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Kashiram Yadav & Anr Vs. Oriental Fire & Gen. Insurance Co. & Ors | K. JAGANNATHA SHETTY, J. 1. The question raised in this appeal relates to the liability of the owner of an insured vehicle to pay compensation for the accident cause by negligence of an unlicensed driver. 2. The facts which are now found are these: A constable while returning home after performing his duties was knocked down by a tractor owned by appellant 1 - Kashiram Yadav. Appellant 2 - Raghuraj was then driving the tractor. He had not driving licence. The widow of the constable and her children claimed compensation from the appellants and the insurer. The owner resisted the claim contending inter alia that he had already sold the vehicle to a third party and that vehicle was driven by the licensed driver Gaya Prasad at the time of the accident. Both these facts were not established. The Tribunal held that Raghuraj Singh was driving the tractor and the accident took place due to his rash and negligent driving and not due to any fault on the part of the constable. Since Raghuraj Singh had no driving license, the Tribunal held that the owner of the vehicle alone is liable to pay the compensation. Having reached that conclusion, the Tribunal determined the amount of compensation payable to the claimants. A sum of Rs. 96, 000 was awarded with the interest at the rate of 12 per cent per annum till realisation. This award of the Tribunal has been affirmed by the High Court. 3. We are not concerned with the quantum of compensation determined by the Tribunal. That question has not been agitated before us. The only contention that was canvassed before us is as to the liability of the insurer to indemnify the owner to satisfy the judgment against him. 4. Section 96 of the Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub-section(2) thereof provides exception to the liability of the insurer. Sub-section 2(b) of Section 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there has been breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner. 5. Counsel for the appellants however, submitted that insurer alone would be liable to pay the award amount even though the tractor was not driven by a licensed driver. In support of the contention, he placed reliance on the decision of this Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan ((1987) 2 SCC 654 ). We do not think that that decision has any relevance to the present case. There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the conditions incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. 6. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance. 7. But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad (PW 2). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With these distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. case ((1987) 2 SCC 654 ) could be called to aid the appellants. | 0[ds]4. Section 96 ofthe Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub-section(2) thereof provides exception to the liability of the insurer. Sub-section 2(b) of Section 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there has been breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the ownerThe vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the conditions incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach6. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance7. But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad (PW 2). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With these distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. case ((1987) 2 SCC 654 ) could be called to aid the appellants | 0 | 1,086 | 678 | ### Instruction:
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K. JAGANNATHA SHETTY, J. 1. The question raised in this appeal relates to the liability of the owner of an insured vehicle to pay compensation for the accident cause by negligence of an unlicensed driver. 2. The facts which are now found are these: A constable while returning home after performing his duties was knocked down by a tractor owned by appellant 1 - Kashiram Yadav. Appellant 2 - Raghuraj was then driving the tractor. He had not driving licence. The widow of the constable and her children claimed compensation from the appellants and the insurer. The owner resisted the claim contending inter alia that he had already sold the vehicle to a third party and that vehicle was driven by the licensed driver Gaya Prasad at the time of the accident. Both these facts were not established. The Tribunal held that Raghuraj Singh was driving the tractor and the accident took place due to his rash and negligent driving and not due to any fault on the part of the constable. Since Raghuraj Singh had no driving license, the Tribunal held that the owner of the vehicle alone is liable to pay the compensation. Having reached that conclusion, the Tribunal determined the amount of compensation payable to the claimants. A sum of Rs. 96, 000 was awarded with the interest at the rate of 12 per cent per annum till realisation. This award of the Tribunal has been affirmed by the High Court. 3. We are not concerned with the quantum of compensation determined by the Tribunal. That question has not been agitated before us. The only contention that was canvassed before us is as to the liability of the insurer to indemnify the owner to satisfy the judgment against him. 4. Section 96 of the Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub-section(2) thereof provides exception to the liability of the insurer. Sub-section 2(b) of Section 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there has been breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner. 5. Counsel for the appellants however, submitted that insurer alone would be liable to pay the award amount even though the tractor was not driven by a licensed driver. In support of the contention, he placed reliance on the decision of this Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan ((1987) 2 SCC 654 ). We do not think that that decision has any relevance to the present case. There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the conditions incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. 6. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance. 7. But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad (PW 2). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With these distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. case ((1987) 2 SCC 654 ) could be called to aid the appellants.
