituent of the 2nd respondent was entrusted with the construction, technical support and quality control of Bureya Hydro-Power Station project and they were providing construction machinery, material, manpower etc. during the execution of works.Certificate issued on 1.8.2002 in this regard by the parent company is made available by the 2nd respondent. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. The clear stand of the respondents on the basis of these documents is that apart from general designing work they were also engaged in actual construction of the project. If upon the material made available to the 1st respondent by the 2nd respondent its pre-qualification has been decided, the High Court in justified in not interfering under Article 226 of the Constitution. | 0 | 2,048 | 333 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
in regard to PCL-Intertech : Lenhydro Consortium based on information/documents furnished by them, that the annual turnover of M/s Progressive during the years 1998-99 has been Rs. 158.1 crores. The joint venture partners, M/s Institute Lenhydro Project, Russia have successfully completed 140 M. high concrete gravity dam on Bureya river for Bureya Hydroelectric Project. Ruassia involving 35 Lac cum of concrete placement. The peak rate of concrete placed by the party in a single month on this project was more than the required rate of 20,000 cum. It was also noted that M/s Progressive achieved a monthly rate of 2,50,307 cum for earth and rock excavation in the month of June, 1994 for Srisailam Right band Canal work. M/s Institute Lenhydro Project, having worked on Bureya HEP, Russia, have adequate experience in Reinforced Cement Concrete Technology. Based on the information provided, and documents submitted by this Joint Venture in response to the pre-qualification tenders, the Standing Committee recommended pre-qualification of PCL-Intertech Lenhydro Consortium Joint Venture. It was intimated to the applicant that since the pre-qualifying requirements relating to concreting were being met by the consortium of Intertech : Lenhydro Project, Intertech. Lenhydro Consortium needs to be nominated as the leader of the Joint Venture. This was accepted and confirmed by the applicant vide letter No. PCL/ND/THDC/2000/2275 dated 22nd May, 2000. 6. Based on the recommendations of the Standing Committee, the answering respondent, THDC, pre-qualified seven parties in June, 2001 including the Joint Venture of M/s Progressive Construction Limited and Consortium of Intertech-Lenhydro, Russia, for submission or bids for the civil construction works of Koteshwar Hydroelectric Project. In view of these pleadings, the High Court held that on consideration of the rival submissions and pleading on record, it is abundantly clear that respondent No.2 is fully qualified and eligible to carry out the contract and the writ Petitioner did not, before the bids were opened, raise any objection regarding the experience and financial capacity of respondent No.2. The High Court, therefore, dismissed the writ petition filed by the writ petitioner. 2. In this case the respondents had entered caveats. We asked them, even at the stage of preliminary hearing before issuing notice, to address the arguments on the merits or the matter. Having heard the parties in the case, we have passed this order. 3. In the writ petition filed before the High Court the petitioner contended (i) that one of the constituents of the second respondent Lenhydro Project is not a company engaged in actual physical execution/construction of workers; rather, it was only a design firm; (ii) the Intertech Service is not a Construction Company engaged/having experience in actual execution/construction of concrete Dam, Spillway and Power House Works; (iii) The statement made by the authorised signatory of the Lenhydro Project that the said constituent has executed the Bureya Hydro-electric Project, far east Russia is not correct as in fact the said project has been built by JSC Buguchangesstroy as turn key contractor. 4. In support of this contention, the learned counsel for petitioner relied upon a letter issued by the SHC Institute Hydro Projects and letter dated May 25, 2002 by the Chamber of Commerce and Industry of the Russia Federation which stated that LENGIBROPROYEKT is a specialized design engineering company in the filed of hydro-electric projects where it enjoys goods standing as a design firm. This firm does not involve itself in executing projects nor is it known to associate or act as a turn-key contractor; that letter dated 22.11.1999 [Annexure P/12] issued by the Bureya Hydro Power Project is ambiguous inasmuch as it only refers to successful completion of the contract by the Russian constituent of the second respondent without any details thereto; that the Bureya Hydro Power Project on Bureya River was, in fact, constructed by Boguchangesstroy as a turn-key contractor as per the information obtained from the Reference list of the Project built by the JSC Boguchangesstroy for the years 1997-2000. It is also contended that during the period from 1993 to 1997 the Lenhydro project merely got executed construction work project at the Bureya Hydro Power Station even as per certificate dated 15th July, 2002 issued by the Chief Engineer of the Parent Company of the Russian Constituent of the 2nd respondent. On this basis it is contended that the second respondent had not placed any satisfactory material to show that it had necessary experience as required under the pre-qualification documents. 5. The letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce and Industry of the Russian Federation do not specifically deal with whether the 2nd respondent had in fact executed the construction work of Bureya Hydro-Power Station project but makes general reference. The Reference List obtained from the Internet gives information from 1997 onwards and not for the earlier period. Therefore, these three documents are not helpful to the petitioner. The stand of the respondents is that Bureya Hydro-Power Station project is a multi-stage project; that during period 1993-1997, the Russian Constituent of the 2nd respondent was entrusted with the construction, technical support and quality control of Bureya Hydro-Power Station project and they were providing construction machinery, material, manpower etc. during the execution of works. Certificate issued on 1.8.2002 in this regard by the parent company is made available by the 2nd respondent. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. The clear stand of the respondents on the basis of these documents is that apart from general designing work they were also engaged in actual construction of the project. If upon the material made available to the 1st respondent by the 2nd respondent its pre-qualification has been decided, the High Court in justified in not interfering under Article 226 of the Constitution.
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0
### Explanation:
2. In this case the respondents had entered caveats. We asked them, even at the stage of preliminary hearing before issuing notice, to address the arguments on the merits or the matter. Having heard the parties in the case, we have passed this order.5. The letters issued by the SHC Institute Hydro Projects and the Chamber of Commerce and Industry of the Russian Federation do not specifically deal with whether the 2nd respondent had in fact executed the construction work of Bureya Hydro-Power Station project but makes general reference. The Reference List obtained from the Internet gives information from 1997 onwards and not for the earlier period. Therefore, these three documents are not helpful to the petitioner.The stand of the respondents is that Bureya Hydro-Power Station project is a multi-stage project; that during period 1993-1997, the Russian Constituent of the 2nd respondent was entrusted with the construction, technical support and quality control of Bureya Hydro-Power Station project and they were providing construction machinery, material, manpower etc. during the execution of works.Certificate issued on 1.8.2002 in this regard by the parent company is made available by the 2nd respondent. Another certificate dated June 11, 2002 was relied upon along with the letter dated 22.11.1999 issued in this regard. Next stage of project from 1998 onwards was executed by a sub-contractor JSC Boguchangesstroy and Boguchangesstroy had not figured for the earlier period prior to 1998. This project has nothing to do with the earlier project. The clear stand of the respondents on the basis of these documents is that apart from general designing work they were also engaged in actual construction of the project. If upon the material made available to the 1st respondent by the 2nd respondent its pre-qualification has been decided, the High Court in justified in not interfering under Article 226 of the Constitution.
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A.P. State Fin. Corpn Vs. Vajra Chemicals | to the decision taken by the Executive Director the representation of the petitioner was communicated to the Zonal Manager Sri P.V.B. Lakshminath, who had also concurred with the decision arrived at and made an endorsement to that effect on the said representation. The said representation was also sent to the concerned recovery area officer who had also signed on the said representation on the same date..................."I further state and submit that the decision taken by the Executive Director of this respondent-Corporation on 27.12.1993 was in the presence of Managing Director of Vajra Chemicals amounts to due communication of the decision to the M.D. of Vajra Chemicals". 17. It is therefore on record that fresh opportunity was given on 27.12.1993 to the 1st respondent company and there was "communication" of the decision arrived at to the Managing Director of the company on 27.12.1993 itself. It is more significant that the above facts stated in affidavits filed on behalf of the Corporation stood wholly unrebutted and no rejoinder was filed by the Company contradicting or denying the above facts. 18. Apart from the absence of a denial of the facts stated by the Corporation, there is in our view internal evidence in the endorsement of the Executive Director of the Corporation on the represented date 27.12.1993, that the decision taken at the meeting was reduced to writing after discussion and that concurrence of the Managing Director of the 1st respondent, Mr. Vijaya Kumar, was orally given. This can be easily inferred from the language employed in the said endorsement. We shall extract the same. It reads : "Discussed with the party. Please accept Rs. 0.30 lakhs as OTP for lifting the seizure subject to party making a further payment of Rs. 0.50 lakhs in March, 1991 for which PAD cheques may be collected. This is with a clear understanding that the loan account shall be settled on OTS (one-time settlement) within 6 months from the date of handing over the unit". 19. The use of the words `Discussed with the party and `clear understanding used in the endorsement are, in our opinion, sufficient material on record corroborating the two affidavits filed on behalf of the Corporation in the Writ Appeal. The Division Bench of the High Court was therefore in error in observing that there was no material to infer that the decision contained in the endorsement dated 27.12.1993 was communicated to the Company. 20. Summarising the position, we are of the view that the Division Bench of the High Court while allowing the Writ Appeal overlooked the fact that there was no pleading in the writ petition regarding the representation dated 27.12.1993 or the non-communication of any decision thereon. No rejoinder was filed by the 1st respondent to contradict the specific averments made in the Corporations affidavit as to what happened on 27.12.1993 in the Chambers of the Executive Director of the Corporation. There is internal evidence in the endorsement of the Executive Director of the Corporation which shows that the matter was discussed and an arrangement was arrived at in the presence of Mr. Vijaya Kumar and was reduced to writing and communicated to him and consequential directions were issued to the office of the Corporation to receive Rs. 30,000/- as outright payment and release the unit, and to receive Rs. 50,000/- by March, 1994, receive post-dated cheques and it was also agreed that the 1st respondent was to make a one-time settlement (OTS). The learned Judge therefore erred in entertaining and accepting a plea put forward by the 1st respondent-Company for the first time in the Writ Appeal for which there was no foundation in the pleading or affidavits of the 1st respondent Company.It is true that this Court does not normally interfere with findings of fact arrived at by the High Court. But where there is no pleading and where a factual issue is permitted to be raised for the first time in Writ Appeal and findings are given contrary to the affidavit filed by the opposite party and where no reference is made to the contents of the only crucial documents in the case, (the endorsement dated 27.12.1993 on the representation), this Court can and will interfere.21. We may also refer to the conduct of the 1st respondent which, in fact, estops it from approaching the Court. The certificate issued by the Vysya Bank, after the sale was made, shows that the 1st respondent-Company accepted the factum of the sale of the unit. In the additional affidavit of Sr. V. Ramchandra dated 10.9.1995 filed before the Division Bench it was stated that the certificate dated 3.7.1995 issued by the Vysya Bank shows that the 1st respondent was aware of the sale finally made by the Corporation and had accepted the sale. The certificate dated 3.7.1995 by the Bank read as follows :- "This is to certify that a demand loan availed by M/s Vajra Chemicals Pvt. Ltd. is outstanding with us wherein the balance amount together with interest accrued thereon upto 30th June, 1995 at Rs. 1,58,047.00 (Rs. One Lakh fifty eight thousand and forty seven only). This certificate is issued at the request of the Company." 22. From the above certificate of the bank, it is clear that the 1st respondent Company wanted that the balance amount remaining after adjusting the dues to the Corporation, should go in discharge of the Companys dues to the Vysya Bank. The 1st respondent Company was not able to explain what was the occasion for the Company to ask the Vysya Bank to move the Corporation. The sale of the unit was on 13.3.1995, the same was approved by the Board of the Corporation on 13.5.1995 and the purchaser had deposited the entire sale consideration on 21.6.1995. It is not in dispute that the Corporation has paid the Vysya Bank the amount covered by the certificate out of the balance of the sale proceeds that remained with the Corporation. This conduct of the company precludes it from questioning the sale. | 1[ds]20. Summarising the position, we are of the view that the Division Bench of the High Court while allowing the Writ Appeal overlooked the fact that there was no pleading in the writ petition regarding the representation dated 27.12.1993 or theof any decision thereon. No rejoinder was filed by the 1st respondent to contradict the specific averments made in the Corporations affidavit as to what happened on 27.12.1993 in the Chambers of the Executive Director of the Corporation. There is internal evidence in the endorsement of the Executive Director of the Corporation which shows that the matter was discussed and an arrangement was arrived at in the presence of Mr. Vijaya Kumar and was reduced to writing and communicated to him and consequential directions were issued to the office of the Corporation to receive Rs. 30,000/as outright payment and release the unit, and to receive Rs. 50,000/by March, 1994, receivecheques and it was also agreed that the 1st respondent was to make asettlement (OTS). The learned Judge therefore erred in entertaining and accepting a plea put forward by the 1stfor the first time in the Writ Appeal for which there was no foundation in the pleading or affidavits of the 1st respondent Company.It is true that this Court does not normally interfere with findings of fact arrived at by the High Court. But where there is no pleading and where a factual issue is permitted to be raised for the first time in Writ Appeal and findings are given contrary to the affidavit filed by the opposite party and where no reference is made to the contents of the only crucial documents in the case, (the endorsement dated 27.12.1993 on the representation), this Court can and will interfere.21. We may also refer to the conduct of the 1st respondent which, in fact, estops it from approaching the Court. The certificate issued by the Vysya Bank, after the sale was made, shows that the 1staccepted the factum of the sale of the unit. In the additional affidavit of Sr. V. Ramchandra dated 10.9.1995 filed before the Division Bench it was stated that the certificate dated 3.7.1995 issued by the Vysya Bank shows that the 1st respondent was aware of the sale finally made by the Corporation and had accepted the sale. The certificate dated 3.7.1995 by the Bank read as followsis to certify that a demand loan availed by M/s Vajra Chemicals Pvt. Ltd. is outstanding with us wherein the balance amount together with interest accrued thereon upto 30th June, 1995 at Rs. 1,58,047.00 (Rs. One Lakh fifty eight thousand and forty seven only). This certificate is issued at the request of the Company.From the above certificate of the bank, it is clear that the 1st respondent Company wanted that the balance amount remaining after adjusting the dues to the Corporation, should go in discharge of the Companys dues to the Vysya Bank. The 1st respondent Company was not able to explain what was the occasion for the Company to ask the Vysya Bank to move the Corporation. The sale of the unit was on 13.3.1995, the same was approved by the Board of the Corporation on 13.5.1995 and the purchaser had deposited the entire sale consideration on 21.6.1995. It is not in dispute that the Corporation has paid the Vysya Bank the amount covered by the certificate out of the balance of the sale proceeds that remained with the Corporation. This conduct of the company precludes it from questioning the sale. | 1 | 4,088 | 625 | ### 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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to the decision taken by the Executive Director the representation of the petitioner was communicated to the Zonal Manager Sri P.V.B. Lakshminath, who had also concurred with the decision arrived at and made an endorsement to that effect on the said representation. The said representation was also sent to the concerned recovery area officer who had also signed on the said representation on the same date..................."I further state and submit that the decision taken by the Executive Director of this respondent-Corporation on 27.12.1993 was in the presence of Managing Director of Vajra Chemicals amounts to due communication of the decision to the M.D. of Vajra Chemicals". 17. It is therefore on record that fresh opportunity was given on 27.12.1993 to the 1st respondent company and there was "communication" of the decision arrived at to the Managing Director of the company on 27.12.1993 itself. It is more significant that the above facts stated in affidavits filed on behalf of the Corporation stood wholly unrebutted and no rejoinder was filed by the Company contradicting or denying the above facts. 18. Apart from the absence of a denial of the facts stated by the Corporation, there is in our view internal evidence in the endorsement of the Executive Director of the Corporation on the represented date 27.12.1993, that the decision taken at the meeting was reduced to writing after discussion and that concurrence of the Managing Director of the 1st respondent, Mr. Vijaya Kumar, was orally given. This can be easily inferred from the language employed in the said endorsement. We shall extract the same. It reads : "Discussed with the party. Please accept Rs. 0.30 lakhs as OTP for lifting the seizure subject to party making a further payment of Rs. 0.50 lakhs in March, 1991 for which PAD cheques may be collected. This is with a clear understanding that the loan account shall be settled on OTS (one-time settlement) within 6 months from the date of handing over the unit". 19. The use of the words `Discussed with the party and `clear understanding used in the endorsement are, in our opinion, sufficient material on record corroborating the two affidavits filed on behalf of the Corporation in the Writ Appeal. The Division Bench of the High Court was therefore in error in observing that there was no material to infer that the decision contained in the endorsement dated 27.12.1993 was communicated to the Company. 20. Summarising the position, we are of the view that the Division Bench of the High Court while allowing the Writ Appeal overlooked the fact that there was no pleading in the writ petition regarding the representation dated 27.12.1993 or the non-communication of any decision thereon. No rejoinder was filed by the 1st respondent to contradict the specific averments made in the Corporations affidavit as to what happened on 27.12.1993 in the Chambers of the Executive Director of the Corporation. There is internal evidence in the endorsement of the Executive Director of the Corporation which shows that the matter was discussed and an arrangement was arrived at in the presence of Mr. Vijaya Kumar and was reduced to writing and communicated to him and consequential directions were issued to the office of the Corporation to receive Rs. 30,000/- as outright payment and release the unit, and to receive Rs. 50,000/- by March, 1994, receive post-dated cheques and it was also agreed that the 1st respondent was to make a one-time settlement (OTS). The learned Judge therefore erred in entertaining and accepting a plea put forward by the 1st respondent-Company for the first time in the Writ Appeal for which there was no foundation in the pleading or affidavits of the 1st respondent Company.It is true that this Court does not normally interfere with findings of fact arrived at by the High Court. But where there is no pleading and where a factual issue is permitted to be raised for the first time in Writ Appeal and findings are given contrary to the affidavit filed by the opposite party and where no reference is made to the contents of the only crucial documents in the case, (the endorsement dated 27.12.1993 on the representation), this Court can and will interfere.21. We may also refer to the conduct of the 1st respondent which, in fact, estops it from approaching the Court. The certificate issued by the Vysya Bank, after the sale was made, shows that the 1st respondent-Company accepted the factum of the sale of the unit. In the additional affidavit of Sr. V. Ramchandra dated 10.9.1995 filed before the Division Bench it was stated that the certificate dated 3.7.1995 issued by the Vysya Bank shows that the 1st respondent was aware of the sale finally made by the Corporation and had accepted the sale. The certificate dated 3.7.1995 by the Bank read as follows :- "This is to certify that a demand loan availed by M/s Vajra Chemicals Pvt. Ltd. is outstanding with us wherein the balance amount together with interest accrued thereon upto 30th June, 1995 at Rs. 1,58,047.00 (Rs. One Lakh fifty eight thousand and forty seven only). This certificate is issued at the request of the Company." 22. From the above certificate of the bank, it is clear that the 1st respondent Company wanted that the balance amount remaining after adjusting the dues to the Corporation, should go in discharge of the Companys dues to the Vysya Bank. The 1st respondent Company was not able to explain what was the occasion for the Company to ask the Vysya Bank to move the Corporation. The sale of the unit was on 13.3.1995, the same was approved by the Board of the Corporation on 13.5.1995 and the purchaser had deposited the entire sale consideration on 21.6.1995. It is not in dispute that the Corporation has paid the Vysya Bank the amount covered by the certificate out of the balance of the sale proceeds that remained with the Corporation. This conduct of the company precludes it from questioning the sale.
### Response:
1
### Explanation:
20. Summarising the position, we are of the view that the Division Bench of the High Court while allowing the Writ Appeal overlooked the fact that there was no pleading in the writ petition regarding the representation dated 27.12.1993 or theof any decision thereon. No rejoinder was filed by the 1st respondent to contradict the specific averments made in the Corporations affidavit as to what happened on 27.12.1993 in the Chambers of the Executive Director of the Corporation. There is internal evidence in the endorsement of the Executive Director of the Corporation which shows that the matter was discussed and an arrangement was arrived at in the presence of Mr. Vijaya Kumar and was reduced to writing and communicated to him and consequential directions were issued to the office of the Corporation to receive Rs. 30,000/as outright payment and release the unit, and to receive Rs. 50,000/by March, 1994, receivecheques and it was also agreed that the 1st respondent was to make asettlement (OTS). The learned Judge therefore erred in entertaining and accepting a plea put forward by the 1stfor the first time in the Writ Appeal for which there was no foundation in the pleading or affidavits of the 1st respondent Company.It is true that this Court does not normally interfere with findings of fact arrived at by the High Court. But where there is no pleading and where a factual issue is permitted to be raised for the first time in Writ Appeal and findings are given contrary to the affidavit filed by the opposite party and where no reference is made to the contents of the only crucial documents in the case, (the endorsement dated 27.12.1993 on the representation), this Court can and will interfere.21. We may also refer to the conduct of the 1st respondent which, in fact, estops it from approaching the Court. The certificate issued by the Vysya Bank, after the sale was made, shows that the 1staccepted the factum of the sale of the unit. In the additional affidavit of Sr. V. Ramchandra dated 10.9.1995 filed before the Division Bench it was stated that the certificate dated 3.7.1995 issued by the Vysya Bank shows that the 1st respondent was aware of the sale finally made by the Corporation and had accepted the sale. The certificate dated 3.7.1995 by the Bank read as followsis to certify that a demand loan availed by M/s Vajra Chemicals Pvt. Ltd. is outstanding with us wherein the balance amount together with interest accrued thereon upto 30th June, 1995 at Rs. 1,58,047.00 (Rs. One Lakh fifty eight thousand and forty seven only). This certificate is issued at the request of the Company.From the above certificate of the bank, it is clear that the 1st respondent Company wanted that the balance amount remaining after adjusting the dues to the Corporation, should go in discharge of the Companys dues to the Vysya Bank. The 1st respondent Company was not able to explain what was the occasion for the Company to ask the Vysya Bank to move the Corporation. The sale of the unit was on 13.3.1995, the same was approved by the Board of the Corporation on 13.5.1995 and the purchaser had deposited the entire sale consideration on 21.6.1995. It is not in dispute that the Corporation has paid the Vysya Bank the amount covered by the certificate out of the balance of the sale proceeds that remained with the Corporation. This conduct of the company precludes it from questioning the sale.
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Smt. Nirmala R. Bafna/Kershi Shivax Cambatta Andors Vs. Khandesh Spinning And Weaving Mills Co. Ltd. Andanr./Offici | consent to the sub-tenancy in favour of the appellant. Counsel submitted that the conditions imposed by the Division Bench are contrary to law inasmuch as the protection of Bombay Rent Control Act. Act available to the appellant cannot be ignored or undone merely because the company has gone into liquidation. He submitted that the appellant can be evicted only by an authority under the Rent Control Act on the grounds specified in the Act. The enhancement of rent from Rs. 600/ - to Rs. 7,500/- is equally incompetent for the same reason. He submitted further that the tenancy interest the company had in the said flat is not an asset of the company in liquidation and that, at any rate, the liquidator cannot trade in the said right. He complained that the appellant had a right to be in possession of the said premises in her own right as a sub-tenant, and that the Division Bench acted illegally in converting the appellant into an agent of the official liquidator. The company court had no jurisdiction to direct the official liquidator to take possession of the entire flat including the portion in possession of the appellant, he submitted. 15. Sri Mehta, learned counsel for the official liquidator supported the reasoning and directions given by the Division Bench. He submitted that the story of sub-tenancy is untrue besides being invalid. The story of consent of landlord to the alleged sub-tenancy agreement is equally untrue. The trustee (representing the landlord-trust) acted beyond the authority in consenting to the said sub-tenancy, assuming that there was such a consent. Having regard to the close relationship of the appellant with one of the directors of the company (and the Manager of the company), and in all the facts and circumstances of the case, the directions made by the Division Bench are perfectly just and that this court ought not to interfere with the same. He submitted that the directions made by the Division Bench are discretionary in nature and have been made without prejudice to the rights and contentions of the parties in the said suit. The Bench has further empowered the company Judge to vary the said directions at any time he thinks proper. Having regard to the prevailing rents in Bombay, the location of the flat and all the circumstances of the case, the monthly compensation fixed by the Division Bench is in fact on the lower side, submitted the counsel. 16. At this stage, we must refer to the stand taken by the counsel for the landlord trust. The two SLPs. filed by the landlord trust were posted and heard along with this SLP. Sri G. L. Sanghi, learned counsel for the landlord trust stated before us that the trustees have indeed consented orally to the sub-tenancy agreement between the company and the appellants. We must say that this circumstance was not present before the Division Bench and evidently for this reason that the Bench appears to have rejected the theory of consent of the landlord. We cannot however refuse to take notice of the said statement of the counsel. We do so for the limited purpose of this appeal.17. From the facts narrated above, it would be evident that the rights of the appellant have to be. adjudicated in the suit filed by her which is now transferred to the High Court with the consent of both the parties. Whether the sub-tenancy is true, whether it is valid in law and whether the consent of the landlord is true and valid, are all questions which arise for decision in the suit. We cannot pronounce upon them at this stage. The only question for our consideration is whether the directions given by the Division Bench, extracted hereinabove, are justified in the circumstances of the case and in law.? 18. It is admitted by the official liquidator that the Board of directors of the company had indeed passed a special resolution affirming the agreement of sub-tenancy in favour of the appellant. (In her plaint in Suit No. 4873 of 1984 the appellant has referred to the said special resolution of the Board of directors.) This fact coupled with the statement of the learned counsel for the landlord trust establishes, prima facie, the appellants plea of sub-tenancy. That she was in possession of a major portion of the said flat on the date of appointment of liquidator is also not in dispute. According to the sub-tenancy agreement, the rent payable by the appellant is Rs. 600/ - per month as against Rs. 900/- per month payable by the company to the landlord for the entire -flat. In the above circumstances, we cannot reject, prima facie speaking, the appellants claim of protection of Bombay Rent Control Act. In addition to this factual situation, there are two other circumstances which must be taken into. consideration, viz.,a. The tenancy rights, the company had, in the said flat may not be an asset for the purpose of liquidation proceedings and. b. merely because a company goes in liquidation and a liquidator/ official liquidator is appointed, the rights of the company vis-a-vis its landlord and/ or its tenants, do not undergo any change.19. In view of the above facts and circumstances, we are of the opinion that the directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been altered - she is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance, which was not present before the Division Bench and which has been brought to our notice is the consent of the landlord to the sub-tenancy in her favour. | 0[ds]We cannot however refuse to take notice of the said statement of the counsel. We do so for the limited purpose of this appeal.17. From the facts narrated above, it would be evident that the rights of the appellant have to be. adjudicated in the suit filed by her which is now transferred to the High Court with the consent of both the parties. Whether the sub-tenancy is true, whether it is valid in law and whether the consent of the landlord is true and valid, are all questions which arise for decision in the suit. We cannot pronounce upon them at this stage.It is admitted by the official liquidator that the Board of directors of the company had indeed passed a special resolution affirming the agreement of sub-tenancy in favour of the appellant. (In her plaint in Suit No. 4873 of 1984 the appellant has referred to the said special resolution of the Board of directors.) This fact coupled with the statement of the learned counsel for the landlord trust establishes, prima facie, the appellants plea of sub-tenancy. That she was in possession of a major portion of the said flat on the date of appointment of liquidator is also not in dispute. According to the sub-tenancy agreement, the rent payable by the appellant is Rs. 600/ - per month as against Rs. 900/- per month payable by the company to the landlord for the entire -flat. In the above circumstances, we cannot reject, prima facie speaking, the appellants claim of protection of Bombay Rent Control Act. In addition to this factual situation, there are two other circumstances which must be taken intoconsideration, viz.,a. The tenancy rights, the company had, in the said flat may not be an asset for the purpose of liquidation proceedingsmerely because a company goes in liquidation and a liquidator/ official liquidator is appointed, the rights of the company vis-a-vis its landlord and/ or its tenants, do not undergo any change.19. In view of the above facts and circumstances, we are of the opinion that the directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been altered - she is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance, which was not present before the Division Bench and which has been brought to our notice is the consent of the landlord to the sub-tenancy in her favour. In the light of all the circumstances, we are of the opinion that the directions extracted hereinbefore in para were really not called for, at the interlocutory stage.L. P. No. 15678 ofbe, the liquidator can do so, but we cannot force him to do so, long as the reason given by him for continuing in possession is a relevant one. Secondly, the fact that the proposal of the Rashtriya Girni Kamgar Sangh, who are said to have formed an action Committee of the Khandesh Mill Employees Industrial Production Co-operative Society, for revival of the said Company was an equally relevantdo not know. Suffice it to say that the reasons for which the application filed by the appellant-landlord (and his appeal) have been dismissed cannot said to be irrelevant. We cannot, therefore, interfere with the said orders. | 0 | 2,793 | 674 | ### 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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consent to the sub-tenancy in favour of the appellant. Counsel submitted that the conditions imposed by the Division Bench are contrary to law inasmuch as the protection of Bombay Rent Control Act. Act available to the appellant cannot be ignored or undone merely because the company has gone into liquidation. He submitted that the appellant can be evicted only by an authority under the Rent Control Act on the grounds specified in the Act. The enhancement of rent from Rs. 600/ - to Rs. 7,500/- is equally incompetent for the same reason. He submitted further that the tenancy interest the company had in the said flat is not an asset of the company in liquidation and that, at any rate, the liquidator cannot trade in the said right. He complained that the appellant had a right to be in possession of the said premises in her own right as a sub-tenant, and that the Division Bench acted illegally in converting the appellant into an agent of the official liquidator. The company court had no jurisdiction to direct the official liquidator to take possession of the entire flat including the portion in possession of the appellant, he submitted. 15. Sri Mehta, learned counsel for the official liquidator supported the reasoning and directions given by the Division Bench. He submitted that the story of sub-tenancy is untrue besides being invalid. The story of consent of landlord to the alleged sub-tenancy agreement is equally untrue. The trustee (representing the landlord-trust) acted beyond the authority in consenting to the said sub-tenancy, assuming that there was such a consent. Having regard to the close relationship of the appellant with one of the directors of the company (and the Manager of the company), and in all the facts and circumstances of the case, the directions made by the Division Bench are perfectly just and that this court ought not to interfere with the same. He submitted that the directions made by the Division Bench are discretionary in nature and have been made without prejudice to the rights and contentions of the parties in the said suit. The Bench has further empowered the company Judge to vary the said directions at any time he thinks proper. Having regard to the prevailing rents in Bombay, the location of the flat and all the circumstances of the case, the monthly compensation fixed by the Division Bench is in fact on the lower side, submitted the counsel. 16. At this stage, we must refer to the stand taken by the counsel for the landlord trust. The two SLPs. filed by the landlord trust were posted and heard along with this SLP. Sri G. L. Sanghi, learned counsel for the landlord trust stated before us that the trustees have indeed consented orally to the sub-tenancy agreement between the company and the appellants. We must say that this circumstance was not present before the Division Bench and evidently for this reason that the Bench appears to have rejected the theory of consent of the landlord. We cannot however refuse to take notice of the said statement of the counsel. We do so for the limited purpose of this appeal.17. From the facts narrated above, it would be evident that the rights of the appellant have to be. adjudicated in the suit filed by her which is now transferred to the High Court with the consent of both the parties. Whether the sub-tenancy is true, whether it is valid in law and whether the consent of the landlord is true and valid, are all questions which arise for decision in the suit. We cannot pronounce upon them at this stage. The only question for our consideration is whether the directions given by the Division Bench, extracted hereinabove, are justified in the circumstances of the case and in law.? 18. It is admitted by the official liquidator that the Board of directors of the company had indeed passed a special resolution affirming the agreement of sub-tenancy in favour of the appellant. (In her plaint in Suit No. 4873 of 1984 the appellant has referred to the said special resolution of the Board of directors.) This fact coupled with the statement of the learned counsel for the landlord trust establishes, prima facie, the appellants plea of sub-tenancy. That she was in possession of a major portion of the said flat on the date of appointment of liquidator is also not in dispute. According to the sub-tenancy agreement, the rent payable by the appellant is Rs. 600/ - per month as against Rs. 900/- per month payable by the company to the landlord for the entire -flat. In the above circumstances, we cannot reject, prima facie speaking, the appellants claim of protection of Bombay Rent Control Act. In addition to this factual situation, there are two other circumstances which must be taken into. consideration, viz.,a. The tenancy rights, the company had, in the said flat may not be an asset for the purpose of liquidation proceedings and. b. merely because a company goes in liquidation and a liquidator/ official liquidator is appointed, the rights of the company vis-a-vis its landlord and/ or its tenants, do not undergo any change.19. In view of the above facts and circumstances, we are of the opinion that the directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been altered - she is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance, which was not present before the Division Bench and which has been brought to our notice is the consent of the landlord to the sub-tenancy in her favour.
### Response:
0
### Explanation:
We cannot however refuse to take notice of the said statement of the counsel. We do so for the limited purpose of this appeal.17. From the facts narrated above, it would be evident that the rights of the appellant have to be. adjudicated in the suit filed by her which is now transferred to the High Court with the consent of both the parties. Whether the sub-tenancy is true, whether it is valid in law and whether the consent of the landlord is true and valid, are all questions which arise for decision in the suit. We cannot pronounce upon them at this stage.It is admitted by the official liquidator that the Board of directors of the company had indeed passed a special resolution affirming the agreement of sub-tenancy in favour of the appellant. (In her plaint in Suit No. 4873 of 1984 the appellant has referred to the said special resolution of the Board of directors.) This fact coupled with the statement of the learned counsel for the landlord trust establishes, prima facie, the appellants plea of sub-tenancy. That she was in possession of a major portion of the said flat on the date of appointment of liquidator is also not in dispute. According to the sub-tenancy agreement, the rent payable by the appellant is Rs. 600/ - per month as against Rs. 900/- per month payable by the company to the landlord for the entire -flat. In the above circumstances, we cannot reject, prima facie speaking, the appellants claim of protection of Bombay Rent Control Act. In addition to this factual situation, there are two other circumstances which must be taken intoconsideration, viz.,a. The tenancy rights, the company had, in the said flat may not be an asset for the purpose of liquidation proceedingsmerely because a company goes in liquidation and a liquidator/ official liquidator is appointed, the rights of the company vis-a-vis its landlord and/ or its tenants, do not undergo any change.19. In view of the above facts and circumstances, we are of the opinion that the directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been altered - she is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance, which was not present before the Division Bench and which has been brought to our notice is the consent of the landlord to the sub-tenancy in her favour. In the light of all the circumstances, we are of the opinion that the directions extracted hereinbefore in para were really not called for, at the interlocutory stage.L. P. No. 15678 ofbe, the liquidator can do so, but we cannot force him to do so, long as the reason given by him for continuing in possession is a relevant one. Secondly, the fact that the proposal of the Rashtriya Girni Kamgar Sangh, who are said to have formed an action Committee of the Khandesh Mill Employees Industrial Production Co-operative Society, for revival of the said Company was an equally relevantdo not know. Suffice it to say that the reasons for which the application filed by the appellant-landlord (and his appeal) have been dismissed cannot said to be irrelevant. We cannot, therefore, interfere with the said orders.
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Central Bank Of India Vs. Virudhunagar Steel Rolling Mills Ltd&Ors | and D. K. Mohammed Ehiya Sahib v. R.M.P.V. Valliappa Chettiar AIR 1976 MAD 536. In the latter case it was held that if there is any variation in the original contract the legal consequence would be that the surety stood absolved.3. The impugned Judgment notes that the main submission on behalf of the Appellant Bank was that all the documents executed by the Respondent Company, including those dated 30.8.1974 and the acknowledgement of liability dated 30.6.1977 and 31.12.1977 had to be taken together in fastening the liability of the Directors of the Company with regard to their personal guarantees. It also noted that in none of the documents relied upon by the Respondent Company had Respondent Nos. 2 to 4 acknowledged or undertaken their personal liability and/or stood guarantee for repayment of any specific and liquidated amounts already advanced by the Appellant Bank to the Respondent Company prior to 30.8.1974. The High Court also returned the finding that there was no cogent evidence to establish that the claims raised in the suit pertained to advance or credits made subsequent to 30.8.1974, the date on which Respondent Nos. 2 to 4 had executed the documents relied upon by the Appellant Bank. 4. The learned Counsel appearing for the Appellant Bank had raised arguments, firstly to the question of limitation, secondly to the discharge of surety by variance and thirdly on priority claims in respect of Rollers. Since the question which engaged the attention of the High Court in the impugned Judgment revolved around the fastening of the liability on the Respondent Nos.2 to 4 in respect of transactions prior to the date of the execution of those documents, i.e. 30.8.1974, we shall restrict our attention only to this point. It will be a relevant reiteration that the entire claim of the Appellant Bank had been decreed against the Respondent Company. 5. So far as the factual matrix is concerned, the Respondent Company was a constituent of the Appellant Bank for a considerably long period and had availed of various facilities including cash credit, etc. It is not in dispute that of the limit of 12 lacs sanctioned by the Appellant Bank in favour of the Respondent Company, the balance on the close of the business on 29.8.1974 was 7,68,853.39, and the latter stood indebted to the former for the aforesaid sum. Learned counsel for the Appellant Bank had sought to rely on Montosh Kumar Chatterjee v. Central Calcutta Bank Ltd. (1952-53) 57 CWN 852, the ratio of which appears to be that a creditor is not bound to volunteer to a surety information as to the state of the principal debtor’s account; and that a creditor is entitled to appropriate payments received subsequent to the execution of a guarantee bond, even so far as a pre-existing debt of which the surety had no knowledge; that there can be no presumption that the surety will be efficacious for prior as well as current and future debts. We note that in the case in hand, the Letter of Guarantee signed on 30.8.1974 by Respondent Nos. 2 to 4 makes no mention of any old transactions, although it specifically records that the liability of the guarantors cannot exceed 12 lacs. The Letters of Guarantee could easily have recorded the liabilities outstanding against the Respondent Company on 30.8.1974 with an affirmation from Respondent Nos. 2 to 4 that they were guaranteeing these outstandings. Woefully for the Appellant Bank, there is no such acknowledgment or assumption of liability in the subject Guarantee. The High Court has pithily noted the statement of P.W.1, Accountant of the Appellant Bank, who has deposed to the effect that the Deed of Guarantee made no mention of any prior transactions. It appears to us that if any doubts in this regard still persisted, they stood dispelled by the testimony of D.W.1, who has stated in his cross-examination that the Appellant Bank obtained the Guarantee Deed on the understanding that it would be effective and relevant only with regard to debts subsequent to 30.8.1974. This very witness had also clarified that the Guarantee arrangements made no mention whatsoever that they were effective in respect of prior debts. 6. The decision in Sita Ram Gupta v. Punjab National Bank (2008) 5 SCC 711 is of no advantage to the Appellant Bank. That decision concerns the possibility of a guarantor revoking his continuing guarantee, with the objective of escaping his liability. This is not the case before us inasmuch as the defence of Respondent Nos. 2 to 4 is that they had agreed to stand surety only for transactions after 30.8.1974. Our attention was also drawn to B. G. Vasantha v. Corporation Bank, Mangalore (2005) 10 SCC 215 as also M.S. Anirudhan v. Thomco’s Bank Ltd. AIR 1963 SC 746 but these decisions do not call for a detailed analysis. It is the Appellant Bank which drafted the Guarantee Deed, and in case of doubt, the document would be read against it. This is the contra proferentem rule, which is of a vintage which brooks no contradiction. 7. In view of the foregoing discussion, there appears to be no controversy as to the fact that the Guarantee Deeds executed by Respondent Nos. 2 to 4 on 30.8.1974 rendered them personally liable for any transactions or advances made by the Appellant Bank to the Respondent Company after 30.8.1974. There is also no controversy whatsoever that the Bank account lay dormant after this date, all dealings having been transacted much prior thereto. Such being the position, it is not open to the Appellant Bank to pursue Respondent Nos. 2 to 4 for recovery of debts incurred by the Respondent Company in favour of the Appellant Bank. We may clarify that our decision is founded on the evidence that has been recorded in this suit. We should not be misunderstood to have held that a guarantor can, in no circumstances be fastened with liabilities which had been incurred in the past which the guarantor assumed liability for. | 0[ds]7. In view of the foregoing discussion, there appears to be no controversy as to the fact that the Guarantee Deeds executed by Respondent Nos. 2 to 4 on 30.8.1974 rendered them personally liable for any transactions or advances made by the Appellant Bank to the Respondent Company after 30.8.1974. There is also no controversy whatsoever that the Bank account lay dormant after this date, all dealings having been transacted much prior thereto. Such being the position, it is not open to the Appellant Bank to pursue Respondent Nos. 2 to 4 for recovery of debts incurred by the Respondent Company in favour of the Appellant Bank. We may clarify that our decision is founded on the evidence that has been recorded in this suit. We should not be misunderstood to have held that a guarantor can, in no circumstances be fastened with liabilities which had been incurred in the past which the guarantor assumed liability | 0 | 1,414 | 171 | ### Instruction:
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and D. K. Mohammed Ehiya Sahib v. R.M.P.V. Valliappa Chettiar AIR 1976 MAD 536. In the latter case it was held that if there is any variation in the original contract the legal consequence would be that the surety stood absolved.3. The impugned Judgment notes that the main submission on behalf of the Appellant Bank was that all the documents executed by the Respondent Company, including those dated 30.8.1974 and the acknowledgement of liability dated 30.6.1977 and 31.12.1977 had to be taken together in fastening the liability of the Directors of the Company with regard to their personal guarantees. It also noted that in none of the documents relied upon by the Respondent Company had Respondent Nos. 2 to 4 acknowledged or undertaken their personal liability and/or stood guarantee for repayment of any specific and liquidated amounts already advanced by the Appellant Bank to the Respondent Company prior to 30.8.1974. The High Court also returned the finding that there was no cogent evidence to establish that the claims raised in the suit pertained to advance or credits made subsequent to 30.8.1974, the date on which Respondent Nos. 2 to 4 had executed the documents relied upon by the Appellant Bank. 4. The learned Counsel appearing for the Appellant Bank had raised arguments, firstly to the question of limitation, secondly to the discharge of surety by variance and thirdly on priority claims in respect of Rollers. Since the question which engaged the attention of the High Court in the impugned Judgment revolved around the fastening of the liability on the Respondent Nos.2 to 4 in respect of transactions prior to the date of the execution of those documents, i.e. 30.8.1974, we shall restrict our attention only to this point. It will be a relevant reiteration that the entire claim of the Appellant Bank had been decreed against the Respondent Company. 5. So far as the factual matrix is concerned, the Respondent Company was a constituent of the Appellant Bank for a considerably long period and had availed of various facilities including cash credit, etc. It is not in dispute that of the limit of 12 lacs sanctioned by the Appellant Bank in favour of the Respondent Company, the balance on the close of the business on 29.8.1974 was 7,68,853.39, and the latter stood indebted to the former for the aforesaid sum. Learned counsel for the Appellant Bank had sought to rely on Montosh Kumar Chatterjee v. Central Calcutta Bank Ltd. (1952-53) 57 CWN 852, the ratio of which appears to be that a creditor is not bound to volunteer to a surety information as to the state of the principal debtor’s account; and that a creditor is entitled to appropriate payments received subsequent to the execution of a guarantee bond, even so far as a pre-existing debt of which the surety had no knowledge; that there can be no presumption that the surety will be efficacious for prior as well as current and future debts. We note that in the case in hand, the Letter of Guarantee signed on 30.8.1974 by Respondent Nos. 2 to 4 makes no mention of any old transactions, although it specifically records that the liability of the guarantors cannot exceed 12 lacs. The Letters of Guarantee could easily have recorded the liabilities outstanding against the Respondent Company on 30.8.1974 with an affirmation from Respondent Nos. 2 to 4 that they were guaranteeing these outstandings. Woefully for the Appellant Bank, there is no such acknowledgment or assumption of liability in the subject Guarantee. The High Court has pithily noted the statement of P.W.1, Accountant of the Appellant Bank, who has deposed to the effect that the Deed of Guarantee made no mention of any prior transactions. It appears to us that if any doubts in this regard still persisted, they stood dispelled by the testimony of D.W.1, who has stated in his cross-examination that the Appellant Bank obtained the Guarantee Deed on the understanding that it would be effective and relevant only with regard to debts subsequent to 30.8.1974. This very witness had also clarified that the Guarantee arrangements made no mention whatsoever that they were effective in respect of prior debts. 6. The decision in Sita Ram Gupta v. Punjab National Bank (2008) 5 SCC 711 is of no advantage to the Appellant Bank. That decision concerns the possibility of a guarantor revoking his continuing guarantee, with the objective of escaping his liability. This is not the case before us inasmuch as the defence of Respondent Nos. 2 to 4 is that they had agreed to stand surety only for transactions after 30.8.1974. Our attention was also drawn to B. G. Vasantha v. Corporation Bank, Mangalore (2005) 10 SCC 215 as also M.S. Anirudhan v. Thomco’s Bank Ltd. AIR 1963 SC 746 but these decisions do not call for a detailed analysis. It is the Appellant Bank which drafted the Guarantee Deed, and in case of doubt, the document would be read against it. This is the contra proferentem rule, which is of a vintage which brooks no contradiction. 7. In view of the foregoing discussion, there appears to be no controversy as to the fact that the Guarantee Deeds executed by Respondent Nos. 2 to 4 on 30.8.1974 rendered them personally liable for any transactions or advances made by the Appellant Bank to the Respondent Company after 30.8.1974. There is also no controversy whatsoever that the Bank account lay dormant after this date, all dealings having been transacted much prior thereto. Such being the position, it is not open to the Appellant Bank to pursue Respondent Nos. 2 to 4 for recovery of debts incurred by the Respondent Company in favour of the Appellant Bank. We may clarify that our decision is founded on the evidence that has been recorded in this suit. We should not be misunderstood to have held that a guarantor can, in no circumstances be fastened with liabilities which had been incurred in the past which the guarantor assumed liability for.
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7. In view of the foregoing discussion, there appears to be no controversy as to the fact that the Guarantee Deeds executed by Respondent Nos. 2 to 4 on 30.8.1974 rendered them personally liable for any transactions or advances made by the Appellant Bank to the Respondent Company after 30.8.1974. There is also no controversy whatsoever that the Bank account lay dormant after this date, all dealings having been transacted much prior thereto. Such being the position, it is not open to the Appellant Bank to pursue Respondent Nos. 2 to 4 for recovery of debts incurred by the Respondent Company in favour of the Appellant Bank. We may clarify that our decision is founded on the evidence that has been recorded in this suit. We should not be misunderstood to have held that a guarantor can, in no circumstances be fastened with liabilities which had been incurred in the past which the guarantor assumed liability
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Raza Buland Sugar Co. Ltd Vs. Their Workmen | the said paragraph are only to the effect that the appellant considered it advisable and economical to increase the crushing capacity of the factory to 3000 tons per day by expansion and amalgamation of plant and machinery of Buland factory into Raza factory. These averments, in our opinion do not assist the appellant. They refer only to the amalgamation of the plant and machinery of Raza factory an Buland factory into one unit. No doubt, the averments contained in paragraph 6 have been admitted in the statement filed by the workmen. But this admission relates only to the facts mentioned in paragraph 6 referred to above. It must only be considered to be an admission of the appellants statement that the two factories were integrated and the crushing capacity increased to 3000 tons per day. These are statement of facts about which there can be no controversy. But the point to be noted is that there are no particulars even in paragraph 6 of the appellants statement as to what exactly was the nature of expansion done by the company. Notwithstanding the absence of any particulars regarding expansion and modernisation of machinery, the Tribunal has assumed that there may have been some expansion which would have contributed to some higher production. But the definite finding of the Tribunal is that the increased higher production is mainly or substantially due to the increased efforts put in by the workmen. We hold that this finding of the Tribunal has been properly arrived at on the materials on record.10. Then the question is whether the modifications effected in the incentive scheme by the Tribunal are justified. In the case of the cane carriers, the company was originally paying incentive bonus at a particular rate if the crushing capacity exceeded 355 tons. This was the case in respect of each the factories. What the Tribunal has done was that after the amalgamation of both the factories, it is reasonable to increase the minimum from 335 tons to 670 tons. That is, the Tribunal directed that premium will be paid to the cane carriers if the daily crushing exceeded 670 tons. According to the original scheme the payment to the cane carriers was to be paid as follows :"1. Can carriers : The system of payment of incentive bonus(1) Lower than 335 tons cane crushed per shift - nil.(2) From 335 tons to 370 tons - /1/6 per every coolie present, - /2/- for every cane carrier mate and - /3/- for supervisor.(3) From 371 tons per shift awards 2/6/- per coolie, - 3/- per mate and - /4/- per supervisor."11. The Tribunal modified the clauses by directing that for the figures 335, 370 and 371 the figures 670, 740 and 742 respectively shall be substituted. That is, the Tribunal doubled the quantity fixed under the original scheme. Accordingly to Mr. Maheswari, as the production capacity of the combined unit has been increased to 3000 M. tons, the Tribunal should have fixed the minimum as 1005 tons. We are not inclined to accept this contention of the learned counsel. If the appellant wanted to establish that the premium is to be paid only if the production exceeds 1005 tons, then it should have furnished particulars regarding the production capacity of the machinery as well as the normal production that could be fixed for an individual or a group of individuals working in a particular section. The appellant not having taken any steps in that regard, the direction given by the Tribunal has to be sustained.12. So far as filter presses are concerned, though the employees working therein were originally given by the appellant premium under the original scheme, the Tribunal has held that the employees in that section are not entitled to the payment of premium as such payment is not related to production. Regarding this direction the appellant cannot have any grievance.13. Regarding centrifugals, evaporators and heaters, the Tribunal has adopted the clauses already contained in the original scheme. Mr. Maheswari was not able to satisfy us that the directions given by the Tribunal regarding evaporators and heaters are in any manner erroneous. In fact, we have gone through those clauses of the scheme and we are satisfied that the payment mentioned therein I really related to higher production and, therefore, they have been rightly included in the incentive scheme.14. But, regarding centrifugals, Mr. Maheswari contended that the Tribunal has committed an error in continuing the practice as per the original scheme. His contention is that this item is similar to filter presses. The Tribunal having abolished the incentive scheme regarding the latter, it should have applied the same principle an abolished the scheme regarding centrifugals also. We are not inclined to accept this contention of the learned counsel. The ground on which the scheme was cancelled in respect of filter presses was that the payment referred to therein is not related to production. We have gone through the clause relating to filter presses as contained in the original scheme. It is clear from the said clause that the amounts referred to therein which are of an ad hoc character have to be paid under all circumstances without any relation to the production. On the other hand, a perusal of the clause relating to centrifugals, which has been retained by the Tribunal consists of three parts. The first part relates to the rate at which payment is to be made to the employees referred to therein. The second part relates to the distribution of the premium not only from the particular shifts but also from the total amount payable in the circumstances mentioned therein. These various aspects clearly indicate that the payment is related to product of a particular quality of sugar. Therefore, of a particular quality of sugar. Therefore, the principles applicable to the cancellation of the scheme in respect of filter presses do not apply to centrifugals. Hence the Tribunal was justified in retaining the clauses in the incentive scheme regarding centrifugals. | 0[ds]7. After a consideration of the original incentive scheme that was admittedly in force in the two factories and the reasons given by the Tribunal for making some slight modifications, we are satisfied that the appeal is devoid of any merit.The contention of Mr. Maheswari that because higher wages are being paid in view of the implementation of the recommendations of the Central Wage Board and as such an incentive scheme is no longernecessary, cannot be accepted. It should be remembered that the wages fixed by the Wage Board apply uniformly to the various categories of workmen to whom it applies. The payment of wages does not normally depend upon the outturn of work of a particular employee or ground of employees in a particular section. On the other hand, the payment under an incentive scheme is really by way of additional wages for giving higher production which ultimately goes to increase the profit of the company. In the case of sugar factories payment of such incentive is called "premium". The payment of such premium is really related to giving production, higher than the quantity that would otherwise have been normally produced. It is needless to state that higher production may result either by installation of modern machinery or by the increased efforts made by the workmen or due to the combined effect of both these factors.8. In this case, though the appellant pleaded that it had modernised machinery, and that the greater production was really due to this circumstance the Tribunal has rightly held that the appellant had adduced no evidence in that regard. At this stage it may be mentioned that neither the appellant nor the workmen adduced any evidence, oral or documentary, before the Tribunal. Both of them relied only on the statements contained in the pleadings filed by the parties before the Tribunal. On the basis of the averments contained in the pleadings, arguments were advanced by the parties before the Tribunal. Nevertheless, the Tribunal has shown some consideration in favour of the appellant when it assumed that the company may have made some expansion after the two units were integrated inBut it has definitely held that the higher production is substantially due to the increased efforts of the workmen in the particular sections. Once it is found that the higher production is mainly due to the increased effort made by the workmen, the Tribunal, in our opinion, must be held to be justified in reintroducing with modifications, the incentive scheme all along in force in the company. It is also to be stated at this stage that the jurisdiction of the Tribunal to reintroduce the incentive scheme had not been challenged by the appellant either before the Tribunal or in this Court.9.Mr. Maheswari, however, attacked the finding of the Tribunal that the additional production is mainly due to the increased efforts of the workmen and not due to the modernised machinery put up by the appellant. Normally a criticism like this will require a very serious consideration by this Court.If the appellant had established the fact of installation of modern machinery which has resulted in higher production, then the higher production, if any, due to increased efforts of the workmen may have to be separately considered. But, in this case, the appellant is faced with this difficulty in that it did not lead any evidence in that regard. But the counsel urged that the averment in its pleadings regarding installation of modern machinery has not been controverted by the workmen. We have gone through the averment in paragraph 6 of the statement filed by the appellant before the Tribunal and which has been relied on before us as containing the necessary averments regarding installation of additional plant and machinery. The material averments in the said paragraph are only to the effect that the appellant considered it advisable and economical to increase the crushing capacity of the factory to 3000 tons per day by expansion and amalgamation of plant and machinery of Buland factory into Raza factory. These averments, in our opinion do not assist the appellant. They refer only to the amalgamation of the plant and machinery of Raza factory an Buland factory into one unit. No doubt, the averments contained in paragraph 6 have been admitted in the statement filed by the workmen. But this admission relates only to the facts mentioned in paragraph 6 referred to above. It must only be considered to be an admission of the appellants statement that the two factories were integrated and the crushing capacity increased to 3000 tons per day. These are statement of facts about which there can be no controversy. But the point to be noted is that there are no particulars even in paragraph 6 of the appellants statement as to what exactly was the nature of expansion done by the company. Notwithstanding the absence of any particulars regarding expansion and modernisation of machinery, the Tribunal has assumed that there may have been some expansion which would have contributed to some higher production. But the definite finding of the Tribunal is that the increased higher production is mainly or substantially due to the increased efforts put in by the workmen. We hold that this finding of the Tribunal has been properly arrived at on the materials on record.The Tribunal modified the clauses by directing that for the figures 335, 370 and 371 the figures 670, 740 and 742 respectively shall be substituted. That is, the Tribunal doubled the quantity fixed under the original scheme. Accordingly to Mr. Maheswari, as the production capacity of the combined unit has been increased to 3000 M. tons, the Tribunal should have fixed the minimum as 1005 tons.We are not inclined to accept this contention of the learned counsel. If the appellant wanted to establish that the premium is to be paid only if the production exceeds 1005 tons, then it should have furnished particulars regarding the production capacity of the machinery as well as the normal production that could be fixed for an individual or a group of individuals working in a particular section. The appellant not having taken any steps in that regard, the direction given by the Tribunal has to be sustained.12. So far as filter presses are concerned, though the employees working therein were originally given by the appellant premium under the original scheme, the Tribunal has held that the employees in that section are not entitled to the payment of premium as such payment is not related to production. Regarding this direction the appellant cannot have any grievance.13. Regarding centrifugals, evaporators and heaters, the Tribunal has adopted the clauses already contained in the original scheme. Mr. Maheswari was not able to satisfy us that the directions given by the Tribunal regarding evaporators and heaters are in any manner erroneous. In fact, we have gone through those clauses of the scheme and we are satisfied that the payment mentioned therein I really related to higher production and, therefore, they have been rightly included in the incentive scheme.14.But, regarding centrifugals, Mr. Maheswari contended that the Tribunal has committed an error in continuing the practice as per the original scheme. His contention is that this item is similar to filter presses. The Tribunal having abolished the incentive scheme regarding the latter, it should have applied the same principle an abolished the scheme regarding centrifugals also.We are not inclined to accept this contention of the learned counsel. The ground on which the scheme was cancelled in respect of filter presses was that the payment referred to therein is not related to production. We have gone through the clause relating to filter presses as contained in the original scheme. It is clear from the said clause that the amounts referred to therein which are of an ad hoc character have to be paid under all circumstances without any relation to the production. On the other hand, a perusal of the clause relating to centrifugals, which has been retained by the Tribunal consists of three parts. The first part relates to the rate at which payment is to be made to the employees referred to therein. The second part relates to the distribution of the premium not only from the particular shifts but also from the total amount payable in the circumstances mentioned therein. These various aspects clearly indicate that the payment is related to product of a particular quality of sugar. Therefore, of a particular quality of sugar. Therefore, the principles applicable to the cancellation of the scheme in respect of filter presses do not apply to centrifugals. Hence the Tribunal was justified in retaining the clauses in the incentive scheme regarding centrifugals. | 0 | 2,668 | 1,549 | ### Instruction:
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the said paragraph are only to the effect that the appellant considered it advisable and economical to increase the crushing capacity of the factory to 3000 tons per day by expansion and amalgamation of plant and machinery of Buland factory into Raza factory. These averments, in our opinion do not assist the appellant. They refer only to the amalgamation of the plant and machinery of Raza factory an Buland factory into one unit. No doubt, the averments contained in paragraph 6 have been admitted in the statement filed by the workmen. But this admission relates only to the facts mentioned in paragraph 6 referred to above. It must only be considered to be an admission of the appellants statement that the two factories were integrated and the crushing capacity increased to 3000 tons per day. These are statement of facts about which there can be no controversy. But the point to be noted is that there are no particulars even in paragraph 6 of the appellants statement as to what exactly was the nature of expansion done by the company. Notwithstanding the absence of any particulars regarding expansion and modernisation of machinery, the Tribunal has assumed that there may have been some expansion which would have contributed to some higher production. But the definite finding of the Tribunal is that the increased higher production is mainly or substantially due to the increased efforts put in by the workmen. We hold that this finding of the Tribunal has been properly arrived at on the materials on record.10. Then the question is whether the modifications effected in the incentive scheme by the Tribunal are justified. In the case of the cane carriers, the company was originally paying incentive bonus at a particular rate if the crushing capacity exceeded 355 tons. This was the case in respect of each the factories. What the Tribunal has done was that after the amalgamation of both the factories, it is reasonable to increase the minimum from 335 tons to 670 tons. That is, the Tribunal directed that premium will be paid to the cane carriers if the daily crushing exceeded 670 tons. According to the original scheme the payment to the cane carriers was to be paid as follows :"1. Can carriers : The system of payment of incentive bonus(1) Lower than 335 tons cane crushed per shift - nil.(2) From 335 tons to 370 tons - /1/6 per every coolie present, - /2/- for every cane carrier mate and - /3/- for supervisor.(3) From 371 tons per shift awards 2/6/- per coolie, - 3/- per mate and - /4/- per supervisor."11. The Tribunal modified the clauses by directing that for the figures 335, 370 and 371 the figures 670, 740 and 742 respectively shall be substituted. That is, the Tribunal doubled the quantity fixed under the original scheme. Accordingly to Mr. Maheswari, as the production capacity of the combined unit has been increased to 3000 M. tons, the Tribunal should have fixed the minimum as 1005 tons. We are not inclined to accept this contention of the learned counsel. If the appellant wanted to establish that the premium is to be paid only if the production exceeds 1005 tons, then it should have furnished particulars regarding the production capacity of the machinery as well as the normal production that could be fixed for an individual or a group of individuals working in a particular section. The appellant not having taken any steps in that regard, the direction given by the Tribunal has to be sustained.12. So far as filter presses are concerned, though the employees working therein were originally given by the appellant premium under the original scheme, the Tribunal has held that the employees in that section are not entitled to the payment of premium as such payment is not related to production. Regarding this direction the appellant cannot have any grievance.13. Regarding centrifugals, evaporators and heaters, the Tribunal has adopted the clauses already contained in the original scheme. Mr. Maheswari was not able to satisfy us that the directions given by the Tribunal regarding evaporators and heaters are in any manner erroneous. In fact, we have gone through those clauses of the scheme and we are satisfied that the payment mentioned therein I really related to higher production and, therefore, they have been rightly included in the incentive scheme.14. But, regarding centrifugals, Mr. Maheswari contended that the Tribunal has committed an error in continuing the practice as per the original scheme. His contention is that this item is similar to filter presses. The Tribunal having abolished the incentive scheme regarding the latter, it should have applied the same principle an abolished the scheme regarding centrifugals also. We are not inclined to accept this contention of the learned counsel. The ground on which the scheme was cancelled in respect of filter presses was that the payment referred to therein is not related to production. We have gone through the clause relating to filter presses as contained in the original scheme. It is clear from the said clause that the amounts referred to therein which are of an ad hoc character have to be paid under all circumstances without any relation to the production. On the other hand, a perusal of the clause relating to centrifugals, which has been retained by the Tribunal consists of three parts. The first part relates to the rate at which payment is to be made to the employees referred to therein. The second part relates to the distribution of the premium not only from the particular shifts but also from the total amount payable in the circumstances mentioned therein. These various aspects clearly indicate that the payment is related to product of a particular quality of sugar. Therefore, of a particular quality of sugar. Therefore, the principles applicable to the cancellation of the scheme in respect of filter presses do not apply to centrifugals. Hence the Tribunal was justified in retaining the clauses in the incentive scheme regarding centrifugals.