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4. Section 96 ofthe Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub-section(2) thereof provides exception to the liability of the insurer. Sub-section 2(b) of Section 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there has been breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the ownerThe vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the conditions incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach6. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance7. But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad (PW 2). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With these distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. case ((1987) 2 SCC 654 ) could be called to aid the appellants
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Babu Barkya Thakur Vs. The State Of Bombay And Others | by this Court in the case of State of Bombay v. Bhanji Munji, 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ), that providing housing accommodation to the homeless is a public purpose. In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to errect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We are not in possession of all the relevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respondents that the application is premature is not wholly devoid of merit. 11. But the main attack on the constitutionality of the proceedings in question was based upon the notification under S. 4, which is in these terms :-"Ex. "A". NOTIFICATION REVENUE DEPARTMENT. Sachivalaya, Bombay 3rd April, 1959. LAND ACQUISITION ACT, 1894 (I of 1894) District Thana, No. LTH, 15-59/42051-H-Whereas, it appears to the Government of Bombay that the lands specified in the schedule hereto are likely to be needed for the purposes of the company, viz., for factory buildings, etc., of M/s. Mukund Iron and Steel Works Limited, Bombay; It is hereby notified under the provisions of section 4 of the Land Acquisition Act, 1894 (I of 1894), that the said lands are likely to be needed for the purpose specified above. All persons interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or other persons employed upon the said lands for the purpose of the said acquisition. Any contracts for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise, or any outlay or improvements made therein, without the sanction of the Collector after the date of this notification will, under section 24 (seventhly) of the said Act, be disregarded by the officer assessing compensation for such parts of the said lands as may be finally acquired. If the Government of Bombay is satisfied that the said lands are needed for the aforesaid purpose, a final notification to that effect under S. 6 of the said Act will be published in the Bombay Government Gazette in due course. If the acquisition is abandoned wholly or in part, the fact will be duly notified in the Bombay Government Gazette. Under clause (c) of section 3 of the Land Acquisition Act, 1894, the Government of Bombay is pleased to appoint the Special Land Acquisition Officer. Thana, to perform the function of a Collector under section 5-A of the said Act in respect of the said lands". It is argued that in terms the notification does not state that the land sought to be acquired was needed for a public purpose. In our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that statement should find a place in the notification actually issued. The requirements of the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII, as already indicated.See in this connection 1955-1 SCR 777 ; ( (S) AIR 1955 SC 41 ). In that case the question was whether the Bombay Land Requisition Act (Bombay Act XXXIII of 1948) was invalid inasmuch as the purpose for the requisition was not in express terms stated to be a public purpose. This Court laid it down that the Statute was not invalid for that reason provided that from the whole tenor and intendment of the Act it could be gathered that the property was acquired either for the purpose of the State or for any public purpose. 12. It is further argued that S. 4(1) of the Act had deliberately omitted the words "for a Company" and insisted upon a public purpose. The absence from the notification under S. 4 aforesaid of those words, namely, for a public purpose, are fatal to the proceedings.The purpose of the notification under S. 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary digging or boring into the subsoil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under S. 6 that a firm declaration has to be made by Government that land with proper description and so as to be identifiable is needed for a public purpose or for a Company. What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S. 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a Company and the purpose has to be investigated under S. 5A or S. 40 necessarily after the notification under S. 4 of the Act. 13. The other attack under Act 19(1) (f) of the Constitution is equally futile in view of the decision of this Court in 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ) and 1957 SCR 721 : ( (S) AIR 1957 SC 521 ). Nothing was said with reference to the provisions of Art. 14 of the Constitution, though that Article has been referred to in the grounds in support of the writ petition. | 0[ds]Therefore even if the Act contemplated acquisition for a company which may or may not be for a public purpose, it would be saved by Art. 31(5) (a) as an existing lawFurther, though it may appear on the words of the Act contained in Part II, which contains the operative portions of the proceedings leading up to acquisition by the Collector that acquisition for a Company may or may not be for a public purpose, the provisions of Part VII make it clear that the appropriate Government cannot permit the bringing into operation in effective machinery of the Act unless it is satisfied as aforesaid, namely that the purpose of acquisition is to enable the Company to erect dwelling houses for workmen employed by it or for the provision of amenities directly connected with the Company or that the land is needed for construction of some work of public utility.These requirements indicate that the acquisition for a Company also is in substance for a public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses, and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility do not serve a public purpose.It is not necessary for the purposes of this case to go into the question whether acquisition for a Company, even apart from the provisions of S. 40 will be for a public purpose, or justifiable under the provisions of the Act, even on the assumption that it will not serve a public purpose. The facts of the present case have not been investigated, as this Court was moved when only a notification under S. 4 of the Act had been issued; and the purpose of the acquisition in question was still at the enquiry stage. By S. 38A, which was inserted by the amending Act of 1933, it has been made clear that an industrial concern not being a Company, ordinarily employing not less than 100 workmen, may also take the advantage of land acquisition proceedings if the purpose of the acquisition is the same as is contemplated by S. 40 in respect of CompaniesIn an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to errect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We are not in possession of all the relevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respondents that the application is premature is not wholly devoid of meritThe provisions of Art. 31(2) make it clear beyond all controversy that in order that property may be compulsorily acquired, the acquisition must be for a public purpose and by authority of law. But Art. 31(5) (a) lays down that nothing in cl. (2) shall affect the provisions of any existing law other than a law to which the provisions of cl. (6) applies (and the Act is obviously a law to which the provisions of cl. (6) do not apply).Therefore even if the Act contemplated acquisition for a company which may or may not be for a public purpose, it would be saved by Art. 31(5) (a) as an existinglaw.(See Lilavati Bai v. State of Bombay, 1957 SCR 721 : ( (S) AIR 1957 SC 521 )).Further, though it may appear on the words of the Act contained in Part II, which contains the operative portions of the proceedings leading up to acquisition by the Collector that acquisition for a Company may or may not be for a public purpose, the provisions of Part VII make it clear that the appropriate Government cannot permit the bringing into operation in effective machinery of the Act unless it is satisfied as aforesaid, namely that the purpose of acquisition is to enable the Company to erect dwelling houses for workmen employed by it or for the provision of amenities directly connected with the Company or that the land is needed for construction of some work of public utility.These requirements indicate that the acquisition for a Company also is in substance for a public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses, and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility do not serve a public purpose.It is not necessary for the purposes of this case to go into the question whether acquisition for a Company, even apart from the provisions of S. 40 will be for a public purpose, or justifiable under the provisions of the Act, even on the assumption that it will not serve a public purpose. The facts of the present case have not been investigated, as this Court was moved when only a notification under S. 4 of the Act had been issued; and the purpose of the acquisition in question was still at the enquiry stage. By S. 38A, which was inserted by the amending Act of 1933, it has been made clear that an industrial concern not being a Company, ordinarily employing not less than 100 workmen, may also take the advantage of land acquisition proceedings if the purpose of the acquisition is the same as is contemplated by S. 40 in respect of. It has been recognised by this Court in the case of State of Bombay v. Bhanji Munji, 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ), that providing housing accommodation to the homeless is a public purpose.In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to errect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We are not in possession of all the relevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respondents that the application is premature is not wholly devoid of meritIn our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that statement should find a place in the notification actually issued. The requirements of the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII, as already indicatedThe absence from the notification under S. 4 aforesaid of those words, namely, for a public purpose, are fatal to the proceedings.The purpose of the notification under S. 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary digging or boring into the subsoil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under S. 6 that a firm declaration has to be made by Government that land with proper description and so as to be identifiable is needed for a public purpose or for a Company. What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S. 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a Company and the purpose has to be investigated under S. 5A or S. 40 necessarily after the notification under S. 4 of the Act13. The other attack under Act 19(1) (f) of the Constitution is equally futile in view of the decision of this Court in 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ) and 1957 SCR 721 : ( (S) AIR 1957 SC 521 ). Nothing was said with reference to the provisions of Art. 14 of the Constitution, though that Article has been referred to in the grounds in support of the writ petition. | 0 | 4,356 | 1,632 | ### Instruction:
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### Input:
by this Court in the case of State of Bombay v. Bhanji Munji, 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ), that providing housing accommodation to the homeless is a public purpose. In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to errect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We are not in possession of all the relevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respondents that the application is premature is not wholly devoid of merit. 11. But the main attack on the constitutionality of the proceedings in question was based upon the notification under S. 4, which is in these terms :-"Ex. "A". NOTIFICATION REVENUE DEPARTMENT. Sachivalaya, Bombay 3rd April, 1959. LAND ACQUISITION ACT, 1894 (I of 1894) District Thana, No. LTH, 15-59/42051-H-Whereas, it appears to the Government of Bombay that the lands specified in the schedule hereto are likely to be needed for the purposes of the company, viz., for factory buildings, etc., of M/s. Mukund Iron and Steel Works Limited, Bombay; It is hereby notified under the provisions of section 4 of the Land Acquisition Act, 1894 (I of 1894), that the said lands are likely to be needed for the purpose specified above. All persons interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or other persons employed upon the said lands for the purpose of the said acquisition. Any contracts for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise, or any outlay or improvements made therein, without the sanction of the Collector after the date of this notification will, under section 24 (seventhly) of the said Act, be disregarded by the officer assessing compensation for such parts of the said lands as may be finally acquired. If the Government of Bombay is satisfied that the said lands are needed for the aforesaid purpose, a final notification to that effect under S. 6 of the said Act will be published in the Bombay Government Gazette in due course. If the acquisition is abandoned wholly or in part, the fact will be duly notified in the Bombay Government Gazette. Under clause (c) of section 3 of the Land Acquisition Act, 1894, the Government of Bombay is pleased to appoint the Special Land Acquisition Officer. Thana, to perform the function of a Collector under section 5-A of the said Act in respect of the said lands". It is argued that in terms the notification does not state that the land sought to be acquired was needed for a public purpose. In our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that statement should find a place in the notification actually issued. The requirements of the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII, as already indicated.See in this connection 1955-1 SCR 777 ; ( (S) AIR 1955 SC 41 ). In that case the question was whether the Bombay Land Requisition Act (Bombay Act XXXIII of 1948) was invalid inasmuch as the purpose for the requisition was not in express terms stated to be a public purpose. This Court laid it down that the Statute was not invalid for that reason provided that from the whole tenor and intendment of the Act it could be gathered that the property was acquired either for the purpose of the State or for any public purpose. 