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been challenged by the appellant either before the Tribunal or in this Court.9.Mr. Maheswari, however, attacked the finding of the Tribunal that the additional production is mainly due to the increased efforts of the workmen and not due to the modernised machinery put up by the appellant. Normally a criticism like this will require a very serious consideration by this Court.If the appellant had established the fact of installation of modern machinery which has resulted in higher production, then the higher production, if any, due to increased efforts of the workmen may have to be separately considered. But, in this case, the appellant is faced with this difficulty in that it did not lead any evidence in that regard. But the counsel urged that the averment in its pleadings regarding installation of modern machinery has not been controverted by the workmen. We have gone through the averment in paragraph 6 of the statement filed by the appellant before the Tribunal and which has been relied on before us as containing the necessary averments regarding installation of additional plant and machinery. The material averments in the said paragraph are only to the effect that the appellant considered it advisable and economical to increase the crushing capacity of the factory to 3000 tons per day by expansion and amalgamation of plant and machinery of Buland factory into Raza factory. These averments, in our opinion do not assist the appellant. They refer only to the amalgamation of the plant and machinery of Raza factory an Buland factory into one unit. No doubt, the averments contained in paragraph 6 have been admitted in the statement filed by the workmen. But this admission relates only to the facts mentioned in paragraph 6 referred to above. It must only be considered to be an admission of the appellants statement that the two factories were integrated and the crushing capacity increased to 3000 tons per day. These are statement of facts about which there can be no controversy. But the point to be noted is that there are no particulars even in paragraph 6 of the appellants statement as to what exactly was the nature of expansion done by the company. Notwithstanding the absence of any particulars regarding expansion and modernisation of machinery, the Tribunal has assumed that there may have been some expansion which would have contributed to some higher production. But the definite finding of the Tribunal is that the increased higher production is mainly or substantially due to the increased efforts put in by the workmen. We hold that this finding of the Tribunal has been properly arrived at on the materials on record.The Tribunal modified the clauses by directing that for the figures 335, 370 and 371 the figures 670, 740 and 742 respectively shall be substituted. That is, the Tribunal doubled the quantity fixed under the original scheme. Accordingly to Mr. Maheswari, as the production capacity of the combined unit has been increased to 3000 M. tons, the Tribunal should have fixed the minimum as 1005 tons.We are not inclined to accept this contention of the learned counsel. If the appellant wanted to establish that the premium is to be paid only if the production exceeds 1005 tons, then it should have furnished particulars regarding the production capacity of the machinery as well as the normal production that could be fixed for an individual or a group of individuals working in a particular section. The appellant not having taken any steps in that regard, the direction given by the Tribunal has to be sustained.12. So far as filter presses are concerned, though the employees working therein were originally given by the appellant premium under the original scheme, the Tribunal has held that the employees in that section are not entitled to the payment of premium as such payment is not related to production. Regarding this direction the appellant cannot have any grievance.13. Regarding centrifugals, evaporators and heaters, the Tribunal has adopted the clauses already contained in the original scheme. Mr. Maheswari was not able to satisfy us that the directions given by the Tribunal regarding evaporators and heaters are in any manner erroneous. In fact, we have gone through those clauses of the scheme and we are satisfied that the payment mentioned therein I really related to higher production and, therefore, they have been rightly included in the incentive scheme.14.But, regarding centrifugals, Mr. Maheswari contended that the Tribunal has committed an error in continuing the practice as per the original scheme. His contention is that this item is similar to filter presses. The Tribunal having abolished the incentive scheme regarding the latter, it should have applied the same principle an abolished the scheme regarding centrifugals also.We are not inclined to accept this contention of the learned counsel. The ground on which the scheme was cancelled in respect of filter presses was that the payment referred to therein is not related to production. We have gone through the clause relating to filter presses as contained in the original scheme. It is clear from the said clause that the amounts referred to therein which are of an ad hoc character have to be paid under all circumstances without any relation to the production. On the other hand, a perusal of the clause relating to centrifugals, which has been retained by the Tribunal consists of three parts. The first part relates to the rate at which payment is to be made to the employees referred to therein. The second part relates to the distribution of the premium not only from the particular shifts but also from the total amount payable in the circumstances mentioned therein. These various aspects clearly indicate that the payment is related to product of a particular quality of sugar. Therefore, of a particular quality of sugar. Therefore, the principles applicable to the cancellation of the scheme in respect of filter presses do not apply to centrifugals. Hence the Tribunal was justified in retaining the clauses in the incentive scheme regarding centrifugals.
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Assistant Commissioner of Commercial Taxes (Asst.) Dharwar Vs. Dharnendra Trading Company, Etc | submission. No counter-affidavit was filed by the appellants before the Trial Court in the writ petition. Beyond the statement of counsel, there is nothing to show that any misuse was made of these concessions or undue advantage taken of the same. It is true that the preamble to the order dated 12th January, 1977 does recite that the concessions given by the earlier order had given room for many types of misuse but such a recital by itself cannot establish that the concessions were, in fact, misused. If that were so, it was the duty of the Government and the concerned authorities to file a counter affidavit and place the relevant facts establishing the misuse before the Court. This they have totally failed to do. 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 o r undue advantage being taken of the concessions given by it were reasonable well established. In the present case, there is nothing on record to show that any such misuse was being made or undue advantage taken of the said concessions by the newly established industries. The Government had, therefore, failed to establish the requisite ground or the basis of which it might be allowed to go back on its promise. The first submission of the learned counsel for the appellants must, therefore, fail.The next submission of learned counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellants. 3. Although, we are of the view that the contention set out in the foregoing paragraph is not open to the appellants at all , we propose to examine the merits of that contention because, in our view, even on merits the contention raised must be rejected. The ground on which it was submitted that the said order of 30th June, 1969 was invalid is that there is no provision under the Karnataka Sales Tax Act, 1957 (referred to hereinafter as "the said Act") under which any refund could be granted. The learned counsel for the appellants pointed out that only relevant provision, in this connection, is Section 8A of the said Act and that Section empowers the State Government to notify exemptions and reductions in the levy of tax on sale or purchase of goods that are made exigible under the provisions contained in Chapter-3 of the said Act. Section 8A expressly empowers the State Government to grant exemptions and reductions. Under the said order dated 30th June, 1969 it has been inter alia provided that a cash refund will be allowed on all sales tax paid by a new industry on raw materials purchased by it for the first five years from the date the industry goes into production as set out in said the Order. The only submission made on behalf of the appellants is that since the benefit given is called a refund, it cannot be said to be an exemption or reduction as permitted by Section 8A. In our view, there is no substance in this submission at all. In order to test the validity of the order dated 30th June, 1969, one has to see the substance of the concession granted under the order and not merely certain words used out of context. Although the benefit regarding sales tax granted to the new industries is by way of refunds of sales tax paid to the extent provided in the Order, it is clear that, in effect, the benefit granted is in the nature of an exemption from the payment of the sales tax or reduction in the sales tax liability to the extent stated in the order. In view of this, there is no substance whatever in the contention that t he State Government had no authority to provide for the grant of refunds. Again, the mere fact that the order of 30th June, 1969 did not specify the power under which it was issued will make no difference because such a power is clearly there in Section 8A and where the source of power under which it is issued is not stated in an order but can be found on the examination of the relevant Act, the exercise of the power must be attributed to that source. The second submission of the learned counsel for the appellants must, also, therefore, be rejected.Although at one stage a faint doubt was raised by learned counsel for the appellants as to whether the Doctrine of Promissory Estoppel could be regarded as good law now, he conceded that doctrine must be regarded as good law in view of the recent decision of this Court in State of Bihar and Anr. v. Usha Martin Industries Ltd., [1987] 65 STC, 430 where a Division Bench comprising three learned Judges o f this Court upheld and applied that doctrine. 4. | 0[ds]We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellantsAlthough, we are of the view that the contention set out in the foregoing paragraph is not open to the appellants at all , we propose to examine the merits of that contention because, in our view, even on merits the contention raised must be rejected. The ground on which it was submitted that the said order of 30th June, 1969 was invalid is that there is no provision under the Karnataka Sales Tax Act, 1957 (referred to hereinafter as "the said Act") under which any refund could be granted. The learned counsel for the appellants pointed out that only relevant provision, in this connection, is Section 8A of the said Act and that Section empowers the State Government to notify exemptions and reductions in the levy of tax on sale or purchase of goods that are made exigible under the provisions contained in Chapter-3 of the said Act. Section 8A expressly empowers the State Government to grant exemptions and reductions. Under the said order dated 30th June, 1969 it has been inter alia provided that a cash refund will be allowed on all sales tax paid by a new industry on raw materials purchased by it for the first five years from the date the industry goes into production as set out in said the Order. The only submission made on behalf of the appellants is that since the benefit given is called a refund, it cannot be said to be an exemption or reduction as permitted by Section 8A. In our view, there is no substance in this submission at all. In order to test the validity of the order dated 30th June, 1969, one has to see the substance of the concession granted under the order and not merely certain words used out of context. Although the benefit regarding sales tax granted to the new industries is by way of refunds of sales tax paid to the extent provided in the Order, it is clear that, in effect, the benefit granted is in the nature of an exemption from the payment of the sales tax or reduction in the sales tax liability to the extent stated in the order. In view of this, there is no substance whatever in the contention that t he State Government had no authority to provide for the grant of refunds. Again, the mere fact that the order of 30th June, 1969 did not specify the power under which it was issued will make no difference because such a power is clearly there in Section 8A and where the source of power under which it is issued is not stated in an order but can be found on the examination of the relevant Act, the exercise of the power must be attributed to that source. The second submission of the learned counsel for the appellants must, also, therefore, be rejected.Although at one stage a faint doubt was raised by learned counsel for the appellants as to whether the Doctrine of Promissory Estoppel could be regarded as good law now, he conceded that doctrine must be regarded as good law in view of the recent decision of this Court in State of Bihar and Anr. v. Usha Martin Industries Ltd., [1987] 65 STC, 430 where a Division Bench comprising three learned Judges o f this Court upheld and applied that doctrine | 0 | 2,028 | 708 | ### 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:
submission. No counter-affidavit was filed by the appellants before the Trial Court in the writ petition. Beyond the statement of counsel, there is nothing to show that any misuse was made of these concessions or undue advantage taken of the same. It is true that the preamble to the order dated 12th January, 1977 does recite that the concessions given by the earlier order had given room for many types of misuse but such a recital by itself cannot establish that the concessions were, in fact, misused. If that were so, it was the duty of the Government and the concerned authorities to file a counter affidavit and place the relevant facts establishing the misuse before the Court. This they have totally failed to do. 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 o r undue advantage being taken of the concessions given by it were reasonable well established. In the present case, there is nothing on record to show that any such misuse was being made or undue advantage taken of the said concessions by the newly established industries. The Government had, therefore, failed to establish the requisite ground or the basis of which it might be allowed to go back on its promise. The first submission of the learned counsel for the appellants must, therefore, fail.The next submission of learned counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellants. 3. Although, we are of the view that the contention set out in the foregoing paragraph is not open to the appellants at all , we propose to examine the merits of that contention because, in our view, even on merits the contention raised must be rejected. The ground on which it was submitted that the said order of 30th June, 1969 was invalid is that there is no provision under the Karnataka Sales Tax Act, 1957 (referred to hereinafter as "the said Act") under which any refund could be granted. The learned counsel for the appellants pointed out that only relevant provision, in this connection, is Section 8A of the said Act and that Section empowers the State Government to notify exemptions and reductions in the levy of tax on sale or purchase of goods that are made exigible under the provisions contained in Chapter-3 of the said Act. Section 8A expressly empowers the State Government to grant exemptions and reductions. Under the said order dated 30th June, 1969 it has been inter alia provided that a cash refund will be allowed on all sales tax paid by a new industry on raw materials purchased by it for the first five years from the date the industry goes into production as set out in said the Order. The only submission made on behalf of the appellants is that since the benefit given is called a refund, it cannot be said to be an exemption or reduction as permitted by Section 8A. In our view, there is no substance in this submission at all. In order to test the validity of the order dated 30th June, 1969, one has to see the substance of the concession granted under the order and not merely certain words used out of context. Although the benefit regarding sales tax granted to the new industries is by way of refunds of sales tax paid to the extent provided in the Order, it is clear that, in effect, the benefit granted is in the nature of an exemption from the payment of the sales tax or reduction in the sales tax liability to the extent stated in the order. In view of this, there is no substance whatever in the contention that t he State Government had no authority to provide for the grant of refunds. Again, the mere fact that the order of 30th June, 1969 did not specify the power under which it was issued will make no difference because such a power is clearly there in Section 8A and where the source of power under which it is issued is not stated in an order but can be found on the examination of the relevant Act, the exercise of the power must be attributed to that source. The second submission of the learned counsel for the appellants must, also, therefore, be rejected.Although at one stage a faint doubt was raised by learned counsel for the appellants as to whether the Doctrine of Promissory Estoppel could be regarded as good law now, he conceded that doctrine must be regarded as good law in view of the recent decision of this Court in State of Bihar and Anr. v. Usha Martin Industries Ltd., [1987] 65 STC, 430 where a Division Bench comprising three learned Judges o f this Court upheld and applied that doctrine. 4.
### Response:
0
### Explanation:
We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellantsAlthough, we are of the view that the contention set out in the foregoing paragraph is not open to the appellants at all , we propose to examine the merits of that contention because, in our view, even on merits the contention raised must be rejected. The ground on which it was submitted that the said order of 30th June, 1969 was invalid is that there is no provision under the Karnataka Sales Tax Act, 1957 (referred to hereinafter as "the said Act") under which any refund could be granted. The learned counsel for the appellants pointed out that only relevant provision, in this connection, is Section 8A of the said Act and that Section empowers the State Government to notify exemptions and reductions in the levy of tax on sale or purchase of goods that are made exigible under the provisions contained in Chapter-3 of the said Act. Section 8A expressly empowers the State Government to grant exemptions and reductions. Under the said order dated 30th June, 1969 it has been inter alia provided that a cash refund will be allowed on all sales tax paid by a new industry on raw materials purchased by it for the first five years from the date the industry goes into production as set out in said the Order. The only submission made on behalf of the appellants is that since the benefit given is called a refund, it cannot be said to be an exemption or reduction as permitted by Section 8A. In our view, there is no substance in this submission at all. In order to test the validity of the order dated 30th June, 1969, one has to see the substance of the concession granted under the order and not merely certain words used out of context. Although the benefit regarding sales tax granted to the new industries is by way of refunds of sales tax paid to the extent provided in the Order, it is clear that, in effect, the benefit granted is in the nature of an exemption from the payment of the sales tax or reduction in the sales tax liability to the extent stated in the order. In view of this, there is no substance whatever in the contention that t he State Government had no authority to provide for the grant of refunds. Again, the mere fact that the order of 30th June, 1969 did not specify the power under which it was issued will make no difference because such a power is clearly there in Section 8A and where the source of power under which it is issued is not stated in an order but can be found on the examination of the relevant Act, the exercise of the power must be attributed to that source. The second submission of the learned counsel for the appellants must, also, therefore, be rejected.Although at one stage a faint doubt was raised by learned counsel for the appellants as to whether the Doctrine of Promissory Estoppel could be regarded as good law now, he conceded that doctrine must be regarded as good law in view of the recent decision of this Court in State of Bihar and Anr. v. Usha Martin Industries Ltd., [1987] 65 STC, 430 where a Division Bench comprising three learned Judges o f this Court upheld and applied that doctrine
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Kedar Nath Bahl Vs. State of Punjab & Others | these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automatic confirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or thre is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See: Narain Singh, Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/- 29-1-1964 (SC). Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 of 1962, D/- 23-1-1964 (SC), G. S. Ramaswamy v. Inspector General of Police, Mysore State, Civil Appeals Nos. 972 to 977 of 1963, D/- 21-1-1964 = (reported in AIR 1966 SC 175 ). The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post of 4-11-1958 was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien.10. The suggestion that since he had occupied a class I post till 4-11-1958 he should have been absorbed in an equivalent post like that of an Executive Engineer, has no merit at all. It is true that by the reversion to Class II post he suffers great pecuniary loss but that could not be helped because he must known when he applied for this temporary post that after all he was holding it for a temporary period and after the abolition of the post he was liable to be reverted to his original post. Though it is true that in the advertisement of the post it was stated that the post was "likely to continue" after 28-2-55, but that was no assurance that the post would be made permanent.11. The second ground of attack based on mala fides is as follows. According to the appellant, soon after he assumed charges of his new post he made disclosures of several irregularities which had taken place in the project and this made him a persona-non-grata with the senior Officers of his Department including the Chief Engineer and the Superintending Engineer of the Capital Project. He also alleged that the Project Administration did not like his appointment as Landscape Architect, and every opportunity was taken to condemn him. Adverse Confidential Reports were made against him which, though at one stage were ordered to be expunged by the Government, were later restored. Since the Administration found no way of removing him from the post, they decided to abolish the post which he was holding though, in the opinion of the appellant, the post was essential and necessary to be continued. In other words, the appellants contention is that the Administration sought to achieve his removal from the post not by taking in a straight-forward manner disciplinary action against him but by maliciously abolishing the post. These allegations are denied on behalf of the State. According to the State the Capital Project itself was a temporary project and the post of the Landscape Architect was a temporary post. As a matter of fact in the very first instance in the advertisement for the post, it was stated to be for a short period namely till 28-2-1955. It was found in due course that the post was no longer useful and was abolished after the question of its continuance had been examined by the Special Committee consisting of Ch. Surajmal, Public Works Minister, Shri M. S. Randhava and Shri Swaroop Krishan. The Committee recommended that the continuance of the post was not necessary and it should be abolished forthwith. Government accepted this recommendation and discontinued the post, which till 4-11-1958, had been continued from time to time by orders extending its duration. The High Court has found no substance in the allegation of mala fides. If, in the interest of the Administration, the temporary post is abolished, the question as to what were the personal relations between the appellant and his superiors was irrelevant. Moreover, all that the appellant has been able to say is that his immediate superiors in the Department were hostile to him. But here we are concerned not with the action of his immediate superiors but the action of the Government. The decision to discontinue the post was the decision of the Government and it is not alleged in the Writ Petition that in taking this decision the Government acted mala fide. We, therefore, agree with the High Court that there is no substance in the allegation that the post was discontinued or abolished in order to punish the appellant.12. It is a tragedy that it has not been possible to utilize the services of a highly qualified Officer like the appellant in an appropriate post which could bring the best out of him.However, we can do no more than express our sympathy. | 0[ds]Though in the last note datedthe Revenue Minister had stated that the Government had ordered the appellants confirmation that was obviously a slip of memory. There was no Government order confirming the appellant. All that the Revenue Minister had done onwas to suggest to the Secretary that the appellant should be confirmed on the completion of his probation. That suggestion could not be implemented owing to the nature of the post which the appellant had held. Onwhen the Revenue Minister made the above note he was no longer in charge of the Capital Project. It is obvious that these notings by the Minister with regard to the confirmation of the appellant could not be implemented as under the rules the appellants confirmation in the temporary post of Landscape Architect was impossible. The appellant, theerfore, was not entitled to rely upon these notings for proving the fact that he had been actually confirmed when it is admitted that no effective order confirming him in that post was ever passed or communicated to him.9.It was next contended that even if it is assumed that he was not confirmed by the Government in the post, it must be held that he was automatically confirmed in the post after the first six months ofprobation. He was a Government servant before he accepted this post and under the terms of appointment already referred to, he was on probation for six months. The period of probation was over onIt is the contention of the appellant that on the expiry of this period of probation he was automatically confirmed. The record, however, shows that the probationary period was extended by the Government from time to time though the orders were made with retrospective effect. Theappellant contends that these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automaticconfirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or thre is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See: Narain Singh, Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/(SC). Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 of 1962, D/(SC), G. S. Ramaswamy v. Inspector General of Police, Mysore State, Civil Appeals Nos. 972 to 977 of 1963, D/= (reported in AIR 1966 SC 175 ). The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post ofwas that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien.10. The suggestion that since he had occupied a class I post tillhe should have been absorbed in an equivalent post like that of an Executive Engineer, has no merit at all. It is true that by the reversion to Class II post he suffers great pecuniary loss but that could not be helped because he must known when he applied for this temporary post that after all he was holding it for a temporary period and after the abolition of the post he was liable to be reverted to his original post. Though it is true that in the advertisement of the post it was stated that the post was "likely to continue" afterbut that was no assurance that the post would be madeHigh Court has found no substance in the allegation of mala fides. If, in the interest of the Administration, the temporary post is abolished, the question as to what were the personal relations between the appellant and his superiors was irrelevant. Moreover, all that the appellant has been able to say is that his immediate superiors in the Department were hostile to him. But here we are concerned not with the action of his immediate superiors but the action of the Government. The decision to discontinue the post was the decision of the Government and it is not alleged in the Writ Petition that in taking this decision the Government acted mala fide. We, therefore, agree with the High Court that there is no substance in the allegation that the post was discontinued or abolished in order to punish the appellant.12. It is a tragedy that it has not been possible to utilize the services of a highly qualified Officer like the appellant in an appropriate post which could bring the best out of him.However, we can do no more than express our sympathy. | 0 | 2,971 | 1,030 | ### 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:
these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automatic confirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or thre is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See: Narain Singh, Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/- 29-1-1964 (SC). Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 of 1962, D/- 23-1-1964 (SC), G. S. Ramaswamy v. Inspector General of Police, Mysore State, Civil Appeals Nos. 972 to 977 of 1963, D/- 21-1-1964 = (reported in AIR 1966 SC 175 ). The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post of 4-11-1958 was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien.10. The suggestion that since he had occupied a class I post till 4-11-1958 he should have been absorbed in an equivalent post like that of an Executive Engineer, has no merit at all. It is true that by the reversion to Class II post he suffers great pecuniary loss but that could not be helped because he must known when he applied for this temporary post that after all he was holding it for a temporary period and after the abolition of the post he was liable to be reverted to his original post. Though it is true that in the advertisement of the post it was stated that the post was "likely to continue" after 28-2-55, but that was no assurance that the post would be made permanent.11. The second ground of attack based on mala fides is as follows. According to the appellant, soon after he assumed charges of his new post he made disclosures of several irregularities which had taken place in the project and this made him a persona-non-grata with the senior Officers of his Department including the Chief Engineer and the Superintending Engineer of the Capital Project. He also alleged that the Project Administration did not like his appointment as Landscape Architect, and every opportunity was taken to condemn him. Adverse Confidential Reports were made against him which, though at one stage were ordered to be expunged by the Government, were later restored. Since the Administration found no way of removing him from the post, they decided to abolish the post which he was holding though, in the opinion of the appellant, the post was essential and necessary to be continued. In other words, the appellants contention is that the Administration sought to achieve his removal from the post not by taking in a straight-forward manner disciplinary action against him but by maliciously abolishing the post. These allegations are denied on behalf of the State. According to the State the Capital Project itself was a temporary project and the post of the Landscape Architect was a temporary post. As a matter of fact in the very first instance in the advertisement for the post, it was stated to be for a short period namely till 28-2-1955. It was found in due course that the post was no longer useful and was abolished after the question of its continuance had been examined by the Special Committee consisting of Ch. Surajmal, Public Works Minister, Shri M. S. Randhava and Shri Swaroop Krishan. The Committee recommended that the continuance of the post was not necessary and it should be abolished forthwith. Government accepted this recommendation and discontinued the post, which till 4-11-1958, had been continued from time to time by orders extending its duration. The High Court has found no substance in the allegation of mala fides. If, in the interest of the Administration, the temporary post is abolished, the question as to what were the personal relations between the appellant and his superiors was irrelevant. Moreover, all that the appellant has been able to say is that his immediate superiors in the Department were hostile to him. But here we are concerned not with the action of his immediate superiors but the action of the Government. The decision to discontinue the post was the decision of the Government and it is not alleged in the Writ Petition that in taking this decision the Government acted mala fide. We, therefore, agree with the High Court that there is no substance in the allegation that the post was discontinued or abolished in order to punish the appellant.12. It is a tragedy that it has not been possible to utilize the services of a highly qualified Officer like the appellant in an appropriate post which could bring the best out of him.However, we can do no more than express our sympathy.
### Response:
0
### Explanation:
Though in the last note datedthe Revenue Minister had stated that the Government had ordered the appellants confirmation that was obviously a slip of memory. There was no Government order confirming the appellant. All that the Revenue Minister had done onwas to suggest to the Secretary that the appellant should be confirmed on the completion of his probation. That suggestion could not be implemented owing to the nature of the post which the appellant had held. Onwhen the Revenue Minister made the above note he was no longer in charge of the Capital Project. It is obvious that these notings by the Minister with regard to the confirmation of the appellant could not be implemented as under the rules the appellants confirmation in the temporary post of Landscape Architect was impossible. The appellant, theerfore, was not entitled to rely upon these notings for proving the fact that he had been actually confirmed when it is admitted that no effective order confirming him in that post was ever passed or communicated to him.9.It was next contended that even if it is assumed that he was not confirmed by the Government in the post, it must be held that he was automatically confirmed in the post after the first six months ofprobation. He was a Government servant before he accepted this post and under the terms of appointment already referred to, he was on probation for six months. The period of probation was over onIt is the contention of the appellant that on the expiry of this period of probation he was automatically confirmed. The record, however, shows that the probationary period was extended by the Government from time to time though the orders were made with retrospective effect. Theappellant contends that these orders extending the period of probation were irregular and illegal. Either he should have been discharged within the first six months of probation, or, if he was not so discharged he was entitled to automaticconfirmation. We do not think that this contention is correct. The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or thre is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. See: Narain Singh, Ahluwalia v. State of Punjab, Civil Appeal No. 492 of 1963, D/(SC). Accountant General Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar, Civil Appeal No. 548 of 1962, D/(SC), G. S. Ramaswamy v. Inspector General of Police, Mysore State, Civil Appeals Nos. 972 to 977 of 1963, D/= (reported in AIR 1966 SC 175 ). The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation. The position of the appellant, therefore, till the abolition of the post ofwas that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien.10. The suggestion that since he had occupied a class I post tillhe should have been absorbed in an equivalent post like that of an Executive Engineer, has no merit at all. It is true that by the reversion to Class II post he suffers great pecuniary loss but that could not be helped because he must known when he applied for this temporary post that after all he was holding it for a temporary period and after the abolition of the post he was liable to be reverted to his original post. Though it is true that in the advertisement of the post it was stated that the post was "likely to continue" afterbut that was no assurance that the post would be madeHigh Court has found no substance in the allegation of mala fides. If, in the interest of the Administration, the temporary post is abolished, the question as to what were the personal relations between the appellant and his superiors was irrelevant. Moreover, all that the appellant has been able to say is that his immediate superiors in the Department were hostile to him. But here we are concerned not with the action of his immediate superiors but the action of the Government. The decision to discontinue the post was the decision of the Government and it is not alleged in the Writ Petition that in taking this decision the Government acted mala fide. We, therefore, agree with the High Court that there is no substance in the allegation that the post was discontinued or abolished in order to punish the appellant.12. It is a tragedy that it has not been possible to utilize the services of a highly qualified Officer like the appellant in an appropriate post which could bring the best out of him.However, we can do no more than express our sympathy.
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Industrial Factors Limited Vs. V. Prasad, Regional Provident Fund Commissioner, Maharashtra and Goa & Others | referred to several other rulings in paragraph 7 of its judgment following the view of Tendolkar, J., (of this Court) in Chagganlal Textile Mills Pvt. Ltd. v. P.A. Bhaskar), to the effect :---Even a complete change in the whole body of employee cannot make a factory which is establishes, ceased to be established. In any event the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no portion to the Court but to accept such an interpretation.The Supreme Court also observed---The Act being a beneficiant statute and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction. If a period of three years has elapsed from the date of the establishment of a factory, the Act would become applicable provided other conditions are satisfied. The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not elapsed from the date of the establishment of the factory in question. It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory. And further---.the Act has been brought into force in order to provide for the institution of provident funds for the benefit of the employees and establishments. Article 43 of the Constitution requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise among other conditions of work ensuring a decent standard of life and full enjoyment of leisure. The provision of the provident fund scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned. Therefore, the Act should be construed so as to advance the object with which it is passed. Any construction which would facilitate evasion of the provisions of the Act should as far as possible be avoided.6. In (Bharat Board Mills v. The Regional Provident Fund Commissioner)3, A.I.R. 1957 Calcutta 702, it was held that the date of establishment of a factory is the date when the factory starts its manufacturing process. The fact that a new Company or concern subsequently takes over or acquires the factory does not shift the date of establishment of the factory to the date of its taking over or acquisition. In (Jamnadas Agarwalla v. The Regional Provident Fund Commissioner)4, A.I.R. 1963 Calcutta 513, the same principles was reiterated vide paragraph 12 of the judgment. This view also finds support in the Supreme Courts ruling in Sayaji Mills case supra. Moreover, even if the view urged by Mr. Bhatkal can at all be said to be nevertheless a possible view of the matter, there should be no doubt that the view, which furthers the objectives of the Act and the directive principles embodied in the Constitution, must be given effect to.7. It is well remember that the Act is a benevolent piece of legislation. It provides for the institution of provident fund, family pension fund and deposit-link insurance fund for employees in factories and other establishments. The focus of the benevolent objects is the employee and his welfare. Subject to section 16, the Act applies to every establishment comprehensively covered by sections 1(3) and (4). And once the establishment is so covered, it shall, by virtue of section 1(5) continue to be so covered notwithstanding that the number of employees therein at any time falls below twenty. The coverage, therefore, is co-extensive with the life of the establishment. Section 16 is an exemption provision. It must, therefore, be strictly construed. An establishment once set up, the statutory infancy period commences to run. Subsequent changes of location, ownership, management or control makes no difference and does not result in extension of the date on which the establishment is or has been set up nor will it result in benefit once again of the infancy period already availed of by the establishment. Any other interpretation will leave the door wide open for ingenious evasion of the Act. Judicial interpretation of a welfare legislation must be geared to its fulfilment and not its frustration. Welfare legislation must be liberally construed so as to advance and not retard its benevolent purpose, so as to widen and not restrict its legitimate coverage. In all the circumstances therefore, the impugned orders are well justified and deserve to be upheld.8. On the amount, we have as annexure M to the petition the figures of Rs. 24,269.00 under account No. I and Rs. 4.143.50 under No. II account making a total of Rs. 28,412.50. This is a statement based upon extensive details given by the petitioners in their annexure and chart to this petition. There is no return filed. Even in this course of hearing the respondents learned Counsel Mr. Desai did not challenge these figures. In the circumstances, we see no good reason for nevertheless sending back the matter only for the purpose of determining the undisputed amounts. We are inclined to accept the uncontroverted figures supra and which have remained unchallenged all these eight years and more before this Court. In the circumstances, we direct the petitioners to deposit with the Regional Provident Fund Commissioner Rs. 28,412.50 latest by 31st October, 1988. In default, the said amount shall then be deposited with interest thereon from today till actual payment at the rate of 18% per annum in addition to such penalty or penalties as the petitioners may become liable to pay such default. | 0[ds]The case is clearly distinguishable. The press there was sold away; the machinery here was given on lease. The machinery of the press there was altered; the machinery here remained the same. The workers there were not continued; the workers here were continued in employment compensation was paid to the workmen there at the time of the sale by the previous owner; there is in such evidence here. Besides this very authority was referred to by the Supreme Court in (Sayaji Mills Ltd. v. Regional Provident Fund Commissioner)2, (1985)1 Labour Law Journal 238 and distinguished. The Supreme Court has therein also referred to several other rulings in paragraph 7 of its judgment following the view of Tendolkar, J., (of this Court) in Chagganlal Textile Mills Pvt. Ltd. v. P.A. Bhaskar), to the effecta complete change in the whole body of employee cannot make a factory which is establishes, ceased to be established. In any event the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no portion to the Court but to accept such an interpretation.It is well remember that the Act is a benevolent piece of legislation. It provides for the institution of provident fund, family pension fund andinsurance fund for employees in factories and other establishments. The focus of the benevolent objects is the employee and his welfare. Subject to section 16, the Act applies to every establishment comprehensively covered by sections 1(3) and (4). And once the establishment is so covered, it shall, by virtue of section 1(5) continue to be so covered notwithstanding that the number of employees therein at any time falls below twenty. The coverage, therefore, iswith the life of the establishment. Section 16 is an exemption provision. It must, therefore, be strictly construed. An establishment once set up, the statutory infancy period commences to run. Subsequent changes of location, ownership, management or control makes no difference and does not result in extension of the date on which the establishment is or has been set up nor will it result in benefit once again of the infancy period already availed of by the establishment. Any other interpretation will leave the door wide open for ingenious evasion of the Act. Judicial interpretation of a welfare legislation must be geared to its fulfilment and not its frustration. Welfare legislation must be liberally construed so as to advance and not retard its benevolent purpose, so as to widen and not restrict its legitimate coverage. In all the circumstances therefore, the impugned orders are well justified and deserve to be upheld.8. On the amount, we have as annexure M to the petition the figures of Rs. 24,269.00 under account No. I and Rs. 4.143.50 under No. II account making a total of Rs. 28,412.50. This is a statement based upon extensive details given by the petitioners in their annexure and chart to this petition. There is no return filed. Even in this course of hearing the respondents learned Counsel Mr. Desai did not challenge these figures. In the circumstances, we see no good reason for nevertheless sending back the matter only for the purpose of determining the undisputed amounts. We are inclined to accept the uncontroverted figures supra and which have remained unchallenged all these eight years and more before this Court. In the circumstances, we direct the petitioners to deposit with the Regional Provident Fund Commissioner Rs. 28,412.50 latest by 31st October, 1988. In default, the said amount shall then be deposited with interest thereon from today till actual payment at the rate of 18% per annum in addition to such penalty or penalties as the petitioners may become liable to pay such default. | 0 | 2,035 | 729 | ### 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:
referred to several other rulings in paragraph 7 of its judgment following the view of Tendolkar, J., (of this Court) in Chagganlal Textile Mills Pvt. Ltd. v. P.A. Bhaskar), to the effect :---Even a complete change in the whole body of employee cannot make a factory which is establishes, ceased to be established. In any event the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no portion to the Court but to accept such an interpretation.The Supreme Court also observed---The Act being a beneficiant statute and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction. If a period of three years has elapsed from the date of the establishment of a factory, the Act would become applicable provided other conditions are satisfied. The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not elapsed from the date of the establishment of the factory in question. It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory. And further---.the Act has been brought into force in order to provide for the institution of provident funds for the benefit of the employees and establishments. Article 43 of the Constitution requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise among other conditions of work ensuring a decent standard of life and full enjoyment of leisure. The provision of the provident fund scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned. Therefore, the Act should be construed so as to advance the object with which it is passed. Any construction which would facilitate evasion of the provisions of the Act should as far as possible be avoided.6. In (Bharat Board Mills v. The Regional Provident Fund Commissioner)3, A.I.R. 1957 Calcutta 702, it was held that the date of establishment of a factory is the date when the factory starts its manufacturing process. The fact that a new Company or concern subsequently takes over or acquires the factory does not shift the date of establishment of the factory to the date of its taking over or acquisition. In (Jamnadas Agarwalla v. The Regional Provident Fund Commissioner)4, A.I.R. 1963 Calcutta 513, the same principles was reiterated vide paragraph 12 of the judgment. This view also finds support in the Supreme Courts ruling in Sayaji Mills case supra. Moreover, even if the view urged by Mr. Bhatkal can at all be said to be nevertheless a possible view of the matter, there should be no doubt that the view, which furthers the objectives of the Act and the directive principles embodied in the Constitution, must be given effect to.7. It is well remember that the Act is a benevolent piece of legislation. It provides for the institution of provident fund, family pension fund and deposit-link insurance fund for employees in factories and other establishments. The focus of the benevolent objects is the employee and his welfare. Subject to section 16, the Act applies to every establishment comprehensively covered by sections 1(3) and (4). And once the establishment is so covered, it shall, by virtue of section 1(5) continue to be so covered notwithstanding that the number of employees therein at any time falls below twenty. The coverage, therefore, is co-extensive with the life of the establishment. Section 16 is an exemption provision. It must, therefore, be strictly construed. An establishment once set up, the statutory infancy period commences to run. Subsequent changes of location, ownership, management or control makes no difference and does not result in extension of the date on which the establishment is or has been set up nor will it result in benefit once again of the infancy period already availed of by the establishment. Any other interpretation will leave the door wide open for ingenious evasion of the Act. Judicial interpretation of a welfare legislation must be geared to its fulfilment and not its frustration. Welfare legislation must be liberally construed so as to advance and not retard its benevolent purpose, so as to widen and not restrict its legitimate coverage. In all the circumstances therefore, the impugned orders are well justified and deserve to be upheld.8. On the amount, we have as annexure M to the petition the figures of Rs. 24,269.00 under account No. I and Rs. 4.143.50 under No. II account making a total of Rs. 28,412.50. This is a statement based upon extensive details given by the petitioners in their annexure and chart to this petition. There is no return filed. Even in this course of hearing the respondents learned Counsel Mr. Desai did not challenge these figures. In the circumstances, we see no good reason for nevertheless sending back the matter only for the purpose of determining the undisputed amounts. We are inclined to accept the uncontroverted figures supra and which have remained unchallenged all these eight years and more before this Court. In the circumstances, we direct the petitioners to deposit with the Regional Provident Fund Commissioner Rs. 28,412.50 latest by 31st October, 1988. In default, the said amount shall then be deposited with interest thereon from today till actual payment at the rate of 18% per annum in addition to such penalty or penalties as the petitioners may become liable to pay such default.
### Response:
0
### Explanation:
The case is clearly distinguishable. The press there was sold away; the machinery here was given on lease. The machinery of the press there was altered; the machinery here remained the same. The workers there were not continued; the workers here were continued in employment compensation was paid to the workmen there at the time of the sale by the previous owner; there is in such evidence here. Besides this very authority was referred to by the Supreme Court in (Sayaji Mills Ltd. v. Regional Provident Fund Commissioner)2, (1985)1 Labour Law Journal 238 and distinguished. The Supreme Court has therein also referred to several other rulings in paragraph 7 of its judgment following the view of Tendolkar, J., (of this Court) in Chagganlal Textile Mills Pvt. Ltd. v. P.A. Bhaskar), to the effecta complete change in the whole body of employee cannot make a factory which is establishes, ceased to be established. In any event the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no portion to the Court but to accept such an interpretation.It is well remember that the Act is a benevolent piece of legislation. It provides for the institution of provident fund, family pension fund andinsurance fund for employees in factories and other establishments. The focus of the benevolent objects is the employee and his welfare. Subject to section 16, the Act applies to every establishment comprehensively covered by sections 1(3) and (4). And once the establishment is so covered, it shall, by virtue of section 1(5) continue to be so covered notwithstanding that the number of employees therein at any time falls below twenty. The coverage, therefore, iswith the life of the establishment. Section 16 is an exemption provision. It must, therefore, be strictly construed. An establishment once set up, the statutory infancy period commences to run. Subsequent changes of location, ownership, management or control makes no difference and does not result in extension of the date on which the establishment is or has been set up nor will it result in benefit once again of the infancy period already availed of by the establishment. Any other interpretation will leave the door wide open for ingenious evasion of the Act. Judicial interpretation of a welfare legislation must be geared to its fulfilment and not its frustration. Welfare legislation must be liberally construed so as to advance and not retard its benevolent purpose, so as to widen and not restrict its legitimate coverage. In all the circumstances therefore, the impugned orders are well justified and deserve to be upheld.8. On the amount, we have as annexure M to the petition the figures of Rs. 24,269.00 under account No. I and Rs. 4.143.50 under No. II account making a total of Rs. 28,412.50. This is a statement based upon extensive details given by the petitioners in their annexure and chart to this petition. There is no return filed. Even in this course of hearing the respondents learned Counsel Mr. Desai did not challenge these figures. In the circumstances, we see no good reason for nevertheless sending back the matter only for the purpose of determining the undisputed amounts. We are inclined to accept the uncontroverted figures supra and which have remained unchallenged all these eight years and more before this Court. In the circumstances, we direct the petitioners to deposit with the Regional Provident Fund Commissioner Rs. 28,412.50 latest by 31st October, 1988. In default, the said amount shall then be deposited with interest thereon from today till actual payment at the rate of 18% per annum in addition to such penalty or penalties as the petitioners may become liable to pay such default.
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UNION OF INDIA Vs. MOHIUDDIN MASOOD | with the enquiry under Section 5A of the Act. However, considering the chronological list of dates and events and the object and purpose for which the land was sought to be acquired, we are of the opinion that the High Court has materially erred in holding that invocation of the urgency clause was bad. The High Court has failed to appreciate and consider the fact that there was a time gap of only three months between the notification under Section 4 and notification under Section 6 respectively of the Act. 6.2 Even there was not much delay in considering the request made by the ITBP to acquire the land. Right from the very beginning the ITBP requested to acquire the land urgently as the land was urgently required by the ITBP to establish Battalion headquarter due to increase in Counter Insurgency Operations, Law and order duties of ITBP and Disaster Management Operations. It is required to be noted that for establishing such Battalion headquarter a large chunk of land approximately 72 to 75 acres of land was required. Such a huge land was required to be first identified at suitable places. Therefore, some time is bound to be consumed between the proposal and issuance of the notification under Section 4 of the Act. The said aspect has not at all been considered by the High Court. Therefore, merely that some time had been taken in identifying the land and in issuing actual Section 4 notification, the High Court is not justified in observing that there was no urgency at all and/or there were no grounds to invoke the urgency clause. Therefore, in the facts and circumstances of the case and considering the material on record, we are of the opinion that the High Court has erred in observing and holding that invocation of the urgency clause was bad. We are more than satisfied that there was a real urgency and therefore the urgency clause and Section 17 of the Act was rightly invoked dispensing with the enquiry under Section 5A of the Act. Therefore, in the facts and circumstances of the case, the decisions of this Court relied upon by the learned Senior Advocate appearing on behalf of respondent nos. 1 & 2, referred to hereinabove, shall not be applicable to the facts of the case on hand, more particularly in the relied upon cases the acquisitions were either for private parties and/or companies and in the present case the acquisition was for establishing ITBP Battalion headquarter. 6.3 It is also required to be noted that on the land in question total admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398 hectares) there is a development on 90 to 95% of the land acquired and 90 to 95% of the land has been put to use by the ITBP. It is also required to be noted that so far as respondent nos. 1 & 2 herein are concerned, out of the total land acquired, they were the owners/tenure holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares and 2354 area 0.2970 hectare only. As observed hereinabove, the total land acquired was 28.1398 hectares and other land owners have not questioned the acquisition. Therefore also, the High Court ought not to have set aside the notifications under Sections 4 & 6 respectively of the Act which were with respect to the acquisition of large chunk of land admeasuring 28.1398 hectares, which was not under challenge by the other land owners except respondent nos. 1 & 2 herein – original writ petitioners. 6.4 Now so far as the submission on behalf of the original writ petitioners that there is a non-compliance of Section 17(4) of the Act as 80% of the estimated amount of compensation was not deposited is concerned, at this stage, counter affidavit filed by the Tehsildar before the High Court is required to be considered. In the counter affidavit, it has been specifically stated that after the notification under Section 4 of the Act was issued, the ITBP has deposited 10% of estimated compensation amounting to Rs.3026675.00 vide treasury challan dated 17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of 20% of estimated compensation amounting to Rs.6053350.00 vide treasury challan dated 22.01.2010. In the counter affidavit, it is also stated that notice dated 16.03.2010 was issued to the tenure holders to take 80% of the estimated amount of compensation but they did not come to take the compensation. Therefore, it cannot be said that there is a non-compliance of Section 17(4) of the Act and the tenure holders/land owners were not paid the 80% estimated amount of compensation as required. 6.5 Considering the aforesaid facts and circumstances of the case and in the peculiar facts and circumstances of the case, we are of the opinion that the High Court is not justified in setting aside the notifications under Sections 4 & 6 respectively of the Act and/or observing and holding that the invocation of Section 17 of the Act and urgency clause was bad. 7. Now so far as submission on behalf of the original writ petitioners that they have not been paid any compensation is concerned, it is required to be noted and as observed hereinabove, in fact, ITBP had deposited the estimated amount of compensation in the year 2009/2010 itself and the land owners/tenure holders were served with the notice to withdraw and/or take 80% of the estimated amount of compensation but they refused to take the compensation. Therefore, thereafter it is not open for the original writ petitioners to make the grievance that they have not been paid any compensation. Still, it will be open to them to withdraw the amount of compensation. At this stage, it is required to be noted that in the year 2010 itself, final award directing adjudgment of the compensation to the tune of Rs.63309176.41 inclusive of solatium was published before that writ petition was filed and compensation was not accepted. | 1[ds]6. We have heard the learned counsel appearing on behalf of the respective parties at length6.1 We have gone through and considered in detail the impugned judgment and order passed by the High Court. We have also considered the chronological dates and events leading to the issuance of the notification under Section 4 of the Act and thereafter issuance of the notification under Section 6 of the Act invoking the urgency clause. At the outset, it is required to be noted that by the impugned judgment and order the High Court has held invocation of urgency clause and invocation of Section 17 of the Act as bad by observing that there were no justifiable reasons to invoke the urgency clause and dispensing with the enquiry under Section 5A of the Act. However, considering the chronological list of dates and events and the object and purpose for which the land was sought to be acquired, we are of the opinion that the High Court has materially erred in holding that invocation of the urgency clause was bad. The High Court has failed to appreciate and consider the fact that there was a time gap of only three months between the notification under Section 4 and notification under Section 6 respectively of the Act6.2 Even there was not much delay in considering the request made by the ITBP to acquire the land. Right from the very beginning the ITBP requested to acquire the land urgently as the land was urgently required by the ITBP to establish Battalion headquarter due to increase in Counter Insurgency Operations, Law and order duties of ITBP and Disaster Management Operations. It is required to be noted that for establishing such Battalion headquarter a large chunk of land approximately 72 to 75 acres of land was required. Such a huge land was required to be first identified at suitable places. Therefore, some time is bound to be consumed between the proposal and issuance of the notification under Section 4 of the Act. The said aspect has not at all been considered by the High Court. Therefore, merely that some time had been taken in identifying the land and in issuing actual Section 4 notification, the High Court is not justified in observing that there was no urgency at all and/or there were no grounds to invoke the urgency clause. Therefore, in the facts and circumstances of the case and considering the material on record, we are of the opinion that the High Court has erred in observing and holding that invocation of the urgency clause was bad. We are more than satisfied that there was a real urgency and therefore the urgency clause and Section 17 of the Act was rightly invoked dispensing with the enquiry under Section 5A of the Act. Therefore, in the facts and circumstances of the case, the decisions of this Court relied upon by the learned Senior Advocate appearing on behalf of respondent nos. 1 & 2, referred to hereinabove, shall not be applicable to the facts of the case on hand, more particularly in the relied upon cases the acquisitions were either for private parties and/or companies and in the present case the acquisition was for establishing ITBP Battalion headquarter6.3 It is also required to be noted that on the land in question total admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398 hectares) there is a development on 90 to 95% of the land acquired and 90 to 95% of the land has been put to use by the ITBP. It is also required to be noted that so far as respondent nos. 1 & 2 herein are concerned, out of the total land acquired, they were the owners/tenure holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares and 2354 area 0.2970 hectare only. As observed hereinabove, the total land acquired was 28.1398 hectares and other land owners have not questioned the acquisition. Therefore also, the High Court ought not to have set aside the notifications under Sections 4 & 6 respectively of the Act which were with respect to the acquisition of large chunk of land admeasuring 28.1398 hectares, which was not under challenge by the other land owners except respondent nos. 1 & 2 herein – original writ4 Now so far as the submission on behalf of the original writ petitioners that there is a non-compliance of Section 17(4) of the Act as 80% of the estimated amount of compensation was not deposited is concerned, at this stage, counter affidavit filed by the Tehsildar before the High Court is required to be considered. In the counter affidavit, it has been specifically stated that after the notification under Section 4 of the Act was issued, the ITBP has deposited 10% of estimated compensation amounting to Rs.3026675.00 vide treasury challan dated 17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of 20% of estimated compensation amounting to Rs.6053350.00 vide treasury challan dated 22.01.2010. In the counter affidavit, it is also stated that notice dated 16.03.2010 was issued to the tenure holders to take 80% of the estimated amount of compensation but they did not come to take the compensation. Therefore, it cannot be said that there is a non-compliance of Section 17(4) of the Act and the tenure holders/land owners were not paid the 80% estimated amount of compensation as required6.5 Considering the aforesaid facts and circumstances of the case and in the peculiar facts and circumstances of the case, we are of the opinion that the High Court is not justified in setting aside the notifications under Sections 4 & 6 respectively of the Act and/or observing and holding that the invocation of Section 17 of the Act and urgency clause was bad7. Now so far as submission on behalf of the original writ petitioners that they have not been paid any compensation is concerned, it is required to be noted and as observed hereinabove, in fact, ITBP had deposited the estimated amount of compensation in the year 2009/2010 itself and the land owners/tenure holders were served with the notice to withdraw and/or take 80% of the estimated amount of compensation but they refused to take the compensation. Therefore, thereafter it is not open for the original writ petitioners to make the grievance that they have not been paid any compensation. Still, it will be open to them to withdraw the amount of compensation. At this stage, it is required to be noted that in the year 2010 itself, final award directing adjudgment of the compensation to the tune of Rs.63309176.41 inclusive of solatium was published before that writ petition was filed and compensation was not accepted. | 1 | 3,380 | 1,202 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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with the enquiry under Section 5A of the Act. However, considering the chronological list of dates and events and the object and purpose for which the land was sought to be acquired, we are of the opinion that the High Court has materially erred in holding that invocation of the urgency clause was bad. The High Court has failed to appreciate and consider the fact that there was a time gap of only three months between the notification under Section 4 and notification under Section 6 respectively of the Act. 6.2 Even there was not much delay in considering the request made by the ITBP to acquire the land. Right from the very beginning the ITBP requested to acquire the land urgently as the land was urgently required by the ITBP to establish Battalion headquarter due to increase in Counter Insurgency Operations, Law and order duties of ITBP and Disaster Management Operations. It is required to be noted that for establishing such Battalion headquarter a large chunk of land approximately 72 to 75 acres of land was required. Such a huge land was required to be first identified at suitable places. Therefore, some time is bound to be consumed between the proposal and issuance of the notification under Section 4 of the Act. The said aspect has not at all been considered by the High Court. Therefore, merely that some time had been taken in identifying the land and in issuing actual Section 4 notification, the High Court is not justified in observing that there was no urgency at all and/or there were no grounds to invoke the urgency clause. Therefore, in the facts and circumstances of the case and considering the material on record, we are of the opinion that the High Court has erred in observing and holding that invocation of the urgency clause was bad. We are more than satisfied that there was a real urgency and therefore the urgency clause and Section 17 of the Act was rightly invoked dispensing with the enquiry under Section 5A of the Act. Therefore, in the facts and circumstances of the case, the decisions of this Court relied upon by the learned Senior Advocate appearing on behalf of respondent nos. 1 & 2, referred to hereinabove, shall not be applicable to the facts of the case on hand, more particularly in the relied upon cases the acquisitions were either for private parties and/or companies and in the present case the acquisition was for establishing ITBP Battalion headquarter. 6.3 It is also required to be noted that on the land in question total admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398 hectares) there is a development on 90 to 95% of the land acquired and 90 to 95% of the land has been put to use by the ITBP. It is also required to be noted that so far as respondent nos. 1 & 2 herein are concerned, out of the total land acquired, they were the owners/tenure holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares and 2354 area 0.2970 hectare only. As observed hereinabove, the total land acquired was 28.1398 hectares and other land owners have not questioned the acquisition. Therefore also, the High Court ought not to have set aside the notifications under Sections 4 & 6 respectively of the Act which were with respect to the acquisition of large chunk of land admeasuring 28.1398 hectares, which was not under challenge by the other land owners except respondent nos. 1 & 2 herein – original writ petitioners. 6.4 Now so far as the submission on behalf of the original writ petitioners that there is a non-compliance of Section 17(4) of the Act as 80% of the estimated amount of compensation was not deposited is concerned, at this stage, counter affidavit filed by the Tehsildar before the High Court is required to be considered. In the counter affidavit, it has been specifically stated that after the notification under Section 4 of the Act was issued, the ITBP has deposited 10% of estimated compensation amounting to Rs.3026675.00 vide treasury challan dated 17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of 20% of estimated compensation amounting to Rs.6053350.00 vide treasury challan dated 22.01.2010. In the counter affidavit, it is also stated that notice dated 16.03.2010 was issued to the tenure holders to take 80% of the estimated amount of compensation but they did not come to take the compensation. Therefore, it cannot be said that there is a non-compliance of Section 17(4) of the Act and the tenure holders/land owners were not paid the 80% estimated amount of compensation as required. 6.5 Considering the aforesaid facts and circumstances of the case and in the peculiar facts and circumstances of the case, we are of the opinion that the High Court is not justified in setting aside the notifications under Sections 4 & 6 respectively of the Act and/or observing and holding that the invocation of Section 17 of the Act and urgency clause was bad. 7. Now so far as submission on behalf of the original writ petitioners that they have not been paid any compensation is concerned, it is required to be noted and as observed hereinabove, in fact, ITBP had deposited the estimated amount of compensation in the year 2009/2010 itself and the land owners/tenure holders were served with the notice to withdraw and/or take 80% of the estimated amount of compensation but they refused to take the compensation. Therefore, thereafter it is not open for the original writ petitioners to make the grievance that they have not been paid any compensation. Still, it will be open to them to withdraw the amount of compensation. At this stage, it is required to be noted that in the year 2010 itself, final award directing adjudgment of the compensation to the tune of Rs.63309176.41 inclusive of solatium was published before that writ petition was filed and compensation was not accepted.