12. It is further argued that S. 4(1) of the Act had deliberately omitted the words "for a Company" and insisted upon a public purpose. The absence from the notification under S. 4 aforesaid of those words, namely, for a public purpose, are fatal to the proceedings.The purpose of the notification under S. 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary digging or boring into the subsoil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under S. 6 that a firm declaration has to be made by Government that land with proper description and so as to be identifiable is needed for a public purpose or for a Company. What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S. 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a Company and the purpose has to be investigated under S. 5A or S. 40 necessarily after the notification under S. 4 of the Act. 13. The other attack under Act 19(1) (f) of the Constitution is equally futile in view of the decision of this Court in 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ) and 1957 SCR 721 : ( (S) AIR 1957 SC 521 ). Nothing was said with reference to the provisions of Art. 14 of the Constitution, though that Article has been referred to in the grounds in support of the writ petition.
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### Explanation:
on behalf of the respondents that the application is premature is not wholly devoid of meritThe provisions of Art. 31(2) make it clear beyond all controversy that in order that property may be compulsorily acquired, the acquisition must be for a public purpose and by authority of law. But Art. 31(5) (a) lays down that nothing in cl. (2) shall affect the provisions of any existing law other than a law to which the provisions of cl. (6) applies (and the Act is obviously a law to which the provisions of cl. (6) do not apply).Therefore even if the Act contemplated acquisition for a company which may or may not be for a public purpose, it would be saved by Art. 31(5) (a) as an existinglaw.(See Lilavati Bai v. State of Bombay, 1957 SCR 721 : ( (S) AIR 1957 SC 521 )).Further, though it may appear on the words of the Act contained in Part II, which contains the operative portions of the proceedings leading up to acquisition by the Collector that acquisition for a Company may or may not be for a public purpose, the provisions of Part VII make it clear that the appropriate Government cannot permit the bringing into operation in effective machinery of the Act unless it is satisfied as aforesaid, namely that the purpose of acquisition is to enable the Company to erect dwelling houses for workmen employed by it or for the provision of amenities directly connected with the Company or that the land is needed for construction of some work of public utility.These requirements indicate that the acquisition for a Company also is in substance for a public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses, and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility do not serve a public purpose.It is not necessary for the purposes of this case to go into the question whether acquisition for a Company, even apart from the provisions of S. 40 will be for a public purpose, or justifiable under the provisions of the Act, even on the assumption that it will not serve a public purpose. The facts of the present case have not been investigated, as this Court was moved when only a notification under S. 4 of the Act had been issued; and the purpose of the acquisition in question was still at the enquiry stage. By S. 38A, which was inserted by the amending Act of 1933, it has been made clear that an industrial concern not being a Company, ordinarily employing not less than 100 workmen, may also take the advantage of land acquisition proceedings if the purpose of the acquisition is the same as is contemplated by S. 40 in respect of. It has been recognised by this Court in the case of State of Bombay v. Bhanji Munji, 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ), that providing housing accommodation to the homeless is a public purpose.In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a large section of the community is concerned, its welfare is a matter of public concern. Similarly, if a Company is generous enough to errect a hospital or a public reading room and library or an educational institution open to the public, it cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We are not in possession of all the relevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respondents that the application is premature is not wholly devoid of meritIn our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that statement should find a place in the notification actually issued. The requirements of the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII, as already indicatedThe absence from the notification under S. 4 aforesaid of those words, namely, for a public purpose, are fatal to the proceedings.The purpose of the notification under S. 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary digging or boring into the subsoil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under S. 6 that a firm declaration has to be made by Government that land with proper description and so as to be identifiable is needed for a public purpose or for a Company. What was a mere proposal under S. 4 becomes the subject matter of a definite proceeding for acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S. 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a Company and the purpose has to be investigated under S. 5A or S. 40 necessarily after the notification under S. 4 of the Act13. The other attack under Act 19(1) (f) of the Constitution is equally futile in view of the decision of this Court in 1955-1 SCR 777 : ( (S) AIR 1955 SC 41 ) and 1957 SCR 721 : ( (S) AIR 1957 SC 521 ). Nothing was said with reference to the provisions of Art. 14 of the Constitution, though that Article has been referred to in the grounds in support of the writ petition.