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invoke the urgency clause and dispensing with the enquiry under Section 5A of the Act. However, considering the chronological list of dates and events and the object and purpose for which the land was sought to be acquired, we are of the opinion that the High Court has materially erred in holding that invocation of the urgency clause was bad. The High Court has failed to appreciate and consider the fact that there was a time gap of only three months between the notification under Section 4 and notification under Section 6 respectively of the Act6.2 Even there was not much delay in considering the request made by the ITBP to acquire the land. Right from the very beginning the ITBP requested to acquire the land urgently as the land was urgently required by the ITBP to establish Battalion headquarter due to increase in Counter Insurgency Operations, Law and order duties of ITBP and Disaster Management Operations. It is required to be noted that for establishing such Battalion headquarter a large chunk of land approximately 72 to 75 acres of land was required. Such a huge land was required to be first identified at suitable places. Therefore, some time is bound to be consumed between the proposal and issuance of the notification under Section 4 of the Act. The said aspect has not at all been considered by the High Court. Therefore, merely that some time had been taken in identifying the land and in issuing actual Section 4 notification, the High Court is not justified in observing that there was no urgency at all and/or there were no grounds to invoke the urgency clause. Therefore, in the facts and circumstances of the case and considering the material on record, we are of the opinion that the High Court has erred in observing and holding that invocation of the urgency clause was bad. We are more than satisfied that there was a real urgency and therefore the urgency clause and Section 17 of the Act was rightly invoked dispensing with the enquiry under Section 5A of the Act. Therefore, in the facts and circumstances of the case, the decisions of this Court relied upon by the learned Senior Advocate appearing on behalf of respondent nos. 1 & 2, referred to hereinabove, shall not be applicable to the facts of the case on hand, more particularly in the relied upon cases the acquisitions were either for private parties and/or companies and in the present case the acquisition was for establishing ITBP Battalion headquarter6.3 It is also required to be noted that on the land in question total admeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398 hectares) there is a development on 90 to 95% of the land acquired and 90 to 95% of the land has been put to use by the ITBP. It is also required to be noted that so far as respondent nos. 1 & 2 herein are concerned, out of the total land acquired, they were the owners/tenure holders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectares and 2354 area 0.2970 hectare only. As observed hereinabove, the total land acquired was 28.1398 hectares and other land owners have not questioned the acquisition. Therefore also, the High Court ought not to have set aside the notifications under Sections 4 & 6 respectively of the Act which were with respect to the acquisition of large chunk of land admeasuring 28.1398 hectares, which was not under challenge by the other land owners except respondent nos. 1 & 2 herein – original writ4 Now so far as the submission on behalf of the original writ petitioners that there is a non-compliance of Section 17(4) of the Act as 80% of the estimated amount of compensation was not deposited is concerned, at this stage, counter affidavit filed by the Tehsildar before the High Court is required to be considered. In the counter affidavit, it has been specifically stated that after the notification under Section 4 of the Act was issued, the ITBP has deposited 10% of estimated compensation amounting to Rs.3026675.00 vide treasury challan dated 17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00 vide treasury challan dated 05.01.2009 and rest of 20% of estimated compensation amounting to Rs.6053350.00 vide treasury challan dated 22.01.2010. In the counter affidavit, it is also stated that notice dated 16.03.2010 was issued to the tenure holders to take 80% of the estimated amount of compensation but they did not come to take the compensation. Therefore, it cannot be said that there is a non-compliance of Section 17(4) of the Act and the tenure holders/land owners were not paid the 80% estimated amount of compensation as required6.5 Considering the aforesaid facts and circumstances of the case and in the peculiar facts and circumstances of the case, we are of the opinion that the High Court is not justified in setting aside the notifications under Sections 4 & 6 respectively of the Act and/or observing and holding that the invocation of Section 17 of the Act and urgency clause was bad7. Now so far as submission on behalf of the original writ petitioners that they have not been paid any compensation is concerned, it is required to be noted and as observed hereinabove, in fact, ITBP had deposited the estimated amount of compensation in the year 2009/2010 itself and the land owners/tenure holders were served with the notice to withdraw and/or take 80% of the estimated amount of compensation but they refused to take the compensation. Therefore, thereafter it is not open for the original writ petitioners to make the grievance that they have not been paid any compensation. Still, it will be open to them to withdraw the amount of compensation. At this stage, it is required to be noted that in the year 2010 itself, final award directing adjudgment of the compensation to the tune of Rs.63309176.41 inclusive of solatium was published before that writ petition was filed and compensation was not accepted.
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THE MUNICIPAL CORPORATION FARIDABAD Vs. MODERN SCHOOL FARIDABAD | dangerous petroleum.Explanation. – In this section the expression “dangerous petroleum” has the same meaning as is assigned in the Petroleum Act, 1934 (Central Act 30 of 1934).196. Application by owners and occupiers to drain into municipal drain -(1) Subject to such conditions as may be prescribed by bye-laws made in this behalf, the owner or occupier of any premises having a private drain, or the owner of any private drain within the Municipal area may apply to the Commissioner to have his drain made to communicate with the drains and thereby to discharge foul water and surface water from those premises or that private drain:Provided that nothing in this sub-section shall entitle any person –(a) to discharge directly or indirectly into any Corporation drain-(i) any trade effluent from any trade premises, except in accordance with bye-laws made in this behalf; or(ii) any liquid or other matter the discharge of which into Corporation drains is prohibited by or under this Act or any other law; or(b) where separate Corporation drains are provided for foul water and for surface water to discharge directly or indirectly: -(i) foul water into a drain provided for surface water; or(ii) except with the permission of the Commissioner, surface water into drain provided for foul water; or(c) to have his drains made to communicate directly with a storm water overflow drain.….……….xxx xxx xxx205. Connection with water works and drains not to be made without permission.-- Without the written permission of Commissioner, no person shall for any purpose whatsoever, at any time make or cause to be made any connection or communication with any drain referred to in section 194 or any water-works, constructed or maintained by, or vested in the Corporation.”14. In terms of Section 43, one of the obligatory functions of Corporation is- construction, maintenance and cleaning of drains and drainage works and also scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted mattes. It is in exercise of such function that the Municipal Corporation has provided for the disposal of the waste water from residential, commercial and industrial areas falling within the area of Municipal Corporation into its sewer drain.15. Chapter XII of the Act relates to Water Supply, Draining and Sewage disposal. Section 177 provides for water supply to the premises. Admittedly, such water supply is being provided by the Corporation to the Schools in question. The grievance of the Schools is that such supply is not adequate to meet the demand, inter alia, on account of increase of the functions of the Schools and to maintain the lawns etc. Such water connection provided to the premises of the Schools is within the scope of Section 177 of the Act as reproduced above. In terms of Section 177(2) the Corporation can claim additional charges at the rates fixed by the Government.16. In terms of Section 193, all public drains, all drains in, alongside or under any public street, and all sewage disposal works whether constructed out of the Corporation Fund or otherwise, and all works, materials vest in the Corporation. As per Section 194, all sewage disposal works and works materials are under the control of the Commissioner who is required to maintain and repair all Municipal drains and sewage disposal works. The Commissioner is also obliged to construct as many new drains and sewage disposal works as may be necessary from time to time for effectual drainage and sewage disposal.17. Section 196 enjoins the duty on the owners and occupiers having a private drain within the Municipal area to communicate with the drains of the Municipal Corporation for the purpose of discharge of foul water and surface water from their premises or that private drain. For such discharge, sub-section (2) of Section 196 creates an obligation to give a notice of proposal to connect the private drain with the Municipal drain.18. Section 205 of the Act creates a bar on any person to make or cause to be made any connection or communication with any drain referred to in Section 194 or any water works constructed or maintained by, or vested in the Corporation.19. We find that the High Court has misdirected itself when it held that the user charges claimed by the Corporation for discharge of waste water into the sewer lines of the Municipal Corporation is a fee within the meaning of Section 88 of the Act.20. The water extracted by tubewells installed by the Schools is discharged into the Municipal drains, therefore, the Corporation is justified to levy user charges whereby, the waste water of the Schools is carried by the Municipal drains.21. Though, the Schools could not discharge waste water into Municipal drains without prior permission but instead of stopping the communication of private drain with the Municipal drain, the Corporation has demanded user charges which is not a tax or fee as contemplated under Section 87 or 88 of the Act but user charges for using the Municipal services for discharge of waste water extracted by the Schools from the tubewells installed by them.22. The fact that the Municipal Corporation has claimed user charges is made out from the office order dated 14.06.1999. In response to notice, the Schools have agreed to regularise the discharge, but, disputed the levy subsequently on the ground that such fee cannot be charged being in contravention of Sections 87 and 88 of the Act.23. The documents on record leave no manner of doubt that the Corporation has not levied any tax or fee falling within the scope of Section 87 or 88 of the Act. The Corporation has claimed the user charges for permitting the Schools to discharge waste water into the Municipal drains which are related to the capacity to extract ground water.24. We do not find that such demand contravenes any of the provisions of the Act. Therefore, the Corporation was well within its right to claim user charges for the use of Municipal drains for discharge of waste water from the tubewells installed by the Schools. | 1[ds]14. In terms of Section 43, one of the obligatory functions of Corporation is- construction, maintenance and cleaning of drains and drainage works and also scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted mattes. It is in exercise of such function that the Municipal Corporation has provided for the disposal of the waste water from residential, commercial and industrial areas falling within the area of Municipal Corporation into its sewer drain.15. Chapter XII of the Act relates to Water Supply, Draining and Sewage disposal. Section 177 provides for water supply to the premises. Admittedly, such water supply is being provided by the Corporation to the Schools in question. The grievance of the Schools is that such supply is not adequate to meet the demand, inter alia, on account of increase of the functions of the Schools and to maintain the lawns etc. Such water connection provided to the premises of the Schools is within the scope of Section 177 of the Act as reproduced above. In terms of Section 177(2) the Corporation can claim additional charges at the rates fixed by the Government.16. In terms of Section 193, all public drains, all drains in, alongside or under any public street, and all sewage disposal works whether constructed out of the Corporation Fund or otherwise, and all works, materials vest in the Corporation. As per Section 194, all sewage disposal works and works materials are under the control of the Commissioner who is required to maintain and repair all Municipal drains and sewage disposal works. The Commissioner is also obliged to construct as many new drains and sewage disposal works as may be necessary from time to time for effectual drainage and sewage disposal.17. Section 196 enjoins the duty on the owners and occupiers having a private drain within the Municipal area to communicate with the drains of the Municipal Corporation for the purpose of discharge of foul water and surface water from their premises or that private drain. For such discharge, sub-section (2) of Section 196 creates an obligation to give a notice of proposal to connect the private drain with the Municipal drain.18. Section 205 of the Act creates a bar on any person to make or cause to be made any connection or communication with any drain referred to in Section 194 or any water works constructed or maintained by, or vested in the Corporation.19. We find that the High Court has misdirected itself when it held that the user charges claimed by the Corporation for discharge of waste water into the sewer lines of the Municipal Corporation is a fee within the meaning of Section 88 of the Act.20. The water extracted by tubewells installed by the Schools is discharged into the Municipal drains, therefore, the Corporation is justified to levy user charges whereby, the waste water of the Schools is carried by the Municipal drains.21. Though, the Schools could not discharge waste water into Municipal drains without prior permission but instead of stopping the communication of private drain with the Municipal drain, the Corporation has demanded user charges which is not a tax or fee as contemplated under Section 87 or 88 of the Act but user charges for using the Municipal services for discharge of waste water extracted by the Schools from the tubewells installed by them.22. The fact that the Municipal Corporation has claimed user charges is made out from the office order dated 14.06.1999. In response to notice, the Schools have agreed to regularise the discharge, but, disputed the levy subsequently on the ground that such fee cannot be charged being in contravention of Sections 87 and 88 of the Act.23. The documents on record leave no manner of doubt that the Corporation has not levied any tax or fee falling within the scope of Section 87 or 88 of the Act. The Corporation has claimed the user charges for permitting the Schools to discharge waste water into the Municipal drains which are related to the capacity to extract ground water.24. We do not find that such demand contravenes any of the provisions of the Act. Therefore, the Corporation was well within its right to claim user charges for the use of Municipal drains for discharge of waste water from the tubewells installed by the Schools. | 1 | 2,964 | 778 | ### 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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dangerous petroleum.Explanation. – In this section the expression “dangerous petroleum” has the same meaning as is assigned in the Petroleum Act, 1934 (Central Act 30 of 1934).196. Application by owners and occupiers to drain into municipal drain -(1) Subject to such conditions as may be prescribed by bye-laws made in this behalf, the owner or occupier of any premises having a private drain, or the owner of any private drain within the Municipal area may apply to the Commissioner to have his drain made to communicate with the drains and thereby to discharge foul water and surface water from those premises or that private drain:Provided that nothing in this sub-section shall entitle any person –(a) to discharge directly or indirectly into any Corporation drain-(i) any trade effluent from any trade premises, except in accordance with bye-laws made in this behalf; or(ii) any liquid or other matter the discharge of which into Corporation drains is prohibited by or under this Act or any other law; or(b) where separate Corporation drains are provided for foul water and for surface water to discharge directly or indirectly: -(i) foul water into a drain provided for surface water; or(ii) except with the permission of the Commissioner, surface water into drain provided for foul water; or(c) to have his drains made to communicate directly with a storm water overflow drain.….……….xxx xxx xxx205. Connection with water works and drains not to be made without permission.-- Without the written permission of Commissioner, no person shall for any purpose whatsoever, at any time make or cause to be made any connection or communication with any drain referred to in section 194 or any water-works, constructed or maintained by, or vested in the Corporation.”14. In terms of Section 43, one of the obligatory functions of Corporation is- construction, maintenance and cleaning of drains and drainage works and also scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted mattes. It is in exercise of such function that the Municipal Corporation has provided for the disposal of the waste water from residential, commercial and industrial areas falling within the area of Municipal Corporation into its sewer drain.15. Chapter XII of the Act relates to Water Supply, Draining and Sewage disposal. Section 177 provides for water supply to the premises. Admittedly, such water supply is being provided by the Corporation to the Schools in question. The grievance of the Schools is that such supply is not adequate to meet the demand, inter alia, on account of increase of the functions of the Schools and to maintain the lawns etc. Such water connection provided to the premises of the Schools is within the scope of Section 177 of the Act as reproduced above. In terms of Section 177(2) the Corporation can claim additional charges at the rates fixed by the Government.16. In terms of Section 193, all public drains, all drains in, alongside or under any public street, and all sewage disposal works whether constructed out of the Corporation Fund or otherwise, and all works, materials vest in the Corporation. As per Section 194, all sewage disposal works and works materials are under the control of the Commissioner who is required to maintain and repair all Municipal drains and sewage disposal works. The Commissioner is also obliged to construct as many new drains and sewage disposal works as may be necessary from time to time for effectual drainage and sewage disposal.17. Section 196 enjoins the duty on the owners and occupiers having a private drain within the Municipal area to communicate with the drains of the Municipal Corporation for the purpose of discharge of foul water and surface water from their premises or that private drain. For such discharge, sub-section (2) of Section 196 creates an obligation to give a notice of proposal to connect the private drain with the Municipal drain.18. Section 205 of the Act creates a bar on any person to make or cause to be made any connection or communication with any drain referred to in Section 194 or any water works constructed or maintained by, or vested in the Corporation.19. We find that the High Court has misdirected itself when it held that the user charges claimed by the Corporation for discharge of waste water into the sewer lines of the Municipal Corporation is a fee within the meaning of Section 88 of the Act.20. The water extracted by tubewells installed by the Schools is discharged into the Municipal drains, therefore, the Corporation is justified to levy user charges whereby, the waste water of the Schools is carried by the Municipal drains.21. Though, the Schools could not discharge waste water into Municipal drains without prior permission but instead of stopping the communication of private drain with the Municipal drain, the Corporation has demanded user charges which is not a tax or fee as contemplated under Section 87 or 88 of the Act but user charges for using the Municipal services for discharge of waste water extracted by the Schools from the tubewells installed by them.22. The fact that the Municipal Corporation has claimed user charges is made out from the office order dated 14.06.1999. In response to notice, the Schools have agreed to regularise the discharge, but, disputed the levy subsequently on the ground that such fee cannot be charged being in contravention of Sections 87 and 88 of the Act.23. The documents on record leave no manner of doubt that the Corporation has not levied any tax or fee falling within the scope of Section 87 or 88 of the Act. The Corporation has claimed the user charges for permitting the Schools to discharge waste water into the Municipal drains which are related to the capacity to extract ground water.24. We do not find that such demand contravenes any of the provisions of the Act. Therefore, the Corporation was well within its right to claim user charges for the use of Municipal drains for discharge of waste water from the tubewells installed by the Schools.
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14. In terms of Section 43, one of the obligatory functions of Corporation is- construction, maintenance and cleaning of drains and drainage works and also scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted mattes. It is in exercise of such function that the Municipal Corporation has provided for the disposal of the waste water from residential, commercial and industrial areas falling within the area of Municipal Corporation into its sewer drain.15. Chapter XII of the Act relates to Water Supply, Draining and Sewage disposal. Section 177 provides for water supply to the premises. Admittedly, such water supply is being provided by the Corporation to the Schools in question. The grievance of the Schools is that such supply is not adequate to meet the demand, inter alia, on account of increase of the functions of the Schools and to maintain the lawns etc. Such water connection provided to the premises of the Schools is within the scope of Section 177 of the Act as reproduced above. In terms of Section 177(2) the Corporation can claim additional charges at the rates fixed by the Government.16. In terms of Section 193, all public drains, all drains in, alongside or under any public street, and all sewage disposal works whether constructed out of the Corporation Fund or otherwise, and all works, materials vest in the Corporation. As per Section 194, all sewage disposal works and works materials are under the control of the Commissioner who is required to maintain and repair all Municipal drains and sewage disposal works. The Commissioner is also obliged to construct as many new drains and sewage disposal works as may be necessary from time to time for effectual drainage and sewage disposal.17. Section 196 enjoins the duty on the owners and occupiers having a private drain within the Municipal area to communicate with the drains of the Municipal Corporation for the purpose of discharge of foul water and surface water from their premises or that private drain. For such discharge, sub-section (2) of Section 196 creates an obligation to give a notice of proposal to connect the private drain with the Municipal drain.18. Section 205 of the Act creates a bar on any person to make or cause to be made any connection or communication with any drain referred to in Section 194 or any water works constructed or maintained by, or vested in the Corporation.19. We find that the High Court has misdirected itself when it held that the user charges claimed by the Corporation for discharge of waste water into the sewer lines of the Municipal Corporation is a fee within the meaning of Section 88 of the Act.20. The water extracted by tubewells installed by the Schools is discharged into the Municipal drains, therefore, the Corporation is justified to levy user charges whereby, the waste water of the Schools is carried by the Municipal drains.21. Though, the Schools could not discharge waste water into Municipal drains without prior permission but instead of stopping the communication of private drain with the Municipal drain, the Corporation has demanded user charges which is not a tax or fee as contemplated under Section 87 or 88 of the Act but user charges for using the Municipal services for discharge of waste water extracted by the Schools from the tubewells installed by them.22. The fact that the Municipal Corporation has claimed user charges is made out from the office order dated 14.06.1999. In response to notice, the Schools have agreed to regularise the discharge, but, disputed the levy subsequently on the ground that such fee cannot be charged being in contravention of Sections 87 and 88 of the Act.23. The documents on record leave no manner of doubt that the Corporation has not levied any tax or fee falling within the scope of Section 87 or 88 of the Act. The Corporation has claimed the user charges for permitting the Schools to discharge waste water into the Municipal drains which are related to the capacity to extract ground water.24. We do not find that such demand contravenes any of the provisions of the Act. Therefore, the Corporation was well within its right to claim user charges for the use of Municipal drains for discharge of waste water from the tubewells installed by the Schools.