|
Rajahmundry Electric Supplycorporation Ltd Vs. A. Nageswara Rao And Others: | 600 (F), and the question must now be taken to be settled by the pronouncement of the Judicial Committee in Loch v. John Blackwood Ld. (1924) A C 783 at p. 790 (G), where after an elaborate review of the authorities, Lord Shaw observed that,"...it is in accordance with the laws of England, of Scotland and of Ireland that the ejusdem generis doctrine (as supposed to have been laid by Lord Cottenham) does not operate so as to confine the cases of winding up to those strictly analogous to the instances of the first five sub-sections of S. 129 of the British Act".The law is thus sated in Halsburys Laws of England Third Edition, Volume 6, page 534, para 1035 :"The words, just and equitable in the enactment specifying the grounds for winding up by the Court are not to be read as being ejusdem generis with the preceding words of the enactment".When once it is held that the words "just and equitable" are not be construed ejusdem generis then whether mismanagement of directors is a ground for a winding-up order under S. 162 (vi) becomes a question to be decided on the facts of each case.Where nothing more is established than that the directors have misappropriated the funds of the Company, an order for winding up would not be just or equitable, because it is a sound concern, such an order must operate harshly on the rights of the shareholders.But if, in addition to such misconduct, circumstances exist which render it desirable in the interests of the shareholders that the Company should be wound up, there is nothing in S. 162 (vi) which bars the jurisdiction of the Court to make such an order. (1924) AC 783 (G) was itself a case in which the order for winding up was asked for on the ground of mismanagement by the directors, and the law was thus stated at page 788 :"It is undoubtedly true that at the foundation of applications for winding up, on the just and equitable rule, there must lie a justifiable lack of confidence in the conduct and management of the companys affairs. But this lack of confidence must be grounded on conduct of the directors, not in regard to their private life or affairs, but in regard to the companys business.Furthermore the lack of confidence must spring not from dissatisfaction at being out-voted on the business affairs or on what is called the domestic policy of the company. On the other hand, wherever the lack of confidence is rested on a lack of probity in the conduct of the companys affairs, then the former is justified by the latter, and it is under the statute just and equitable that the company be wound up".9. Now, the facts as found by the courts below are that the Vice-Chairman grossly mismanaged the affairs of the Company, and had drawn considerable amounts for his personal purposes, that arrears due to the Government for supply of electric energy as on 25-6-1955 was Rs. 3,10,175-3-6, that large collections had to be made, that the machinery was in a state of disrepair, that by reason of death and other causes the directorate had become greatly attenuated and "a powerful local junta was ruling the roost", and that the Shareholders outside the group of the Chairman were apathetic and powerless to set matters right. On these findings, the courts below had the power to direct the winding up of the Company under S. 162(vi), and no grounds have been shown for our interfering with their order.10. It was urged on behalf of the appellant that as the Vice-Chairman who was responsible for the mismanagement had been removed, and the present management was taking steps to set things right and to put an end to the matters complained of there was no need to take action under S. 153-C.But the findings of the Courts below are that the Chairman himself either actively cooperated with the Vice-Chairman in various acts of misconduct and maladministration or that he had at any rate, on his own showing abdicated the entire management to him, and that as the affairs of the Company were in a state of confusion and embarrassment , it was necessary to take action under S. 153-C. We are of opinion that the learned Judges were justified on the above findings in passing the order which they did.11. It was also contended that the appointment of administrators in supersession of the directorate and vesting power in them to manage the Company was an interference with its internal management.It is no doubt the law that Courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the Articles of Association.But this rule can by its very nature apply only when the company is a running concern, and it is sought to interfere with its affairs as a running concern. But when an application is presented to wind up a company, its very object is to put an end to its existence, and for that purpose to terminate is management in accordance with the Articles of Association and to vest it in the Court. In that situation, there is no scope for the rule that the Court should not interfere in matters of internal management.And where accordingly a case had been made out for an order for winding up under S. 162, the appointment of administrators under S. 153-C cannot be attacked on the ground that it is an interference with the internal management of the affairs of the company. If a Liquidator can be appointed to manage the affairs of a company when an order for winding up is made under S. 162, administrators could also be appointed to manage its affairs, when action is taken under S. 153-C. This contention must accordingly be rejected. | 0[ds]Though the objection was raised in the written statement, the respondents did not press the same at the trial, and the question was never argued before the trial Judge.The learned Judges before whom this contention was raised on appeal declined to entertain it, as it was not pressed in the trial court, and there are no grounds for permitting the appellant to raise it in this appeal. Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits. Excluding the names of the 13 persons who are stated to be not members and the two are stated to have singed twice, the number of members who had given consent to the institution of the application was 65.The number of members of the Company is stated to beIf, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in S. 153-C, sub-cl. (3) (a) (i). But it is argued that as 13 of the members who had consented to the filing of the application had, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable.We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. In our opinion, the withdrawal of consent by 13 of the members, even, if true, cannot affect the right of the applicant to proceed with the application or the jurisdiction of the court to dispose of it on its own merits.6. It was next contended that the allegations in the application were not sufficient to support a winding up order under S. 162, and that, therefore, no action could be taken under S. 153-C.We agree with the appellant that before taking action under S. 153, C, the Court must be satisfied that circumstances exist on which an order for winding up could be made under S. 162.The true scope of S. 153-C is that whereas prior to its enactment the Court had no option but to pass an order for winding up when the conditions mentioned in S. 162, were satisfied, it could now in exercise of the powers conferred by that section make an order for its management by the Court with a view to its being ultimately salvaged. Where, therefore, the facts proved do not make out a case for winding up under S. 162, no order could be passed under S. 153-C.It was also contended that the appointment of administrators in supersession of the directorate and vesting power in them to manage the Company was an interference with its internal management.It is no doubt the law that Courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the Articles of Association. | 0 | 3,142 | 604 | ### 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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600 (F), and the question must now be taken to be settled by the pronouncement of the Judicial Committee in Loch v. John Blackwood Ld. (1924) A C 783 at p. 790 (G), where after an elaborate review of the authorities, Lord Shaw observed that,"...it is in accordance with the laws of England, of Scotland and of Ireland that the ejusdem generis doctrine (as supposed to have been laid by Lord Cottenham) does not operate so as to confine the cases of winding up to those strictly analogous to the instances of the first five sub-sections of S. 129 of the British Act".The law is thus sated in Halsburys Laws of England Third Edition, Volume 6, page 534, para 1035 :"The words, just and equitable in the enactment specifying the grounds for winding up by the Court are not to be read as being ejusdem generis with the preceding words of the enactment".When once it is held that the words "just and equitable" are not be construed ejusdem generis then whether mismanagement of directors is a ground for a winding-up order under S. 162 (vi) becomes a question to be decided on the facts of each case.Where nothing more is established than that the directors have misappropriated the funds of the Company, an order for winding up would not be just or equitable, because it is a sound concern, such an order must operate harshly on the rights of the shareholders.But if, in addition to such misconduct, circumstances exist which render it desirable in the interests of the shareholders that the Company should be wound up, there is nothing in S. 162 (vi) which bars the jurisdiction of the Court to make such an order. (1924) AC 783 (G) was itself a case in which the order for winding up was asked for on the ground of mismanagement by the directors, and the law was thus stated at page 788 :"It is undoubtedly true that at the foundation of applications for winding up, on the just and equitable rule, there must lie a justifiable lack of confidence in the conduct and management of the companys affairs. But this lack of confidence must be grounded on conduct of the directors, not in regard to their private life or affairs, but in regard to the companys business.Furthermore the lack of confidence must spring not from dissatisfaction at being out-voted on the business affairs or on what is called the domestic policy of the company. On the other hand, wherever the lack of confidence is rested on a lack of probity in the conduct of the companys affairs, then the former is justified by the latter, and it is under the statute just and equitable that the company be wound up".9. Now, the facts as found by the courts below are that the Vice-Chairman grossly mismanaged the affairs of the Company, and had drawn considerable