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Commissioner of Income Tax, Calcutta & Others Vs. Gillanders Arbuthnot & Company & Another | (1) of the agreement in specific terms says that "the existing partner shall sell and the company shall purchase the shares and securities for a sum of Rupees seventyfive lakhs". Clause (3) of that agreement merely provides a mode of satisfaction of the sale price. The sale price fixed by the parties for the shares and the securities sold is 75 lakhs and nothing more. It may be that because of the allotment of the shares of the Company in satisfaction of the sale price, the assessee firm got certain benefits but that does not convert the sale into an exchange. 28. In Commr. of Income-tax Kerala v. R. R. Ramkrishna Pillai, (1967) 66 ITR 725 (SC) this Court distinguishing an exchange from a sale observed that where the person carrying on the business transfers the assets to a company in consideration of allotment of shares, it would be a case of exchange and not of sale and the true nature of the transaction will not be altered because for the purpose of stamp duty or other reason the value of the assets transferred is shown as equivalent to the face value of the shares allotted. On the other hand a person carrying on business may agree with a company floated by him that the assets belonging to him shall be transferred to the company for a certain money consideration and that in satisfaction of the liability to pay the money consideration shares of certain face value shall be allotted to the transferor. In such a case there are in truth two transactions, one transaction of sale and the other a contract under which the shares are accepted in satisfaction of the liability to pay the price. The fact that as a result of the transfer of the shares of the "Company" to the assessee firm, the latter obtained considerable profits, will not alter the true nature of the transaction - see the decision of this Court in Chittoor Motor Transport Co. (P) Ltd. v. Income-tax Officer, Chittoor, 59 ITR 238 = (AIR 1966 SC 570 ). 29. For the reasons above stated, we have no hesitation in coming to the conclusion that the transaction evidenced by the "agreement for sale" between the company and the assessee was a sale. 30. Now let us see what is the impact of Section 12-B (2) on that transaction ? Under that provision, the amount of capital gains has to be computed after making certain deductions from the full value of the consideration for which the sale is made. What exactly is the meaning of the expression "full value of the consideration for which sale is made" ? Is it the consideration agreed to be paid or is it the market value of the consideration ? In the case of sale for a price, there is no question of any market value unlike in the case of an exchange. Therefore in cases of sales to which the first proviso to sub-section (2) of S. 12-B is not attracted, all that we have to see is what is the consideration bargained for. As mentioned earlier to the facts of the present case, the first proviso is not attracted. As seen earlier, the price bargained for the sale of the shares and securities was only rupees seventyfive lakhs. The facts of this case squarely fall within the rule laid down by this Court in (1967) 66 ITR 622 (SC) (supra). Therein this Court observed :"In a case of a sale, the full value of the consideration is the full sale price actually paid. The legislature had to use the words "full value of the consideration" because it was dealing not merely with sale but with other types of transfer, such as exchange, where the consideration would be other than money. If it is therefore held in the present case that the actual price received by the respondent was at the rate of Rs. 136 per share - the full value of the consideration must be taken at the rate of Rupees 136 per share. The view that we have expressed as to the interpretation of the main part of Section 12-B (2) is borne out by the fact that in the first proviso to Section 12-B (2) the expression "full value of the consideration" is used in contradistinction with "fair market value of the capital asset" and there is an express power granted to the Income-tax Officer to "take the fair market value of the capital asset transferred" as "the full value of the consideration" in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions "full value of the consideration" and "fair market value of the capital asset transferred" and it is provided that if certain conditions are satisfied as mentioned in the first proviso to Section 12-B (2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration. To give rise to this fiction the two conditions of the first proviso are (1) that the transferor was directly or indirectly connected with the transferee, and (2) that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under Section 12-B. If the conditions of this proviso are not satisfied the main part of Section 12-B (2) applies and the Income-tax Officer must take into account the full value of the consideration for the transfer". 31. It may be noted that in that case the market value of the shares which were allotted at Rs. 136/- per share was Rs. 620/- per share. 32. Applying the principles enunciated in that decision we think that the full value of the sale price received by the assessee was only rupees seventyfive lakhs. That being so the capital gains made by the company were Rs. 2,74,772/- as held by the High Court. | 0[ds]In this case we are dealing with capital gains. Hence the material facts that had to be disclosed were those bearing on capital gains. Though at the time of the original assessment of the assessee, the partnership deed entered into by the five partners was before thex Officer, the sale deed executed by the partners of the assessee firm in favour of the "Company" on February 28, 1947 had not been placed before him. There was no material before thex Officer on the basis of which he could have concluded that the assessee firm had sold any shares and securities to the "Company"; nor was there any material before thex Officer as to the value of those shares and securities as on January 1, 1939. Further no material was placed before him to show that those shares and securities had been sold to the "Company" for a sum of Rs. 75 lakhs. In fact the assessee submitted its return for the assessment year in question in an old form which did not contain Pt. VII which dealt with particulars of income from capital gains. The statement enclosed also did not contain specific particulars about consideration for the sale of goodwill or for the sale of shares of the "Company". It is not without significance that the assessee did not challenge the validity of the proceedings under Section 34 (1) (a) before thex Officer. Even before the Appellate Assistant Commissioner, the only point that appears to have been urged was that since the firm was reconstituted and the reconstituted firm was granted registration under SectionA in the assessment year, it should be presumed that thex Officer while making the original assessment was aware of all the material facts. We agree with the Tribunal and the High Court that there is hardly any doubt that the assessee had failed to disclose fully and truly all material facts for the purpose of ascertaining whether it had made any capital gains or not18. The first question for decision is whether the first proviso to S.B is attracted to the facts of the presentcase.The sale with which we are concerned in this case took place on February 28, 1947. SectionB was incorporated into the Act with effect from April, 1 1947. That being so at the time the sale transaction took place SectionB was not a part of the Act. Hence there is no basis for saying that the "transfer was effected with the object of avoidance or reduction of the liability of the assessee"see Commr. of, West Bengal v. George Hendrson and Co. Ltd., (1967) 66 ITR 622 (SC)19. We have earlier seen that thex Officer in computing the total capital gains had taken into consideration the capital gains said to have been earned as a result of the sale of the shares and securities as well as the goodwill. The Appellate Assistant Commissioner in his order did not say anything specific about any capital gains earned as a result of the sale of the goodwill. The Tribunal rejected the case of the Department that there were any capital gains made as a result of the sale of goodwill. It also rejected the claim of the assessee that there was some capital loss as a result of the sale of goodwill. On this point the High Court agreed with the conclusions reached by the Tribunal. The conclusion of the High Court on this point was not challenged before us either by the Revenue or by the assessee. Therefore there is no need to go into the same20. The first question that we have to decide in this connection is whether the transaction entered into under the agreement for sale dated February 28, 1947 is a sale or exchange or merely areadjustment.It was contended on behalf of the Revenue that it was in effect an exchange though in form it was a sale. According to the assessee, it was a merereadjustment.The Revenue did not contend before the Appellate Assistant Commissioner or the Tribunal or even the High Court that the said transaction was not a sale. It was for the first time before this Court the contention was taken that it was not a sale. The contention of the assessee that it was merely readjustment had been rejected by the authorities under the Act as well as by the High Court21. Properly understood the effect of the contention of the Revenue as well as of the assessee is that in finding out the true nature of a transaction the Court must take into consideration the substance of the transaction and not the legal effect of the agreement entered intoa proposition which receives some support from some of the decided cases. In Sir Kikabhai Premchand v. Commr. ofx (Central), Bombay, 24 ITR 506 = (AIR 1953 SC 509 ) this Court observed that "it is well recognised that in revenue cases regard must be had to the substance of the transaction rather than to its mere form"27. Clause (1) of the agreement in specific terms says that "the existing partner shall sell and the company shall purchase the shares and securities for a sum of Rupees seventyfive lakhs". Clause (3) of that agreement merely provides a mode of satisfaction of the sale price. The sale price fixed by the parties for the shares and the securities sold is 75 lakhs and nothing more. It may be that because of the allotment of the shares of the Company in satisfaction of the sale price, the assessee firm got certain benefits but that does not convert the sale into an exchange28. In Commr. ofx Kerala v. R. R. Ramkrishna Pillai, (1967) 66 ITR 725 (SC) this Court distinguishing an exchange from a sale observed that where the person carrying on the business transfers the assets to a company in consideration of allotment of shares, it would be a case of exchange and not of sale and the true nature of the transaction will not be altered because for the purpose of stamp duty or other reason the value of the assets transferred is shown as equivalent to the face value of the shares allotted. On the other hand a person carrying on business may agree with a company floated by him that the assets belonging to him shall be transferred to the company for a certain money consideration and that in satisfaction of the liability to pay the money consideration shares of certain face value shall be allotted to the transferor. In such a case there are in truth two transactions, one transaction of sale and the other a contract under which the shares are accepted in satisfaction of the liability to pay the price. The fact that as a result of the transfer of the shares of the "Company" to the assessee firm, the latter obtained considerable profits, will not alter the true nature of the transactionsee the decision of this Court in Chittoor Motor Transport Co. (P) Ltd. v.x Officer, Chittoor, 59 ITR 238 = (AIR 1966 SC 570 )29. For the reasons above stated, we have no hesitation in coming to the conclusion that the transaction evidenced by the "agreement for sale" between the company and the assessee was a sale30. Now let us seewhat is the impact of SectionB (2) on that transaction ?Under that provision, the amount of capital gains has to be computed after making certain deductions from the full value of the consideration for which the sale is made.What exactly is the meaning of the expression "full value of the consideration for which sale is made" ? Is it the consideration agreed to be paid or is it the market value of the consideration ?In the case of sale for a price, there is no question of any market value unlike in the case of an exchange. Therefore in cases of sales to which the first proviso ton (2) of S.B is not attracted, all that we have to see is what is the consideration bargained for. As mentioned earlier to the facts of the present case, the first proviso is not attracted. As seen earlier, the price bargained for the sale of the shares and securities was only rupees seventyfive lakhs. The facts of this case squarely fall within the rule laid down by this Court in (1967) 66 ITR 622 (SC) (supra). Therein this Court observed :"In a case of a sale, the full value of the consideration is the full sale price actually paid. The legislature had to use the words "full value of the consideration" because it was dealing not merely with sale but with other types of transfer, such as exchange, where the consideration would be other than money. If it is therefore held in the present case that the actual price received by the respondent was at the rate of Rs. 136per sharethe full value of the consideration must be taken at the rate of Rupees 136per. The view that we have expressed as to the interpretation of the main part of SectionB (2) is borne out by the fact that in the first proviso to SectionB (2) the expression "full value of the consideration" is used in contradistinction with "fair market value of the capital asset" and there is an express power granted to thex Officer to "take the fair market value of the capital asset transferred" as "the full value of the consideration" in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions "full value of the consideration" and "fair market value of the capital asset transferred" and it is provided that if certain conditions are satisfied as mentioned in the first proviso to SectionB (2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration. To give rise to this fiction the two conditions of the first proviso are (1) that the transferor was directly or indirectly connected with the transferee, and (2) that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under Section. If the conditions of this proviso are not satisfied the main part of SectionB (2) applies and thex Officer must take into account the full value of the consideration for the transfer"31. It may be noted that in that case the market value of the shares which were allotted at Rs. 136/persharewas Rs. 620/32. Applying the principles enunciated in that decision we think that the full value of the sale price received by the assessee was only rupees seventyfive lakhs. That being so the capital gains made by the company were Rs. 2,74,772/as held by the High Court. | 0 | 6,265 | 1,986 | ### 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) of the agreement in specific terms says that "the existing partner shall sell and the company shall purchase the shares and securities for a sum of Rupees seventyfive lakhs". Clause (3) of that agreement merely provides a mode of satisfaction of the sale price. The sale price fixed by the parties for the shares and the securities sold is 75 lakhs and nothing more. It may be that because of the allotment of the shares of the Company in satisfaction of the sale price, the assessee firm got certain benefits but that does not convert the sale into an exchange. 28. In Commr. of Income-tax Kerala v. R. R. Ramkrishna Pillai, (1967) 66 ITR 725 (SC) this Court distinguishing an exchange from a sale observed that where the person carrying on the business transfers the assets to a company in consideration of allotment of shares, it would be a case of exchange and not of sale and the true nature of the transaction will not be altered because for the purpose of stamp duty or other reason the value of the assets transferred is shown as equivalent to the face value of the shares allotted. On the other hand a person carrying on business may agree with a company floated by him that the assets belonging to him shall be transferred to the company for a certain money consideration and that in satisfaction of the liability to pay the money consideration shares of certain face value shall be allotted to the transferor. In such a case there are in truth two transactions, one transaction of sale and the other a contract under which the shares are accepted in satisfaction of the liability to pay the price. The fact that as a result of the transfer of the shares of the "Company" to the assessee firm, the latter obtained considerable profits, will not alter the true nature of the transaction - see the decision of this Court in Chittoor Motor Transport Co. (P) Ltd. v. Income-tax Officer, Chittoor, 59 ITR 238 = (AIR 1966 SC 570 ). 29. For the reasons above stated, we have no hesitation in coming to the conclusion that the transaction evidenced by the "agreement for sale" between the company and the assessee was a sale. 30. Now let us see what is the impact of Section 12-B (2) on that transaction ? Under that provision, the amount of capital gains has to be computed after making certain deductions from the full value of the consideration for which the sale is made. What exactly is the meaning of the expression "full value of the consideration for which sale is made" ? Is it the consideration agreed to be paid or is it the market value of the consideration ? In the case of sale for a price, there is no question of any market value unlike in the case of an exchange. Therefore in cases of sales to which the first proviso to sub-section (2) of S. 12-B is not attracted, all that we have to see is what is the consideration bargained for. As mentioned earlier to the facts of the present case, the first proviso is not attracted. As seen earlier, the price bargained for the sale of the shares and securities was only rupees seventyfive lakhs. The facts of this case squarely fall within the rule laid down by this Court in (1967) 66 ITR 622 (SC) (supra). Therein this Court observed :"In a case of a sale, the full value of the consideration is the full sale price actually paid. The legislature had to use the words "full value of the consideration" because it was dealing not merely with sale but with other types of transfer, such as exchange, where the consideration would be other than money. If it is therefore held in the present case that the actual price received by the respondent was at the rate of Rs. 136 per share - the full value of the consideration must be taken at the rate of Rupees 136 per share. The view that we have expressed as to the interpretation of the main part of Section 12-B (2) is borne out by the fact that in the first proviso to Section 12-B (2) the expression "full value of the consideration" is used in contradistinction with "fair market value of the capital asset" and there is an express power granted to the Income-tax Officer to "take the fair market value of the capital asset transferred" as "the full value of the consideration" in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions "full value of the consideration" and "fair market value of the capital asset transferred" and it is provided that if certain conditions are satisfied as mentioned in the first proviso to Section 12-B (2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration. To give rise to this fiction the two conditions of the first proviso are (1) that the transferor was directly or indirectly connected with the transferee, and (2) that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under Section 12-B. If the conditions of this proviso are not satisfied the main part of Section 12-B (2) applies and the Income-tax Officer must take into account the full value of the consideration for the transfer". 31. It may be noted that in that case the market value of the shares which were allotted at Rs. 136/- per share was Rs. 620/- per share. 32. Applying the principles enunciated in that decision we think that the full value of the sale price received by the assessee was only rupees seventyfive lakhs. That being so the capital gains made by the company were Rs. 2,74,772/- as held by the High Court.
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this Court observed that "it is well recognised that in revenue cases regard must be had to the substance of the transaction rather than to its mere form"27. Clause (1) of the agreement in specific terms says that "the existing partner shall sell and the company shall purchase the shares and securities for a sum of Rupees seventyfive lakhs". Clause (3) of that agreement merely provides a mode of satisfaction of the sale price. The sale price fixed by the parties for the shares and the securities sold is 75 lakhs and nothing more. It may be that because of the allotment of the shares of the Company in satisfaction of the sale price, the assessee firm got certain benefits but that does not convert the sale into an exchange28. In Commr. ofx Kerala v. R. R. Ramkrishna Pillai, (1967) 66 ITR 725 (SC) this Court distinguishing an exchange from a sale observed that where the person carrying on the business transfers the assets to a company in consideration of allotment of shares, it would be a case of exchange and not of sale and the true nature of the transaction will not be altered because for the purpose of stamp duty or other reason the value of the assets transferred is shown as equivalent to the face value of the shares allotted. On the other hand a person carrying on business may agree with a company floated by him that the assets belonging to him shall be transferred to the company for a certain money consideration and that in satisfaction of the liability to pay the money consideration shares of certain face value shall be allotted to the transferor. In such a case there are in truth two transactions, one transaction of sale and the other a contract under which the shares are accepted in satisfaction of the liability to pay the price. The fact that as a result of the transfer of the shares of the "Company" to the assessee firm, the latter obtained considerable profits, will not alter the true nature of the transactionsee the decision of this Court in Chittoor Motor Transport Co. (P) Ltd. v.x Officer, Chittoor, 59 ITR 238 = (AIR 1966 SC 570 )29. For the reasons above stated, we have no hesitation in coming to the conclusion that the transaction evidenced by the "agreement for sale" between the company and the assessee was a sale30. Now let us seewhat is the impact of SectionB (2) on that transaction ?Under that provision, the amount of capital gains has to be computed after making certain deductions from the full value of the consideration for which the sale is made.What exactly is the meaning of the expression "full value of the consideration for which sale is made" ? Is it the consideration agreed to be paid or is it the market value of the consideration ?In the case of sale for a price, there is no question of any market value unlike in the case of an exchange. Therefore in cases of sales to which the first proviso ton (2) of S.B is not attracted, all that we have to see is what is the consideration bargained for. As mentioned earlier to the facts of the present case, the first proviso is not attracted. As seen earlier, the price bargained for the sale of the shares and securities was only rupees seventyfive lakhs. The facts of this case squarely fall within the rule laid down by this Court in (1967) 66 ITR 622 (SC) (supra). Therein this Court observed :"In a case of a sale, the full value of the consideration is the full sale price actually paid. The legislature had to use the words "full value of the consideration" because it was dealing not merely with sale but with other types of transfer, such as exchange, where the consideration would be other than money. If it is therefore held in the present case that the actual price received by the respondent was at the rate of Rs. 136per sharethe full value of the consideration must be taken at the rate of Rupees 136per. The view that we have expressed as to the interpretation of the main part of SectionB (2) is borne out by the fact that in the first proviso to SectionB (2) the expression "full value of the consideration" is used in contradistinction with "fair market value of the capital asset" and there is an express power granted to thex Officer to "take the fair market value of the capital asset transferred" as "the full value of the consideration" in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions "full value of the consideration" and "fair market value of the capital asset transferred" and it is provided that if certain conditions are satisfied as mentioned in the first proviso to SectionB (2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration. To give rise to this fiction the two conditions of the first proviso are (1) that the transferor was directly or indirectly connected with the transferee, and (2) that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under Section. If the conditions of this proviso are not satisfied the main part of SectionB (2) applies and thex Officer must take into account the full value of the consideration for the transfer"31. It may be noted that in that case the market value of the shares which were allotted at Rs. 136/persharewas Rs. 620/32. Applying the principles enunciated in that decision we think that the full value of the sale price received by the assessee was only rupees seventyfive lakhs. That being so the capital gains made by the company were Rs. 2,74,772/as held by the High Court.
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State Of Uttar Pradesh And Anr Vs. Audh Narain Singh And Anr | Mela duty. There is also the record of the disciplinary proceeding held by the District Magistrate on April 12, 1948, against Tahvildar Ganesh Prasad for improper conduct.7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.8. Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinary the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant.9. The work of the Government Treasurers has to be conducted according to the Rules and Regulations framed by the Government, and directions issued from time to time. The Government Treasurer holds a post in a public employment and he is assisted by Tahvildars in the performance of his duties. The Tahvildar acts not on behalf of the Treasurer in performing his duties, but on behalf of the State. Undoubtedly the Treasurer undertakes responsibility for the loss which may be occasioned by the Tahvildar, but solely on that account it cannot be held that the Tahvildar is merely an appointee of the Treasurer and is not a servant of the State. The selection of Tahvildar though made by the Treasurer is controlled by the Collector: the Tahvildar is remunerated by the State, method of his work is controlled by the State, and the State exercises the power to suspend, dismiss and reinstate him in Shivanandan Sharma v. Punjab National Bank Ltd., 1955 SCR 1427: ((S) AIR 1955 SC 404 ) it was held that a head cashier in one of the branches of the Punjab National Bank Ltd., who was appointed by the Treasurer in charge of the Cash Department under an agreement with the Bank, was an employee of the Bank. In the view of the Court, the direction and control of the cashier and of the ministerial staff-in-charge of the Cash Department of the Bank being entirely vested in the Bank, the cashier must be deemed to be an employee of the Bank. Sinha, J., observed at p. 1442 (of SCR): (at p. 411 of AIR):"If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master."10. Similary in Dharagadhra Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152: ((S) AIR 1957 SC 264 ) it was held that "the prima facie test of" the relationship of master and seavant "is the existence of the right in the employer not merely to direct what work is to be done but also to control the manner in which it is to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined." In M/s. Piyare Lal Adishwar Lal v. The Commissioner of Income-tax, Delhi; 1960-3 SCR 669 : (AIR 1960 SC 997 ) it was held that the Treasurer appointed by the Bank who was to carry out the duties as directed by the Bank was a servant of the Bank, and not an independent contractor.11. The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties. Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State. The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of Art. 311 of the Constitution.12. The order removing Singh from service was made at the instance of the Collector, and did not conform to the requirements of Art. 311(2) of the Constitution and was on that account invalid.13. We therefore agree with the High Court, that the impugned order must be declared invalid.14. | 0[ds]7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.8. Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinary the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant.The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties. Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State. The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of Art. 311 of the Constitution.The order removing Singh from service was made at the instance of the Collector, and did not conform to the requirements of Art. 311(2) of the Constitution and was on that account invalid.We therefore agree with the High Court, that the impugned order must be declared invalid. | 0 | 3,171 | 561 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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Mela duty. There is also the record of the disciplinary proceeding held by the District Magistrate on April 12, 1948, against Tahvildar Ganesh Prasad for improper conduct.7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.8. Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinary the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant.9. The work of the Government Treasurers has to be conducted according to the Rules and Regulations framed by the Government, and directions issued from time to time. The Government Treasurer holds a post in a public employment and he is assisted by Tahvildars in the performance of his duties. The Tahvildar acts not on behalf of the Treasurer in performing his duties, but on behalf of the State. Undoubtedly the Treasurer undertakes responsibility for the loss which may be occasioned by the Tahvildar, but solely on that account it cannot be held that the Tahvildar is merely an appointee of the Treasurer and is not a servant of the State. The selection of Tahvildar though made by the Treasurer is controlled by the Collector: the Tahvildar is remunerated by the State, method of his work is controlled by the State, and the State exercises the power to suspend, dismiss and reinstate him in Shivanandan Sharma v. Punjab National Bank Ltd., 1955 SCR 1427: ((S) AIR 1955 SC 404 ) it was held that a head cashier in one of the branches of the Punjab National Bank Ltd., who was appointed by the Treasurer in charge of the Cash Department under an agreement with the Bank, was an employee of the Bank. In the view of the Court, the direction and control of the cashier and of the ministerial staff-in-charge of the Cash Department of the Bank being entirely vested in the Bank, the cashier must be deemed to be an employee of the Bank. Sinha, J., observed at p. 1442 (of SCR): (at p. 411 of AIR):"If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master."10. Similary in Dharagadhra Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152: ((S) AIR 1957 SC 264 ) it was held that "the prima facie test of" the relationship of master and seavant "is the existence of the right in the employer not merely to direct what work is to be done but also to control the manner in which it is to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined." In M/s. Piyare Lal Adishwar Lal v. The Commissioner of Income-tax, Delhi; 1960-3 SCR 669 : (AIR 1960 SC 997 ) it was held that the Treasurer appointed by the Bank who was to carry out the duties as directed by the Bank was a servant of the Bank, and not an independent contractor.11. The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties. Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State. The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of Art. 311 of the Constitution.12. The order removing Singh from service was made at the instance of the Collector, and did not conform to the requirements of Art. 311(2) of the Constitution and was on that account invalid.13. We therefore agree with the High Court, that the impugned order must be declared invalid.14.
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7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.8. Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinary the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant.The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties. Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State. The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of Art. 311 of the Constitution.The order removing Singh from service was made at the instance of the Collector, and did not conform to the requirements of Art. 311(2) of the Constitution and was on that account invalid.We therefore agree with the High Court, that the impugned order must be declared invalid.
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United Finance Corporation Vs. M.S.M. Haneefa (Dead) Through Lrs | Considering the scope of the expression as to when the sale becomes absolute in the case of Chandra Mani Saha and Ors vs. Anarjan Bibi and others AIR 1934 PC 134 it was held as under:“…In order to ascertain when such a sale as is referred to in the said Article becomes absolute, reference must be made to the Civil Procedure Code, and the orders and rules contained in the Sch.1 thereto, for that is the Code which contains the provisions relating to the sale of immoveable property in execution of decrees. Order 21, Rules 82 to 96, in the said schedule are applicable to sales of immoveable property. Rules 89, 90 and 91 deal with applications to set aside a sale and Rule 92 (1) provides as follows:“Where no application is made under Rule 89, Rule 90, or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.”There is no doubt that the above-mentioned rule is applicable to the present case ; for as already stated the judgment-debtors did apply to set aside the sale, and the Subordinate Judge disallowed the applications on 15th April 1924, and on 22nd April 1924, he confirmed the sales. The sales, therefore, became absolute on 22nd April 1924, at any rate so far as the Court of the Subordinate Judge was concerned. But the judgment-debtors had a right of appeal under Order 43, Rule (1)(j) against the orders of the Subordinate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment-debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of Section 107 (2) of the Code had the same powers as the Court of the Subordinate Judge. In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute. In considering the meaning of the words in Article 180 of the Limitation Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the sale; in that case, of course, there could be no confirmation of the sale as far as the Subordinate Judge was concerned, as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal, and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and on such an order of confirmation by the High Court the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and, of course, no confirmation and no absolute sale.Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Article 180, the Limitation Act, regard must be had not only to the provisions of Order 21, Rule 92(1), of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under Order 21, Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 of the Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.”[Underlining added]The same view was reiterated in the case of Sri Ranga Nilayan Rama Krishna Rao vs. Kandokori Chellayamma AIR 1953 SC 425 .17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002-an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expression “when the sale becomes absolute” and not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained. | 1[ds]17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002-an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expressionthe sale becomesand not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained. | 1 | 3,676 | 341 | ### Instruction:
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Considering the scope of the expression as to when the sale becomes absolute in the case of Chandra Mani Saha and Ors vs. Anarjan Bibi and others AIR 1934 PC 134 it was held as under:“…In order to ascertain when such a sale as is referred to in the said Article becomes absolute, reference must be made to the Civil Procedure Code, and the orders and rules contained in the Sch.1 thereto, for that is the Code which contains the provisions relating to the sale of immoveable property in execution of decrees. Order 21, Rules 82 to 96, in the said schedule are applicable to sales of immoveable property. Rules 89, 90 and 91 deal with applications to set aside a sale and Rule 92 (1) provides as follows:“Where no application is made under Rule 89, Rule 90, or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.”There is no doubt that the above-mentioned rule is applicable to the present case ; for as already stated the judgment-debtors did apply to set aside the sale, and the Subordinate Judge disallowed the applications on 15th April 1924, and on 22nd April 1924, he confirmed the sales. The sales, therefore, became absolute on 22nd April 1924, at any rate so far as the Court of the Subordinate Judge was concerned. But the judgment-debtors had a right of appeal under Order 43, Rule (1)(j) against the orders of the Subordinate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment-debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of Section 107 (2) of the Code had the same powers as the Court of the Subordinate Judge. In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute. In considering the meaning of the words in Article 180 of the Limitation Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the sale; in that case, of course, there could be no confirmation of the sale as far as the Subordinate Judge was concerned, as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal, and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and on such an order of confirmation by the High Court the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and, of course, no confirmation and no absolute sale.Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Article 180, the Limitation Act, regard must be had not only to the provisions of Order 21, Rule 92(1), of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under Order 21, Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 of the Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.”[Underlining added]The same view was reiterated in the case of Sri Ranga Nilayan Rama Krishna Rao vs. Kandokori Chellayamma AIR 1953 SC 425 .17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002-an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expression “when the sale becomes absolute” and not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.
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17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002-an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expressionthe sale becomesand not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.
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M/S. R. M. D. C. (Mysore) Private Ltd Vs. The State Of Mysore | SCR 8, at pp 24, 42 : (AIR 1959 SC 648 at pp. 657, 665). The inconsistency would operate on that portion of the Mysore Act which became repugnant to Ss. 4 and 5 of the Central Act as to prohibition of prize competitions and licensing of prize competitions e.g. S. 8 of the Mysore Act and consequently that portion of S. 12 (1) (b)which deals with taxes in respect of prize competitions for which a licence had been obtained under S. 8 might be said to have became void and not the rest. Therefore by the omission of words "for which a licence had been obtained," under S. 8, the rest of the clause would be valid. The effect of the amending Act is that the abovementioned words were deemed to have been omitted as from April 1, 1956 and the rest of cl,. (b) is not repugnant to any of the provisions of the Central Act. Article 254 (1) therefore did not make S. 12 (1) (b) wholly void. All that it did was that portion which refers to licensing became repugnant but it did not affect the rest of the section At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of Ss. 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in 1959 Supp (2) SCR 8; (AIR 1959 SC 648 ) i.e. the doctrine of eclipse could be invoked in the case of a Law which was valid when made but was rendered invalid by a supervening constitutional inconsistency. This disposes of the challenge to the constitutionality of the Mysore Act on the five points set out above. Therefore the law may be summed up as follows :(1) By passing the resolutions as to control and regulation the power to tax had not been surrendered to Parliament.(2) The amending Act was not a new method of controlling prize competitions nor was it a piece of colourable legislation.(3) There was no amendment of an Act which stood repealed nor was the retroactive operation of the Amending Act affected by Art. 254 (1) of the Constitution.17. The next three objections to the legality of the assessment were : (1) that the assessment was provisional which was not contemplated under the Act; (2) there should have been a fresh notification after the amendment of the Mysore Act and (3) at the time when the recovery proceedings were taken the tax had not become due as it was payable within a week which had not expired. On September 10, 1957, the Deputy Commissioner, Bangalore, called upon the appellants to produce accounts in respect of prize competitions conducted as from April 1, 1956 up to the date of the closure of the competitions and three days were given to comply with that notice. Their reply was that the Ordinance under which the notice was issued was unconstitutional and illegal and they also asked for thirty days in which to prepare their statements but they were granted a period of fifteen days only. They agreed to file their statements within the time allowed though under protest. These statements were submitted on October 9, 1957 and at the end of the statements which showed a gross collection of Rs. 26,47,147-5-9, there was the following endorsement:-"The above figures of collections are verified partly with available bank statements and partly with the books of accounts and are subject to reconciliation between the amount as per ledger and that as above. The commission and expenses deducted by Collectors are accepted as per certificate of the Management and the State Account, Collections are verified only with the Collection Register.(Sd.) ....,.............Chartered Accountants."Under this the Deputy Commissioner wrote a letter on October 16, 1957 in which it was said :-You are hereby called upon to pay up provisionally a sum of Rs. 3,30,893-7 -0 towards tax amount to the Reserve Bank of India and forward the challan in token of payment to this office within a week."As the tax was not paid the provisions of the Revenue Recovery Act were resorted to. This cannot be said to be a provisional assessment. The return submitted by the appellants as far as it went was accepted and on that the tax was demanded which was not a case of provisional assessment at all but as was held by the High Court it must be taken to be a final assessment and if and when any further assessment or a revised assessment is made the question may become relevant.18. The next question as to the necessity of a fresh notification, on the submission is equally unsubstantial. Its legality depends upon the constitutionality of amended S. 12 (1)(b) and if that is valid, as we have held it to be, the notification is equally valid. The notification was only in regard to the rate of taxation and had no reference to the obtaining or not obtaining of the licence.19. The last point raised was that the tax was payable within a week which had not expired. As we have pointed out the notice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is not the case of the appellants that they had paid or were in a position to produce the challan within a week. It was not an order making the tax payable within a week. These objections, in our opinion, are without substance and are therefore overruled. | 0[ds]In the Indian Constitution as it was in the Government of India Act the power of legislation is distributed between the Union and the States and the subjects on which the respective Legislatures can legislate are enumerated in the three Lists and in the Articles of the Constitution, provision is made as to what is to happen if there is a conflict between the Statutes passed by Parliament and the Legislatures of the States.The scheme if the Indian Constitution and distribution of powers under it are entirely different from what it is in America and therefore the construction of the entries in the manner contended for by the appellants would bemay be remarked that the Court in construing and interpreting the Constitution or provisions of an enactment has to ascertain the meaning and intention of Parliament from the language-used in the statute itself and it is not concerned with the motives ofif the Mysore Legislature had the power which in our opinion, it had and it had not surrendered its power to Parliament which, in our opinion, it had not then it cannot be said that the imposition of the tax is a piece of colourable legislation and is on that grounduse the language of Gwyer C. J., in 1939 FCR 18 ; (AIR 1939 FC 1)is not for the Court to express, or indeed to entertain, any opinion on the expediency of a particular piece of legislation, if it is satisfied that it was within the competence of the Legislature which enacted it; nor will it allow itself to be influenced by any considerations of policy, for these lie wholly outside itsthe Central Act is with respect to betting and gambling under Entry 34 of List II and the taxing sections of the Mysore Act are with respect to tax on betting and gambling under Entry 62. It is also instructive to note that Venkatarama Ayyar J., in 1957 SCR 930 : (S) AIR 1957 SC 628 ), in construing the language of the resolution was of the opinion that the use of the word "control and regulation" was requisite in the case of gambling and as regards regulation of competitions involving skill mere regulation would have been sufficient.15. In view of our finding that by passing the resolution the States did not surrender their power of taxation it cannot be said that Cl. (2) of Art. 252 of the Constitution was violated by the amendment of the Mysore Act; nor can it be said that in reality it was a piece of colourable legislation by an indirect attempt to amend the Central Act and a new method of control was devised by imposing a penalty under the name of tax. We have already held that the tax imposed under the Mysore Act was not by way of penalty but was the exercise of the power which the legislature possessed of imposing tax under Entryby the omission of words "for which a licence had been obtained," under S. 8, the rest of the clause would be valid. The effect of the amending Act is that the abovementioned words were deemed to have been omitted as from April 1, 1956 and the rest of cl,. (b) is not repugnant to any of the provisions of the Central Act. Article 254 (1) therefore did not make S. 12 (1) (b) wholly void. All that it did was that portion which refers to licensing became repugnant but it did not affect the rest of the section At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of Ss. 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in 1959 Supp (2) SCR 8; (AIR 1959 SC 648 ) i.e. the doctrine of eclipse could be invoked in the case of a Law which was valid when made but was rendered invalid by a supervening constitutional inconsistency. This disposes of the challenge to the constitutionality of the Mysore Act on the five points set outthe law may be summed up as follows :(1) By passing the resolutions as to control and regulation the power to tax had not been surrendered to Parliament.(2) The amending Act was not a new method of controlling prize competitions nor was it a piece of colourable legislation.(3) There was no amendment of an Act which stood repealed nor was the retroactive operation of the Amending Act affected by Art. 254 (1) of thelegality depends upon the constitutionality of amended S. 12 (1)(b) and if that is valid, as we have held it to be, the notification is equally valid. The notification was only in regard to the rate of taxation and had no reference to the obtaining or not obtaining of thewe have pointed out the notice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is not the case of the appellants that they had paid or were in a position to produce the challan within a week. It was not an order making the tax payable within a week. These objections, in our opinion, are without substance and are therefore overruled. | 0 | 6,037 | 1,038 | ### Instruction:
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SCR 8, at pp 24, 42 : (AIR 1959 SC 648 at pp. 657, 665). The inconsistency would operate on that portion of the Mysore Act which became repugnant to Ss. 4 and 5 of the Central Act as to prohibition of prize competitions and licensing of prize competitions e.g. S. 8 of the Mysore Act and consequently that portion of S. 12 (1) (b)which deals with taxes in respect of prize competitions for which a licence had been obtained under S. 8 might be said to have became void and not the rest. Therefore by the omission of words "for which a licence had been obtained," under S. 8, the rest of the clause would be valid. The effect of the amending Act is that the abovementioned words were deemed to have been omitted as from April 1, 1956 and the rest of cl,. (b) is not repugnant to any of the provisions of the Central Act. Article 254 (1) therefore did not make S. 12 (1) (b) wholly void. All that it did was that portion which refers to licensing became repugnant but it did not affect the rest of the section At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of Ss. 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in 1959 Supp (2) SCR 8; (AIR 1959 SC 648 ) i.e. the doctrine of eclipse could be invoked in the case of a Law which was valid when made but was rendered invalid by a supervening constitutional inconsistency. This disposes of the challenge to the constitutionality of the Mysore Act on the five points set out above. Therefore the law may be summed up as follows :(1) By passing the resolutions as to control and regulation the power to tax had not been surrendered to Parliament.(2) The amending Act was not a new method of controlling prize competitions nor was it a piece of colourable legislation.(3) There was no amendment of an Act which stood repealed nor was the retroactive operation of the Amending Act affected by Art. 254 (1) of the Constitution.17. The next three objections to the legality of the assessment were : (1) that the assessment was provisional which was not contemplated under the Act; (2) there should have been a fresh notification after the amendment of the Mysore Act and (3) at the time when the recovery proceedings were taken the tax had not become due as it was payable within a week which had not expired. On September 10, 1957, the Deputy Commissioner, Bangalore, called upon the appellants to produce accounts in respect of prize competitions conducted as from April 1, 1956 up to the date of the closure of the competitions and three days were given to comply with that notice. Their reply was that the Ordinance under which the notice was issued was unconstitutional and illegal and they also asked for thirty days in which to prepare their statements but they were granted a period of fifteen days only. They agreed to file their statements within the time allowed though under protest. These statements were submitted on October 9, 1957 and at the end of the statements which showed a gross collection of Rs. 26,47,147-5-9, there was the following endorsement:-"The above figures of collections are verified partly with available bank statements and partly with the books of accounts and are subject to reconciliation between the amount as per ledger and that as above. The commission and expenses deducted by Collectors are accepted as per certificate of the Management and the State Account, Collections are verified only with the Collection Register.(Sd.) ....,.............Chartered Accountants."Under this the Deputy Commissioner wrote a letter on October 16, 1957 in which it was said :-You are hereby called upon to pay up provisionally a sum of Rs. 3,30,893-7 -0 towards tax amount to the Reserve Bank of India and forward the challan in token of payment to this office within a week."As the tax was not paid the provisions of the Revenue Recovery Act were resorted to. This cannot be said to be a provisional assessment. The return submitted by the appellants as far as it went was accepted and on that the tax was demanded which was not a case of provisional assessment at all but as was held by the High Court it must be taken to be a final assessment and if and when any further assessment or a revised assessment is made the question may become relevant.18. The next question as to the necessity of a fresh notification, on the submission is equally unsubstantial. Its legality depends upon the constitutionality of amended S. 12 (1)(b) and if that is valid, as we have held it to be, the notification is equally valid. The notification was only in regard to the rate of taxation and had no reference to the obtaining or not obtaining of the licence.19. The last point raised was that the tax was payable within a week which had not expired. As we have pointed out the notice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is not the case of the appellants that they had paid or were in a position to produce the challan within a week. It was not an order making the tax payable within a week. These objections, in our opinion, are without substance and are therefore overruled.