amounts for his personal purposes, that arrears due to the Government for supply of electric energy as on 25-6-1955 was Rs. 3,10,175-3-6, that large collections had to be made, that the machinery was in a state of disrepair, that by reason of death and other causes the directorate had become greatly attenuated and "a powerful local junta was ruling the roost", and that the Shareholders outside the group of the Chairman were apathetic and powerless to set matters right. On these findings, the courts below had the power to direct the winding up of the Company under S. 162(vi), and no grounds have been shown for our interfering with their order.10. It was urged on behalf of the appellant that as the Vice-Chairman who was responsible for the mismanagement had been removed, and the present management was taking steps to set things right and to put an end to the matters complained of there was no need to take action under S. 153-C.But the findings of the Courts below are that the Chairman himself either actively cooperated with the Vice-Chairman in various acts of misconduct and maladministration or that he had at any rate, on his own showing abdicated the entire management to him, and that as the affairs of the Company were in a state of confusion and embarrassment , it was necessary to take action under S. 153-C. We are of opinion that the learned Judges were justified on the above findings in passing the order which they did.11. It was also contended that the appointment of administrators in supersession of the directorate and vesting power in them to manage the Company was an interference with its internal management.It is no doubt the law that Courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the Articles of Association.But this rule can by its very nature apply only when the company is a running concern, and it is sought to interfere with its affairs as a running concern. But when an application is presented to wind up a company, its very object is to put an end to its existence, and for that purpose to terminate is management in accordance with the Articles of Association and to vest it in the Court. In that situation, there is no scope for the rule that the Court should not interfere in matters of internal management.And where accordingly a case had been made out for an order for winding up under S. 162, the appointment of administrators under S. 153-C cannot be attacked on the ground that it is an interference with the internal management of the affairs of the company. If a Liquidator can be appointed to manage the affairs of a company when an order for winding up is made under S. 162, administrators could also be appointed to manage its affairs, when action is taken under S. 153-C. This contention must accordingly be rejected.
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Though the objection was raised in the written statement, the respondents did not press the same at the trial, and the question was never argued before the trial Judge.The learned Judges before whom this contention was raised on appeal declined to entertain it, as it was not pressed in the trial court, and there are no grounds for permitting the appellant to raise it in this appeal. Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits. Excluding the names of the 13 persons who are stated to be not members and the two are stated to have singed twice, the number of members who had given consent to the institution of the application was 65.The number of members of the Company is stated to beIf, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in S. 153-C, sub-cl. (3) (a) (i). But it is argued that as 13 of the members who had consented to the filing of the application had, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable.We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. In our opinion, the withdrawal of consent by 13 of the members, even, if true, cannot affect the right of the applicant to proceed with the application or the jurisdiction of the court to dispose of it on its own merits.6. It was next contended that the allegations in the application were not sufficient to support a winding up order under S. 162, and that, therefore, no action could be taken under S. 153-C.We agree with the appellant that before taking action under S. 153, C, the Court must be satisfied that circumstances exist on which an order for winding up could be made under S. 162.The true scope of S. 153-C is that whereas prior to its enactment the Court had no option but to pass an order for winding up when the conditions mentioned in S. 162, were satisfied, it could now in exercise of the powers conferred by that section make an order for its management by the Court with a view to its being ultimately salvaged. Where, therefore, the facts proved do not make out a case for winding up under S. 162, no order could be passed under S. 153-C.It was also contended that the appointment of administrators in supersession of the directorate and vesting power in them to manage the Company was an interference with its internal management.It is no doubt the law that Courts will not, in general, intervene at the instance of shareholders in matters of internal administration, and will not interfere with the management of a company by its directors, so long as they are acting within the power conferred on them under the Articles of Association.