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### Explanation:
In the Indian Constitution as it was in the Government of India Act the power of legislation is distributed between the Union and the States and the subjects on which the respective Legislatures can legislate are enumerated in the three Lists and in the Articles of the Constitution, provision is made as to what is to happen if there is a conflict between the Statutes passed by Parliament and the Legislatures of the States.The scheme if the Indian Constitution and distribution of powers under it are entirely different from what it is in America and therefore the construction of the entries in the manner contended for by the appellants would bemay be remarked that the Court in construing and interpreting the Constitution or provisions of an enactment has to ascertain the meaning and intention of Parliament from the language-used in the statute itself and it is not concerned with the motives ofif the Mysore Legislature had the power which in our opinion, it had and it had not surrendered its power to Parliament which, in our opinion, it had not then it cannot be said that the imposition of the tax is a piece of colourable legislation and is on that grounduse the language of Gwyer C. J., in 1939 FCR 18 ; (AIR 1939 FC 1)is not for the Court to express, or indeed to entertain, any opinion on the expediency of a particular piece of legislation, if it is satisfied that it was within the competence of the Legislature which enacted it; nor will it allow itself to be influenced by any considerations of policy, for these lie wholly outside itsthe Central Act is with respect to betting and gambling under Entry 34 of List II and the taxing sections of the Mysore Act are with respect to tax on betting and gambling under Entry 62. It is also instructive to note that Venkatarama Ayyar J., in 1957 SCR 930 : (S) AIR 1957 SC 628 ), in construing the language of the resolution was of the opinion that the use of the word "control and regulation" was requisite in the case of gambling and as regards regulation of competitions involving skill mere regulation would have been sufficient.15. In view of our finding that by passing the resolution the States did not surrender their power of taxation it cannot be said that Cl. (2) of Art. 252 of the Constitution was violated by the amendment of the Mysore Act; nor can it be said that in reality it was a piece of colourable legislation by an indirect attempt to amend the Central Act and a new method of control was devised by imposing a penalty under the name of tax. We have already held that the tax imposed under the Mysore Act was not by way of penalty but was the exercise of the power which the legislature possessed of imposing tax under Entryby the omission of words "for which a licence had been obtained," under S. 8, the rest of the clause would be valid. The effect of the amending Act is that the abovementioned words were deemed to have been omitted as from April 1, 1956 and the rest of cl,. (b) is not repugnant to any of the provisions of the Central Act. Article 254 (1) therefore did not make S. 12 (1) (b) wholly void. All that it did was that portion which refers to licensing became repugnant but it did not affect the rest of the section At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of Ss. 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in 1959 Supp (2) SCR 8; (AIR 1959 SC 648 ) i.e. the doctrine of eclipse could be invoked in the case of a Law which was valid when made but was rendered invalid by a supervening constitutional inconsistency. This disposes of the challenge to the constitutionality of the Mysore Act on the five points set outthe law may be summed up as follows :(1) By passing the resolutions as to control and regulation the power to tax had not been surrendered to Parliament.(2) The amending Act was not a new method of controlling prize competitions nor was it a piece of colourable legislation.(3) There was no amendment of an Act which stood repealed nor was the retroactive operation of the Amending Act affected by Art. 254 (1) of thelegality depends upon the constitutionality of amended S. 12 (1)(b) and if that is valid, as we have held it to be, the notification is equally valid. The notification was only in regard to the rate of taxation and had no reference to the obtaining or not obtaining of thewe have pointed out the notice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is not the case of the appellants that they had paid or were in a position to produce the challan within a week. It was not an order making the tax payable within a week. These objections, in our opinion, are without substance and are therefore overruled.
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State of Orissa and Another Vs. N.N. Swamy and Others Etc | date cannot be countenanced. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored. Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.It is well-settled that under Article 16(1 ) of the Constitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion , (See The General Manager, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)." 11. Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools. That case is entirely different from the present case. There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management. The educational qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to. impart in the college after taking over the same from the private management. If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante. Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution. The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teaching in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration. Denial of an opportunity to. these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue. 12. We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two Readers (Nos. 9 and 10 in Annexure 1). The only differentia was, therefore, the salary drawn by the Readers on the date of take over. That action based on the salary aspect under the said circular had to. stand the test of Article 16 in the High Court, as well as, before us. the argument in favour of complete erasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely different matter. 13. We are, therefore, clearly of opinion that all the Respondents are eligible to be referred to the Public Service Commission for the post of Reader. Their names shall be referred to the Commission, accordingly. Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption. The High Court was right in allowing the above claim in the writ applications. | 0[ds]It is thus clear that the condition of drawing of Rs.600/- or more on the date of taking over, which has been laid down in the said circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory. This condition has no nexus, whatever, with the object underlying the qualification test in an educational institution having regard to the most essential condition of intrinsic quality and efficiency of the teachers. It is not unknown that private institutions generally have great handicaps in the matter of finance and oftener the teaching staff in a private college has not the same scales of pay and sometimes even has much lower scales than that of the Government colleges. It is one thing to lay down appropriate educational and intelligibly relevant qualifications for certain posts in a college and also teaching experience of a specified duration but com- plete ignoration, without valid reason, of the teaching experience of a lecturer in a private college, otherwise qualified, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored. Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.It is well-settled that under Article 16(1 ) of the Constitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion , (See The General Manager, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools. That case is entirely different from the present case. There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management. The educational qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to. impart in the college after taking over the same from the private management. If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante. Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution. The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teaching in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration. Denial of an opportunity to. these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue.We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two Readers (Nos. 9 and 10 in Annexure 1). The only differentia was, therefore, the salary drawn by the Readers on the date of take over. That action based on the salary aspect under the said circular had to. stand the test of Article 16 in the High Court, as well as, before us. the argument in favour of complete erasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely differente are, therefore, clearly of opinion that all the Respondents are eligible to be referred to the Public Service Commission for the post of Reader. Their names shall be referred to the Commission, accordingly. Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption. The High Court was right in allowing the above claim in the writ applications. | 0 | 3,522 | 1,318 | ### 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:
date cannot be countenanced. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored. Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.It is well-settled that under Article 16(1 ) of the Constitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion , (See The General Manager, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)." 11. Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools. That case is entirely different from the present case. There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management. The educational qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to. impart in the college after taking over the same from the private management. If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante. Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution. The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teaching in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration. Denial of an opportunity to. these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue. 12. We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two Readers (Nos. 9 and 10 in Annexure 1). The only differentia was, therefore, the salary drawn by the Readers on the date of take over. That action based on the salary aspect under the said circular had to. stand the test of Article 16 in the High Court, as well as, before us. the argument in favour of complete erasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely different matter. 13. We are, therefore, clearly of opinion that all the Respondents are eligible to be referred to the Public Service Commission for the post of Reader. Their names shall be referred to the Commission, accordingly. Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption. The High Court was right in allowing the above claim in the writ applications.
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of salary on a particular date cannot be countenanced. T.K. Satyanmurty (No. 9) was promoted as a Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to; draw Rs.660/- on the date of take over, while the Respondents were drawing a little lower pay. The former was preferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission for appointment as Reader and the claims of the Respondents were ignored. Thus even amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay; even though it may be less by Rs.30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant consideration results in denial of equal opportunity to the Respondents in the matter of employment under the Government under Article 16 of the Constitution.It is well-settled that under Article 16(1 ) of the Constitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion , (See The General Manager, Southern Railway v. Rangachari([1962] 2 SCR 586 2--206SCI/77)Our attention was drawn to a decision of tiffs Court in Smt. Juthika Bhattacharya v. The State of Madhya Pradesh and Others([1976] 4 SCC 96.) on behalf of the appellants, wherefrom it was pointed out that Government could validly impose comparatively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools. That case is entirely different from the present case. There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management. The educational qualifications and teaching experience which may be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to. impart in the college after taking over the same from the private management. If the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo ante. Such a position, if taken by the Government, is consistent with implementation of a correct educational policy and will not incur the frown of Article 16 of the Constitution. The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teaching in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration. Denial of an opportunity to. these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Government service, for consideration for appointment as Readers is a seriously grim issue.We feel assured that such an argument had not been canvassed by the State in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two Readers (Nos. 9 and 10 in Annexure 1). The only differentia was, therefore, the salary drawn by the Readers on the date of take over. That action based on the salary aspect under the said circular had to. stand the test of Article 16 in the High Court, as well as, before us. the argument in favour of complete erasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment .as a Reader, but whether he is suitable for selection for the post is an entirely differente are, therefore, clearly of opinion that all the Respondents are eligible to be referred to the Public Service Commission for the post of Reader. Their names shall be referred to the Commission, accordingly. Whether they will be suitable for appointment us Readers will be a matter entirely for due and proper consideration of the Public Service Commission whose recommendations will be considered by the Government in the matter of final absorption. The High Court was right in allowing the above claim in the writ applications.
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Brijlal S/O Sadasukh Modani Vs. The State of Maharashtra Through The Secretary To The Government of Maharashtra & Others | are sufficient proof to arrive at conclusion that the functioning of the Bank is regulated and controlled by the Reserve Bank of India. We do not accept the proposition advanced by the learned A.P.P. It is settled position that general regulations under an Act, like the Companies Act or Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Whatever control exercised by the Government or its authorities under the provisions of the Act are meant to ensure proper functioning of the society. The Government or in this case the Reserve Bank of India or any other statutory authorities have no role to play in day-to-day functioning of the societies / banks much less exercise control over the recruitment of the staff, its service conditions etc. Considering the provisions of the different enactments more particularly the provisions of the Banking Regulation Act 1949, we are of the view that the Reserve Bank of India or the Government or its authorises do not exercise any direct, deep and pervasive control over the functioning of the Bank.24) In Apex Co-op. Bank v. M.S. Co-op. Bank Ltd., (AIR 2004 SC 141 ) the Apex Court in para 15 observed that:"The power to regulate, supersede, order moratorium, amalgamation or winding are extricable only be in respect of a cooperative bank. Such power cannot be exercised in respect of any co-operative society which is not a co-operative bank. Far from supporting the case now sought to be made but, this shows that it is only a cooperative bank which can be licensed and then controlled by RBI."25) The learned Additional Public Prosecutor appearing for the State has placed reliance on the case of Govt. of Andhra Pradesh v. P. Venku Reddy (2002 AIR SCW 3895) 3895). In the facts of the said case, there was no dispute that the respondent accused was in service of aCo-operative Central Bank which is an authority or body controlled and aided by the government. In the light of the said facts, it was observed in paragraphs 12 and 13 thus:"12. In construing definition of public servant in Clause (c) of S.2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh (AIR 2000 SC 575).13. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the respondent/accused by the judgment in the case of State of Maharashtra & Anr. v. Prabhakarrao & Anr. 2002 (1) JT (Suppl.1) (SC) 5. The ratio of the judgment in the case of P. Venku Reddy (cited supra) does not apply to the facts of the case as the present Bank does not receive aid from the State or Central Government nor it is controlled by the Government or a Government company.26) The learned APP further submitted that the petitioner could raise all these issues before the authority in response to the notice issued. The petition is premature and the petitioner is not entitled to challenge the notice in exercise of writ jurisdiction of this Court.27) We find that in the present case the petitioner has questioned the jurisdiction of respondent No.3 to issue notice for enquiring about the property of the petitioner in exercise of powers conferred under the provisions of the Prevention of Corruption Act. There is no dispute on this point. This is not a case where the police machinery while exercising powers under the Code of Criminal Procedure in connection with a penal offence has initiated some proceedings against the petitioner. We are of the opinion that the petition would be maintainable in the facts of the case and the issues raised therein. Respondent No.3 has put forth his stand by way of affidavits-in-reply. Therefore it would not be reasonable and proper now to relegate the petitioner to alternative forum by asking him to appear before respondent No.3 and agitate the same issues.28) We are, therefore, of the opinion that the petitioner who discharged his duties as General Manger could not be termed as a public servant as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act 1949 the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under the multi-State Cooperative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorises. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention Corruption Act against the petitioner. The impugned, notices issued to the petitioner by the respondent No.3 are without jurisdiction and null and void. The notices are required to be quashed and set aside. | 1[ds]16) We have considered the provisions of the different enactments for ascertaining whether the State Government or Central Government or its authority control the functioning or the management of the Bank and even govern the service conditions of its employees. Section 2(c) of the Prevention of Corruption Act 1988 defines "public servant". We are concerned with clauses (iii) and (ix) of the said section. While considering the provisions contained in clause (iii) of Section 2(c) we find that the Bank was not established by or under a Central or State Act or by an authority or a body owned or controlled or aided by the State or Central Government. It is even not a Government company as defined in section 617 of the Companies Act, 1956. While considering the provisions of Section 2(c) (ix) we find that the Bank does not receive any financial aid from the Central or State Government. We had even enquired with the learned Additional Public Prosecutor, who was instructed by the officers, to place before this Court any evidence, in case it is there, to the effect that the Bank was provided with financial aid by the Government or its authority or Corporation established by the Government. The learned A.P.P. stated that there is no such evidence brought to his notice that the Bank was getting financial aid.17) The provisions of Sectionand 36 of the Banking Regulation Act 1949 were referred to by respondent No.3 to support contentions that the Reserve Bank of India has powers to issue directions which would amount to having control over the functioning of the Bank. Reference was also made to the provisions of Section 56 of the Act of 1949 which speak that the provisions of the Act of 1949 would apply to any cooperative society as they apply to banking companies subject to the modifications enumerated thereunder.18) We have perused theof the Bank registered as aCooperative Society. Bye law No.21 says that the final authority of the society shall vest in the General Body. The Board of the Bank would convene annual general meting for the purposes of taking decisions on various issues.No.55 refers to the service rules. The Bank shall have service rules for regulating the service conditions of its employees as formulated and amended by the Board from time to time. The Bank shall maintain a Contributory Provident Fund for the benefit of its employees in accordance with the provisions of Employees Provident Fund and Miscellaneous Provisions Act,The question, therefore, would be as to whether the provisions of the Banking Regulation Act which were introduced by the Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 (24 of 2004) amending some of the provisions bringing into its sweep regulating control over societies which transact banking business, are attracted in the case in hand. Perusal of the Banking Regulation Act 1949 indicates that the Reserve Bank of India exercises regulatory control and power of supersession of Board of directions ofe bank, grant of licence to startcooperative bank, to lay down policy of grant of loan, recovery of loan amounts, implementation of Deposit Insurance and Credit Guarantee scheme under the Deposit Insurance and Credit Guarantee Corporation Act 1961, winding up of the bank etc. It needs to be considered as to whether these powers enumerated under the Banking Regulation Act 1949 to be exercised by the Reserve Bank of India operate as deep and pervasive control of the Bank so as to treat the persons working in the capacity of president, secretary or other office bearers like General Manager, Manager to be public servants for the purpose of application of the Prevention of Corruption Actis settled position that general regulations under an Act, like the Companies Act or Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Whatever control exercised by the Government or its authorities under the provisions of the Act are meant to ensure proper functioning of the society. The Government or in this case the Reserve Bank of India or any other statutory authorities have no role to play infunctioning of the societies / banks much less exercise control over the recruitment of the staff, its service conditions etc. Considering the provisions of the different enactments more particularly the provisions of the Banking Regulation Act 1949, we are of the view that the Reserve Bank of India or the Government or its authorises do not exercise any direct, deep and pervasive control over the functioning of theWe find that in the present case the petitioner has questioned the jurisdiction of respondent No.3 to issue notice for enquiring about the property of the petitioner in exercise of powers conferred under the provisions of the Prevention of Corruption Act. There is no dispute on this point. This is not a case where the police machinery while exercising powers under the Code of Criminal Procedure in connection with a penal offence has initiated some proceedings against the petitioner. We are of the opinion that the petition would be maintainable in the facts of the case and the issues raised therein. Respondent No.3 has put forth his stand by way ofTherefore it would not be reasonable and proper now to relegate the petitioner to alternative forum by asking him to appear before respondent No.3 and agitate the same issues.28) We are, therefore, of the opinion that the petitioner who discharged his duties as General Manger could not be termed as a public servant as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act 1949 the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under theCooperative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorises. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention Corruption Act against the petitioner. The impugned, notices issued to the petitioner by the respondent No.3 are without jurisdiction and null and void. The notices are required to be quashed and set aside. | 1 | 7,281 | 1,174 | ### Instruction:
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are sufficient proof to arrive at conclusion that the functioning of the Bank is regulated and controlled by the Reserve Bank of India. We do not accept the proposition advanced by the learned A.P.P. It is settled position that general regulations under an Act, like the Companies Act or Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Whatever control exercised by the Government or its authorities under the provisions of the Act are meant to ensure proper functioning of the society. The Government or in this case the Reserve Bank of India or any other statutory authorities have no role to play in day-to-day functioning of the societies / banks much less exercise control over the recruitment of the staff, its service conditions etc. Considering the provisions of the different enactments more particularly the provisions of the Banking Regulation Act 1949, we are of the view that the Reserve Bank of India or the Government or its authorises do not exercise any direct, deep and pervasive control over the functioning of the Bank.24) In Apex Co-op. Bank v. M.S. Co-op. Bank Ltd., (AIR 2004 SC 141 ) the Apex Court in para 15 observed that:"The power to regulate, supersede, order moratorium, amalgamation or winding are extricable only be in respect of a cooperative bank. Such power cannot be exercised in respect of any co-operative society which is not a co-operative bank. Far from supporting the case now sought to be made but, this shows that it is only a cooperative bank which can be licensed and then controlled by RBI."25) The learned Additional Public Prosecutor appearing for the State has placed reliance on the case of Govt. of Andhra Pradesh v. P. Venku Reddy (2002 AIR SCW 3895) 3895). In the facts of the said case, there was no dispute that the respondent accused was in service of aCo-operative Central Bank which is an authority or body controlled and aided by the government. In the light of the said facts, it was observed in paragraphs 12 and 13 thus:"12. In construing definition of public servant in Clause (c) of S.2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh (AIR 2000 SC 575).13. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the respondent/accused by the judgment in the case of State of Maharashtra & Anr. v. Prabhakarrao & Anr. 2002 (1) JT (Suppl.1) (SC) 5. The ratio of the judgment in the case of P. Venku Reddy (cited supra) does not apply to the facts of the case as the present Bank does not receive aid from the State or Central Government nor it is controlled by the Government or a Government company.26) The learned APP further submitted that the petitioner could raise all these issues before the authority in response to the notice issued. The petition is premature and the petitioner is not entitled to challenge the notice in exercise of writ jurisdiction of this Court.27) We find that in the present case the petitioner has questioned the jurisdiction of respondent No.3 to issue notice for enquiring about the property of the petitioner in exercise of powers conferred under the provisions of the Prevention of Corruption Act. There is no dispute on this point. This is not a case where the police machinery while exercising powers under the Code of Criminal Procedure in connection with a penal offence has initiated some proceedings against the petitioner. We are of the opinion that the petition would be maintainable in the facts of the case and the issues raised therein. Respondent No.3 has put forth his stand by way of affidavits-in-reply. Therefore it would not be reasonable and proper now to relegate the petitioner to alternative forum by asking him to appear before respondent No.3 and agitate the same issues.28) We are, therefore, of the opinion that the petitioner who discharged his duties as General Manger could not be termed as a public servant as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act 1949 the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under the multi-State Cooperative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorises. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention Corruption Act against the petitioner. The impugned, notices issued to the petitioner by the respondent No.3 are without jurisdiction and null and void. The notices are required to be quashed and set aside.
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not established by or under a Central or State Act or by an authority or a body owned or controlled or aided by the State or Central Government. It is even not a Government company as defined in section 617 of the Companies Act, 1956. While considering the provisions of Section 2(c) (ix) we find that the Bank does not receive any financial aid from the Central or State Government. We had even enquired with the learned Additional Public Prosecutor, who was instructed by the officers, to place before this Court any evidence, in case it is there, to the effect that the Bank was provided with financial aid by the Government or its authority or Corporation established by the Government. The learned A.P.P. stated that there is no such evidence brought to his notice that the Bank was getting financial aid.17) The provisions of Sectionand 36 of the Banking Regulation Act 1949 were referred to by respondent No.3 to support contentions that the Reserve Bank of India has powers to issue directions which would amount to having control over the functioning of the Bank. Reference was also made to the provisions of Section 56 of the Act of 1949 which speak that the provisions of the Act of 1949 would apply to any cooperative society as they apply to banking companies subject to the modifications enumerated thereunder.18) We have perused theof the Bank registered as aCooperative Society. Bye law No.21 says that the final authority of the society shall vest in the General Body. The Board of the Bank would convene annual general meting for the purposes of taking decisions on various issues.No.55 refers to the service rules. The Bank shall have service rules for regulating the service conditions of its employees as formulated and amended by the Board from time to time. The Bank shall maintain a Contributory Provident Fund for the benefit of its employees in accordance with the provisions of Employees Provident Fund and Miscellaneous Provisions Act,The question, therefore, would be as to whether the provisions of the Banking Regulation Act which were introduced by the Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 (24 of 2004) amending some of the provisions bringing into its sweep regulating control over societies which transact banking business, are attracted in the case in hand. Perusal of the Banking Regulation Act 1949 indicates that the Reserve Bank of India exercises regulatory control and power of supersession of Board of directions ofe bank, grant of licence to startcooperative bank, to lay down policy of grant of loan, recovery of loan amounts, implementation of Deposit Insurance and Credit Guarantee scheme under the Deposit Insurance and Credit Guarantee Corporation Act 1961, winding up of the bank etc. It needs to be considered as to whether these powers enumerated under the Banking Regulation Act 1949 to be exercised by the Reserve Bank of India operate as deep and pervasive control of the Bank so as to treat the persons working in the capacity of president, secretary or other office bearers like General Manager, Manager to be public servants for the purpose of application of the Prevention of Corruption Actis settled position that general regulations under an Act, like the Companies Act or Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Whatever control exercised by the Government or its authorities under the provisions of the Act are meant to ensure proper functioning of the society. The Government or in this case the Reserve Bank of India or any other statutory authorities have no role to play infunctioning of the societies / banks much less exercise control over the recruitment of the staff, its service conditions etc. Considering the provisions of the different enactments more particularly the provisions of the Banking Regulation Act 1949, we are of the view that the Reserve Bank of India or the Government or its authorises do not exercise any direct, deep and pervasive control over the functioning of theWe find that in the present case the petitioner has questioned the jurisdiction of respondent No.3 to issue notice for enquiring about the property of the petitioner in exercise of powers conferred under the provisions of the Prevention of Corruption Act. There is no dispute on this point. This is not a case where the police machinery while exercising powers under the Code of Criminal Procedure in connection with a penal offence has initiated some proceedings against the petitioner. We are of the opinion that the petition would be maintainable in the facts of the case and the issues raised therein. Respondent No.3 has put forth his stand by way ofTherefore it would not be reasonable and proper now to relegate the petitioner to alternative forum by asking him to appear before respondent No.3 and agitate the same issues.28) We are, therefore, of the opinion that the petitioner who discharged his duties as General Manger could not be termed as a public servant as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act 1949 the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under theCooperative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorises. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention Corruption Act against the petitioner. The impugned, notices issued to the petitioner by the respondent No.3 are without jurisdiction and null and void. The notices are required to be quashed and set aside.
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J. Chitra Vs. District Collector and Chairman State Level Vigilance Committee, Tamil Nadu & Ors | to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. 6. In Dayaram (supra), this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil (supra) will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees. 7. District Vigilance Committees for verification of community certificates issued to Scheduled Castes/ Scheduled Tribes were reconstituted on 06.07.2005 pursuant to the judgment of this Court in Kumari Madhuri Patil (supra). G.O. 108 dated 12.09.2007 contains guidelines issued by the Government of Tamil Nadu for the functioning of the District and State Level Vigilance Committees. The guidelines issued by the Government in G.O. 108 of 12.09.2007 are as follows: 1. In cases which were remitted to the three-member District Level Vigilance Committee by the State Level Scrutiny Committee as per the Court directions before 12.09.2007, the decision of the District Vigilance Committee reconstituted by G.O. 111 dated 06.07.2005 regarding the genuineness of community certificate of Scheduled Tribes is final. 2. In case of community certificate issued by the Deputy Tahsildar/ Tahsildar has been found to be not genuine by the three-member District Vigilance Committee and an individual has filed an Appeal to the State Level Scrutiny Committee, the individual shall be directed to approach the High Court by filing a Writ Petition. 3. If appeals are filed against orders passed by the two- member District Level Vigilance Committee to the State Level Scrutiny Committee and were not remitted back to the reconstituted three-member Scrutiny Committee by the Government, in view of pendency of Writ Petitions before the Court, the State Level Scrutiny Committee shall conduct an inquiry. 8. In the instant case, an inquiry was conducted by the District Level Vigilance Committee which has upheld the community certificate in favour of the Appellant. The decision of the District Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee. The guidelines issued by G.O.108 dated 12.09.2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry. 9. The District Level Vigilance Committee cancelled the community certificate issued in favour of the Appellant after conducting an inquiry and coming to a conclusion that she belongs to Kailolan community and not to Valluvan community which is a Scheduled Caste. In view of the conclusion that the State Level Scrutiny Committee did not have the power to reopen the matter relating to the caste certificate that was approved by the District Vigilance Committee in the year 1999 without any Appeal filed against that order, it is not necessary for us to deal with the submissions made on behalf of the Appellant relating to the correctness of the findings recorded by the District Vigilance Committee in the year 09.04.2008. | 1[ds]5. Realizing the pernicious practice of false caste certificates being utilized for the purpose of securing admission to educational institutions and public employment depriving genuine candidates of the benefits of reservation, this Court in Kumari Madhuri Patil (supra) issued the following directions :1. The application for grant of social status certificate shall be made to the Revenue Sub- Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer high-er in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be not genuine or doubtful or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.12. No suit or other proceedings before any other authority should lie.13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.6. In Dayaram (supra), this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil (supra) will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees.8. In the instant case, an inquiry was conducted by the District Level Vigilance Committee which has upheld the community certificate in favour of the Appellant. The decision of the District Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee. The guidelines issued by G.O.108 dated 12.09.2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry.9. The District Level Vigilance Committee cancelled the community certificate issued in favour of the Appellant after conducting an inquiry and coming to a conclusion that she belongs to Kailolan community and not to Valluvan community which is a Scheduled Caste. In view of the conclusion that the State Level Scrutiny Committee did not have the power to reopen the matter relating to the caste certificate that was approved by the District Vigilance Committee in the year 1999 without any Appeal filed against that order, it is not necessary for us to deal with the submissions made on behalf of the Appellant relating to the correctness of the findings recorded by the District Vigilance Committee in the year 09.04.2008. | 1 | 3,173 | 1,818 | ### Instruction:
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to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. 6. In Dayaram (supra), this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil (supra) will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees. 7. District Vigilance Committees for verification of community certificates issued to Scheduled Castes/ Scheduled Tribes were reconstituted on 06.07.2005 pursuant to the judgment of this Court in Kumari Madhuri Patil (supra). G.O. 108 dated 12.09.2007 contains guidelines issued by the Government of Tamil Nadu for the functioning of the District and State Level Vigilance Committees. The guidelines issued by the Government in G.O. 108 of 12.09.2007 are as follows: 1. In cases which were remitted to the three-member District Level Vigilance Committee by the State Level Scrutiny Committee as per the Court directions before 12.09.2007, the decision of the District Vigilance Committee reconstituted by G.O. 111 dated 06.07.2005 regarding the genuineness of community certificate of Scheduled Tribes is final. 2. In case of community certificate issued by the Deputy Tahsildar/ Tahsildar has been found to be not genuine by the three-member District Vigilance Committee and an individual has filed an Appeal to the State Level Scrutiny Committee, the individual shall be directed to approach the High Court by filing a Writ Petition. 3. If appeals are filed against orders passed by the two- member District Level Vigilance Committee to the State Level Scrutiny Committee and were not remitted back to the reconstituted three-member Scrutiny Committee by the Government, in view of pendency of Writ Petitions before the Court, the State Level Scrutiny Committee shall conduct an inquiry. 8. In the instant case, an inquiry was conducted by the District Level Vigilance Committee which has upheld the community certificate in favour of the Appellant. The decision of the District Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee. The guidelines issued by G.O.108 dated 12.09.2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry. 9. The District Level Vigilance Committee cancelled the community certificate issued in favour of the Appellant after conducting an inquiry and coming to a conclusion that she belongs to Kailolan community and not to Valluvan community which is a Scheduled Caste. In view of the conclusion that the State Level Scrutiny Committee did not have the power to reopen the matter relating to the caste certificate that was approved by the District Vigilance Committee in the year 1999 without any Appeal filed against that order, it is not necessary for us to deal with the submissions made on behalf of the Appellant relating to the correctness of the findings recorded by the District Vigilance Committee in the year 09.04.2008.
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giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.12. No suit or other proceedings before any other authority should lie.13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.6. In Dayaram (supra), this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil (supra) will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees.8. In the instant case, an inquiry was conducted by the District Level Vigilance Committee which has upheld the community certificate in favour of the Appellant. The decision of the District Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee. The guidelines issued by G.O.108 dated 12.09.2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry.9. The District Level Vigilance Committee cancelled the community certificate issued in favour of the Appellant after conducting an inquiry and coming to a conclusion that she belongs to Kailolan community and not to Valluvan community which is a Scheduled Caste. In view of the conclusion that the State Level Scrutiny Committee did not have the power to reopen the matter relating to the caste certificate that was approved by the District Vigilance Committee in the year 1999 without any Appeal filed against that order, it is not necessary for us to deal with the submissions made on behalf of the Appellant relating to the correctness of the findings recorded by the District Vigilance Committee in the year 09.04.2008.
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Commissioner of Income Tax Vs. Udayan Chinubhai and Others | of his income and an amount which by the nature of the obligation, cannot be said to be a part of the income of the assessee. Where by the obligation, income was diverted, before it reached the assessee, it was deductible; but where the income was required to be applied to discharge an obligation after such income reached the assessee, the same consequences in law did not follow. It was the first kind of payment which could truly be excused and not the second. The second payment was merely an obligation to pay another a portion of ones own income which had been received and was since applied. 31. The case before us is a case where the assessee is obliged to pay all the debts which have been allotted to him. But as was pointed out by Hidayatullah, J. the obligation to apply the income to discharge a debt will not amount to diversion of the income at source even before the amounts became the assessees income. 32. The principle laid down in the case of Sitaldas Tirathdas was explained by this Court in Moti Lal Chhadami Lal Jain v. CIT where it was held : (SCC p. 238, para 17). "Where the obligation flows out of an antecedent and independent title in the former (such as, for example, the rights of dependents to maintenance or of coparceners on partition, or rights under a statutory provision or an obligation imposed by a third party and the like), it effectively slices away a part of the corpus of the right of the latter to receive the entire income and so it would be a case of diversion. On the other hand, where the obligation is self-imposed or gratuitous (as here) it is only a case of an application of income." * 33. These observations were made while reiterating and explaining the principle laid down in the case of Sitaldas Tirathdas. The illustrations given in that passage indicate that in certain situations diversion of income at source may take place by an overriding title depending on the facts of the case. In Sitaldas case the assessee, a HUF, had granted a lease to a company of a plot of land for which the company agreed to pay rent of Rs. 21, 000.00 out of which Rs. 10, 000.00 was to be paid to a college run by a trust. It was held even though the amount was to be paid under the lease agreement to the college, no diversion of income at source had taken place. The entire rental income of Rs. 21, 000.00 had to be assessed as income of the HUF. 34. The second question in that case was in respect of a trust created by the HUF for charitable purpose. The Karta himself was to be the first trustee. The High Court was of the view that a valid trust had not been created. On a review of the facts, this Court held that a valid trust had come into existence. Consequently, the income of the trust could not be included in the income of the family. 35. This decision does not come to the aid of the respondents contention in any way. If a valid charitable trust is created, the income of the trust cannot be treated as the income of the settlor. The properties held by the Karta as trustee cannot be treated as properties of the HUF. This is not a case of diversion of income by overriding title, but transfer of the income-yielding property itself to the trustee. The Karta became a trustee of the charitable trust set up by the family. 36. The basic principle to be borne in mind in this type of cases is that when a person pays his debts or maintains his wife or children or anybody else whom he is obliged to maintain, the expenditure incurred in such cases will be application of the assessees income and not diversion of the income at source. If he does not pay what he should have paid and is compelled by a court order to pay, it will still not be a case of diversion of income at source. Even if a charge is created on the properties of the assessee for enforcing payment, the position in law will not change. This was made clear in the case of IRC v. Paterson [ 1924 (9) Tax(Cas) 163]. It must also be borne in mind that in Raja Bejoy Singh Dudhuria case the charge on the properties inherited by the Raja was created to secure payment of maintenance of his stepmother. Lord Macmillan quoted with approval the observation of Rankin, C.J. "The learned Chief Justice in his judgment, which was concurred in by his colleagues, Ghose and Buckland, JJ., deals with the case on the footing that, by the decree of the court, the appellants stepmother had a charge not only on his zemindary property from which his agricultural income was derived, but also on all his other sources of income included in the assessment. He rejects the suggestion that the appellants liability to his stepmother was of the same kind as his liability to provide for his wives and daughter, and states that the position is the same as if the appellant had received his various properties, securities and businesses under a bequest from his father upon the terms that these assets were charged with an annuity for the maintenance of the widow. The case was not one of a charge created by the Raja for the payment of debts which he has voluntarily incurred. Their Lordships agree that this is the correct approach to the question." * 37. This decision clearly indicates that payment made for maintenance of wife and daughter out of the income of an assessee will not be diversion of income at source nor will a charge created by an assessee for payment of voluntarily incurred debts have the effect of diverting the assessees income at source. | 1[ds]14. In our view, the High Court overlooked the fact that the position of the creditors was not strengthened in any way by virtue of the partition that had taken place. It is true that the award given by the arbitrator was followed up by a decree in terms of the award. That, however, did not alter the position of the creditors in any way. There was considerable doubt whether the sons were liable to pay the Avyavaharic debts of the father. After the award of the arbitrator, these questions could not be raised by the sons. The arbitrator had given a finding that these debts will have to be paid. Therefore, the wife and the sons were liable to pay a portion of these debts which were allotted to them. But the High Court overlooked the fact that these debts were not a charge upon the HUF properties before the partition took place. The position continued to be the same after the partition. If a man incurs a debt, he will have to pay the debt and till the debt is paid in full, he may have to pay interest on that debt. But whether the interest is allowable as a deduction or not will depend upon the provisions of the Income Tax Act. No question of diversion of income by overriding title can arise in a case like this. A man has to pay his debts out of his income. Merely because of the liability to pay the debts, it cannot be said that the income from the assets that he received on partition stood diverted by overriding title to the creditors. The tribunal has rightly pointed out that the assessees were at liberty to spend the income from the assets allotted to them as they liked. The creditors could not insist that the debts had to be cleared before spending any money out of the income received by the assessee from theThis decision does not come to the aid of the respondents contention in any way. If a valid charitable trust is created, the income of the trust cannot be treated as the income of the settlor. The properties held by the Karta as trustee cannot be treated as properties of the HUF. This is not a case of diversion of income by overriding title, but transfer of the income-yielding property itself to the trustee. The Karta became a trustee of the charitable trust set up by theThe basic principle to be borne in mind in this type of cases is that when a person pays his debts or maintains his wife or children or anybody else whom he is obliged to maintain, the expenditure incurred in such cases will be application of the assessees income and not diversion of the income at source. If he does not pay what he should have paid and is compelled by a court order to pay, it will still not be a case of diversion of income at source. Even if a charge is created on the properties of the assessee for enforcing payment, the position in law will not change. This was made clear in the case of IRCv. Paterson [ 1924 (9) Tax(Cas)It must also be borne in mind that in Raja Bejoy Singh Dudhuria case the charge on the properties inherited by the Raja was created to secure payment of maintenance of his stepmother. Lord Macmillan quoted with approval the observation of Rankin,learned Chief Justice in his judgment, which was concurred in by his colleagues, Ghose and Buckland, JJ., deals with the case on the footing that, by the decree of the court, the appellants stepmother had a charge not only on his zemindary property from which his agricultural income was derived, but also on all his other sources of income included in the assessment. He rejects the suggestion that the appellants liability to his stepmother was of the same kind as his liability to provide for his wives and daughter, and states that the position is the same as if the appellant had received his various properties, securities and businesses under a bequest from his father upon the terms that these assets were charged with an annuity for the maintenance of the widow. The case was not one of a charge created by the Raja for the payment of debts which he has voluntarily incurred. Their Lordships agree that this is the correct approach to the question."This decision clearly indicates that payment made for maintenance of wife and daughter out of the income of an assessee will not be diversion of income at source nor will a charge created by an assessee for payment of voluntarily incurred debts have the effect of diverting the assessees income at source | 1 | 6,664 | 860 | ### 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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of his income and an amount which by the nature of the obligation, cannot be said to be a part of the income of the assessee. Where by the obligation, income was diverted, before it reached the assessee, it was deductible; but where the income was required to be applied to discharge an obligation after such income reached the assessee, the same consequences in law did not follow. It was the first kind of payment which could truly be excused and not the second. The second payment was merely an obligation to pay another a portion of ones own income which had been received and was since applied. 31. The case before us is a case where the assessee is obliged to pay all the debts which have been allotted to him. But as was pointed out by Hidayatullah, J. the obligation to apply the income to discharge a debt will not amount to diversion of the income at source even before the amounts became the assessees income. 32. The principle laid down in the case of Sitaldas Tirathdas was explained by this Court in Moti Lal Chhadami Lal Jain v. CIT where it was held : (SCC p. 238, para 17). "Where the obligation flows out of an antecedent and independent title in the former (such as, for example, the rights of dependents to maintenance or of coparceners on partition, or rights under a statutory provision or an obligation imposed by a third party and the like), it effectively slices away a part of the corpus of the right of the latter to receive the entire income and so it would be a case of diversion. On the other hand, where the obligation is self-imposed or gratuitous (as here) it is only a case of an application of income." * 33. These observations were made while reiterating and explaining the principle laid down in the case of Sitaldas Tirathdas. The illustrations given in that passage indicate that in certain situations diversion of income at source may take place by an overriding title depending on the facts of the case. In Sitaldas case the assessee, a HUF, had granted a lease to a company of a plot of land for which the company agreed to pay rent of Rs. 21, 000.00 out of which Rs. 10, 000.00 was to be paid to a college run by a trust. It was held even though the amount was to be paid under the lease agreement to the college, no diversion of income at source had taken place. The entire rental income of Rs. 21, 000.00 had to be assessed as income of the HUF. 34. The second question in that case was in respect of a trust created by the HUF for charitable purpose. The Karta himself was to be the first trustee. The High Court was of the view that a valid trust had not been created. On a review of the facts, this Court held that a valid trust had come into existence. Consequently, the income of the trust could not be included in the income of the family. 35. This decision does not come to the aid of the respondents contention in any way. If a valid charitable trust is created, the income of the trust cannot be treated as the income of the settlor. The properties held by the Karta as trustee cannot be treated as properties of the HUF. This is not a case of diversion of income by overriding title, but transfer of the income-yielding property itself to the trustee. The Karta became a trustee of the charitable trust set up by the family. 36. The basic principle to be borne in mind in this type of cases is that when a person pays his debts or maintains his wife or children or anybody else whom he is obliged to maintain, the expenditure incurred in such cases will be application of the assessees income and not diversion of the income at source. If he does not pay what he should have paid and is compelled by a court order to pay, it will still not be a case of diversion of income at source. Even if a charge is created on the properties of the assessee for enforcing payment, the position in law will not change. This was made clear in the case of IRC v. Paterson [ 1924 (9) Tax(Cas) 163]. It must also be borne in mind that in Raja Bejoy Singh Dudhuria case the charge on the properties inherited by the Raja was created to secure payment of maintenance of his stepmother. Lord Macmillan quoted with approval the observation of Rankin, C.J. "The learned Chief Justice in his judgment, which was concurred in by his colleagues, Ghose and Buckland, JJ., deals with the case on the footing that, by the decree of the court, the appellants stepmother had a charge not only on his zemindary property from which his agricultural income was derived, but also on all his other sources of income included in the assessment. He rejects the suggestion that the appellants liability to his stepmother was of the same kind as his liability to provide for his wives and daughter, and states that the position is the same as if the appellant had received his various properties, securities and businesses under a bequest from his father upon the terms that these assets were charged with an annuity for the maintenance of the widow. The case was not one of a charge created by the Raja for the payment of debts which he has voluntarily incurred. Their Lordships agree that this is the correct approach to the question." * 37. This decision clearly indicates that payment made for maintenance of wife and daughter out of the income of an assessee will not be diversion of income at source nor will a charge created by an assessee for payment of voluntarily incurred debts have the effect of diverting the assessees income at source.
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14. In our view, the High Court overlooked the fact that the position of the creditors was not strengthened in any way by virtue of the partition that had taken place. It is true that the award given by the arbitrator was followed up by a decree in terms of the award. That, however, did not alter the position of the creditors in any way. There was considerable doubt whether the sons were liable to pay the Avyavaharic debts of the father. After the award of the arbitrator, these questions could not be raised by the sons. The arbitrator had given a finding that these debts will have to be paid. Therefore, the wife and the sons were liable to pay a portion of these debts which were allotted to them. But the High Court overlooked the fact that these debts were not a charge upon the HUF properties before the partition took place. The position continued to be the same after the partition. If a man incurs a debt, he will have to pay the debt and till the debt is paid in full, he may have to pay interest on that debt. But whether the interest is allowable as a deduction or not will depend upon the provisions of the Income Tax Act. No question of diversion of income by overriding title can arise in a case like this. A man has to pay his debts out of his income. Merely because of the liability to pay the debts, it cannot be said that the income from the assets that he received on partition stood diverted by overriding title to the creditors. The tribunal has rightly pointed out that the assessees were at liberty to spend the income from the assets allotted to them as they liked. The creditors could not insist that the debts had to be cleared before spending any money out of the income received by the assessee from theThis decision does not come to the aid of the respondents contention in any way. If a valid charitable trust is created, the income of the trust cannot be treated as the income of the settlor. The properties held by the Karta as trustee cannot be treated as properties of the HUF. This is not a case of diversion of income by overriding title, but transfer of the income-yielding property itself to the trustee. The Karta became a trustee of the charitable trust set up by theThe basic principle to be borne in mind in this type of cases is that when a person pays his debts or maintains his wife or children or anybody else whom he is obliged to maintain, the expenditure incurred in such cases will be application of the assessees income and not diversion of the income at source. If he does not pay what he should have paid and is compelled by a court order to pay, it will still not be a case of diversion of income at source. Even if a charge is created on the properties of the assessee for enforcing payment, the position in law will not change. This was made clear in the case of IRCv. Paterson [ 1924 (9) Tax(Cas)It must also be borne in mind that in Raja Bejoy Singh Dudhuria case the charge on the properties inherited by the Raja was created to secure payment of maintenance of his stepmother. Lord Macmillan quoted with approval the observation of Rankin,learned Chief Justice in his judgment, which was concurred in by his colleagues, Ghose and Buckland, JJ., deals with the case on the footing that, by the decree of the court, the appellants stepmother had a charge not only on his zemindary property from which his agricultural income was derived, but also on all his other sources of income included in the assessment. He rejects the suggestion that the appellants liability to his stepmother was of the same kind as his liability to provide for his wives and daughter, and states that the position is the same as if the appellant had received his various properties, securities and businesses under a bequest from his father upon the terms that these assets were charged with an annuity for the maintenance of the widow. The case was not one of a charge created by the Raja for the payment of debts which he has voluntarily incurred. Their Lordships agree that this is the correct approach to the question."This decision clearly indicates that payment made for maintenance of wife and daughter out of the income of an assessee will not be diversion of income at source nor will a charge created by an assessee for payment of voluntarily incurred debts have the effect of diverting the assessees income at source
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Hindustan Lever Ltd Vs. Commissioner of Sales Tax, Gujarat | Bharucha, J.-- 1. This appeal by special leave from the judgment and order of a Division Bench of the High Court of Gujarat concerns the classification of cut and dried chicory roots.2. It is the case of the appellant assessees that these chicory roots fall either under Entry 8 or Entry 23 of the First Schedule of the Gujarat Sales Tax Act, 1969, as it then stood. It is the case of the Revenue, on the other hand, that they fall under the residuary entry, Entry 13 of the Third Schedule of the said Act. Entries 8 and 23 of the First Schedule read thus:"8. Fresh vegetables and edible tubers.* * *23. Flower, fruit and vegetable seed; seeds of lucerne grass (Rajka) and of sann hemp; bulbs, tubers and plants other than orchids."3. That chicory roots are a "tuber" is not disputed. The question is whether the chicory roots, as cut and dried, are a commodity different from the tuber itself.4. The appellants manufacture coffee. Chicory is an ingredient in the manufacture of coffee. The appellants entered into agreements in similar terms with cultivators whereunder the cultivators grew chicory and the appellants purchased the same. Clause (1) of the agreement stated that the cultivators would grow chicory in stated acreages of their farms under the supervision of the appellants officers. The chicory that was to be grown would be subject to sample surveys by the appellants. The cultivators were required to"deliver to the Company such quantity of the chicory yields grown in the fields with the seeds supplied by the Company as will meet the Companys total demand or requirement ...."After harvesting, the cultivators were required to wash the chicory roots, cut off at least half an inch of the roots below the crown and slice the roots into lengths varying from half inch to two and a half inches, as instructed by the appellants officers. The cultivators were also required to arrange for drying of the chicory roots to the standard stipulated by the appellants.5. Upon the basis of the agreement aforesaid, the Tribunal took the view that the chicory roots could not be said to be edible tubers which were normally used in the like manner as fresh vegetables. It also took the view that the dry chicory roots could not be said to be tubers fit for the growing of fresh plants therefrom. Therefore, the dry chicory roots fell outside the scope of both Entries 8 and 23. The High Court applied the popular parlance test and concluded that the dry chicory roots could not be said to be tubers within the meaning of the two entries. 6. Learned counsel for the appellants drew our attention to the clauses of the agreement and he submitted that the fact that the chicory roots were cut and dried by the cultivators did not change their character as chicory roots. He cited the judgment of this Court in CST v. Pio Food Packers (1980 (Supp.) SCC 174 : 1980 SCC (Tax) 319). Learned counsel for the Revenue submitted that the character of the chicory roots did change; upon drying and cutting they lost their character as tubers and, applying the popular parlance test, could no longer be said to be such. 7. The case of Pio Food Packers (1980 (Supp.) SCC 174 : 1980 SCC (Tax) 319) aforementioned was concerned with pineapples which, after washing, were cut so that the inedible portions were removed. They were then sliced and canned in preservatives and the cans were sealed and sterilised. The question was: "Is the pineapple fruit consumed in the manufacture of pineapple slices?" This Court referred to its earlier judgments where this principle had been applied: "Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity." The Court found that there was no essential difference between the pineapple fruit and the canned pineapple slices. The only difference was that the sliced pineapple was a presentation of the fruit in a more convenient form and, by reason of being canned, it was capable of storage without spoiling. The additional sweetness in the canned pineapple arose from the sugar that was added as a preservative. On a total impression, it was held that the pineapple slices possessed the same identity as the original pineapple fruit.8. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was not of great significance. It was, clearly, only to provide convenience in delivery. The essential character of the chicory roots did not change by reason of the cutting, slicing and drying.9. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is no material on record to show that dried chicory roots are edible.10. The contention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp; and bulbs fall in the same category. There is no doubt that this is so, but the entry also goes on to mention "tubers and plants other than orchids". Plants, as such, do not germinate. Tubers are linked to plants in the entry and must be similarly construed. Therefore, there being no dispute that chicory roots are tubers, they would, in our view, fall within the ambit of Entry 23 and must be subjected to tax accordingly. | 1[ds]8. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was not of great significance. It was, clearly, only to provide convenience in delivery. The essential character of the chicory roots did not change by reason of the cutting, slicing and drying.9. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is no material on record to show that dried chicory roots are edible.10. The contention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp; and bulbs fall in the same category. There is no doubt that this is so, but the entry also goes on to mention "tubers and plants other than orchids". Plants, as such, do not germinate. Tubers are linked to plants in the entry and must be similarly construed. Therefore, there being no dispute that chicory roots are tubers, they would, in our view, fall within the ambit of Entry 23 and must be subjected to tax accordingly. | 1 | 1,120 | 273 | ### 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:
Bharucha, J.-- 1. This appeal by special leave from the judgment and order of a Division Bench of the High Court of Gujarat concerns the classification of cut and dried chicory roots.2. It is the case of the appellant assessees that these chicory roots fall either under Entry 8 or Entry 23 of the First Schedule of the Gujarat Sales Tax Act, 1969, as it then stood. It is the case of the Revenue, on the other hand, that they fall under the residuary entry, Entry 13 of the Third Schedule of the said Act. Entries 8 and 23 of the First Schedule read thus:"8. Fresh vegetables and edible tubers.* * *23. Flower, fruit and vegetable seed; seeds of lucerne grass (Rajka) and of sann hemp; bulbs, tubers and plants other than orchids."3. That chicory roots are a "tuber" is not disputed. The question is whether the chicory roots, as cut and dried, are a commodity different from the tuber itself.4. The appellants manufacture coffee. Chicory is an ingredient in the manufacture of coffee. The appellants entered into agreements in similar terms with cultivators whereunder the cultivators grew chicory and the appellants purchased the same. Clause (1) of the agreement stated that the cultivators would grow chicory in stated acreages of their farms under the supervision of the appellants officers. The chicory that was to be grown would be subject to sample surveys by the appellants. The cultivators were required to"deliver to the Company such quantity of the chicory yields grown in the fields with the seeds supplied by the Company as will meet the Companys total demand or requirement ...."After harvesting, the cultivators were required to wash the chicory roots, cut off at least half an inch of the roots below the crown and slice the roots into lengths varying from half inch to two and a half inches, as instructed by the appellants officers. The cultivators were also required to arrange for drying of the chicory roots to the standard stipulated by the appellants.5. Upon the basis of the agreement aforesaid, the Tribunal took the view that the chicory roots could not be said to be edible tubers which were normally used in the like manner as fresh vegetables. It also took the view that the dry chicory roots could not be said to be tubers fit for the growing of fresh plants therefrom. Therefore, the dry chicory roots fell outside the scope of both Entries 8 and 23. The High Court applied the popular parlance test and concluded that the dry chicory roots could not be said to be tubers within the meaning of the two entries. 6. Learned counsel for the appellants drew our attention to the clauses of the agreement and he submitted that the fact that the chicory roots were cut and dried by the cultivators did not change their character as chicory roots. He cited the judgment of this Court in CST v. Pio Food Packers (1980 (Supp.) SCC 174 : 1980 SCC (Tax) 319). Learned counsel for the Revenue submitted that the character of the chicory roots did change; upon drying and cutting they lost their character as tubers and, applying the popular parlance test, could no longer be said to be such. 7. The case of Pio Food Packers (1980 (Supp.) SCC 174 : 1980 SCC (Tax) 319) aforementioned was concerned with pineapples which, after washing, were cut so that the inedible portions were removed. They were then sliced and canned in preservatives and the cans were sealed and sterilised. The question was: "Is the pineapple fruit consumed in the manufacture of pineapple slices?" This Court referred to its earlier judgments where this principle had been applied: "Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity." The Court found that there was no essential difference between the pineapple fruit and the canned pineapple slices. The only difference was that the sliced pineapple was a presentation of the fruit in a more convenient form and, by reason of being canned, it was capable of storage without spoiling. The additional sweetness in the canned pineapple arose from the sugar that was added as a preservative. On a total impression, it was held that the pineapple slices possessed the same identity as the original pineapple fruit.8. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was not of great significance. It was, clearly, only to provide convenience in delivery. The essential character of the chicory roots did not change by reason of the cutting, slicing and drying.9. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is no material on record to show that dried chicory roots are edible.10. The contention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp; and bulbs fall in the same category. There is no doubt that this is so, but the entry also goes on to mention "tubers and plants other than orchids". Plants, as such, do not germinate. Tubers are linked to plants in the entry and must be similarly construed. Therefore, there being no dispute that chicory roots are tubers, they would, in our view, fall within the ambit of Entry 23 and must be subjected to tax accordingly.
### Response:
1
### Explanation:
8. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was not of great significance. It was, clearly, only to provide convenience in delivery. The essential character of the chicory roots did not change by reason of the cutting, slicing and drying.9. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is no material on record to show that dried chicory roots are edible.10. The contention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp; and bulbs fall in the same category. There is no doubt that this is so, but the entry also goes on to mention "tubers and plants other than orchids". Plants, as such, do not germinate. Tubers are linked to plants in the entry and must be similarly construed. Therefore, there being no dispute that chicory roots are tubers, they would, in our view, fall within the ambit of Entry 23 and must be subjected to tax accordingly.
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