|
Maharajadhiraj Sir Kameshwar Singh Vs. Commissioner of Income Tax, Bihar & Orissa | the Tribunal to state a case inter alia on the said questions of law set out herein above.8. The Tribunal accordingly drew up a statement of case and submitted it to the High Court, from which the following facts do appear:BANKURA FOREST (WEST BENGAL)The forest in this area in block is leased out by auction on short terms for lump sums. The lessee can cut down and remove all Sal trees but those which are more than three feet in girth above three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees; cut stumps not higher than five inches over ground so that new shoots may grow in rains and in time mature trees are produced; refrain from entering the forests during rains when new shoots come out; and guard the forests from trespassing by men and cattle.On the conclusion of the stipulated period the 1easee loses all rights, even the right to enter the land.KHARAGPUR FOREST (BIHAR)9. The income from Kharagpur forest comes from three sources viz., (i) Bamboos, (ii) Sabai grass and (iii) timber.10. The following passage from the order of the Tribunal records the findings in regard theretoAll these are grown wild and spontaneously. In 1944 a working plan was formulated for felling mature bamboo trees in rotation from sub-divided coups. It cannot be said that any human agency was responsible for either plantation or the growth of the bamboos. The position with regard to Sabai grass is more or less the same. With regard to timber trees, we find that there was a scheme by which the Sal and ebony trees which grow in the forests were conserved by allowing each tree a circle of 15 feet by clearing the jungle of other trees which fall within this area, thus leaving sufficient space for the growth. No doubt wells were sunk but they were not for the purpose of watering the trees but were for supplying the drinking water for the cartmen and bullocks which go into the forest to bring out the timber............ It is alleged that coppice work has also undertaken near about 1883 but the only evidence is a Government Annual Administration Report dated 5-10-1882 of forest administration in suggesting that private owners should take up growth of coppice forest for being worked in short rotation for fuel supply. There is also a letter No. 170 dated 14-4-1883 of the Commissioner of Bhagalpur Division addressed to the, Manager, Darbhanga Raj regarding preservation of Sal saplings in the forests of neighbouring Zamindars (Gidhour and Banaily Raj) but only in the 1994 correspondence there is evidence to show that coppice coupes of Sal trees on the higher elevation of the rocky hills were proposed to be worked in 7 years ........ From this it is clear that there was no human agency with reference to the production of plant from the soil although there was some element of human activity with reference to assisting the growth of some of the trees.11. The High Court heard the Reference and delivered one common judgment as the questions involved therein were common and answered the referred questions in the negative and against the appellant. The appellant thereupon applied for and obtained the requisite certificates of fitness for appeal to this Court as aforesaid and hence these appeals.12. The High Court decided the referred questions against the appellant mainly on the ground that there was no material on which to hold that there was any expenditure of human skill and labour upon the land so as to constitute the income derived therefrom agricultural income within the meaning of its definition in S.2 (1) of the Act. The conservation of the forest by allowing each Sal and Ebony tree a circle of 15 feet and cutting down of the trees and jungles which fell within that circle leaving sufficient space for growth and the employment of conservancy staff maintained to look after the forest were not considered by the Court sufficient in themselves to constitute any expenditure of human skill and labour upon the land so as to fall within the dictum of the Privy Council in Mustafa Ali Khan v. Commissioner of Income-tax, 1948-16 I.T.R. 330 : (A.I.R. 1949 P.C. 13) (A).13. We need not repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. They have been enunciated by us in the judgment just delivered in Commissioner of Income-tax, West Bengal v. Raja Benoy Kumar Sahas Roy, Civil Appeal No.165 of 1954, D/-23-5-1957 (S.C.) (B). Suffice it to say that in regard to the forest trees of spontaneous growth, which grow on the soil unaided by any human skill and labour and where no basic operations in agriculture are performed upon the soil itself by the assessee, there is no cultivation of the soil at all.The only operations which are performed by the assessee are subsequent operations, which though in the nature of forestry operations, are mainly performed for the conservation and growth of the forest trees which have sprung into existence by forces of nature rather than by expenditure of any human skill and labour on the land itself. These subsequent operations though they may have the effect of nursing and fostering the growth of such forest trees have nothing in common with the basic operations which are the efficient cause of raising these products from the soil and cannot constitute agricultural operations unless they form part and parcel of and integrate themselves with such basic operations. The operations which were performed by the assessee in the case before us had nothing in common with the basic agricultural operations and did not have the effect of converting the forest produce which was of spontaneous growth into produce raised upon the land by agriculture within the connotation of that term as laid down by us in the decision referred to above. | 0[ds]13. We need not repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. They have been enunciated by us in the judgment just delivered in Commissioner ofWest Bengal v. Raja Benoy Kumar Sahas Roy, Civil Appeal No.165 of 1954,(S.C.) (B). Suffice it to say that in regard to the forest trees of spontaneous growth, which grow on the soil unaided by any human skill and labour and where no basic operations in agriculture are performed upon the soil itself by the assessee, there is no cultivation of the soil at all.The only operations which are performed by the assessee are subsequent operations, which though in the nature of forestry operations, are mainly performed for the conservation and growth of the forest trees which have sprung into existence by forces of nature rather than by expenditure of any human skill and labour on the land itself. These subsequent operations though they may have the effect of nursing and fostering the growth of such forest trees have nothing in common with the basic operations which are the efficient cause of raising these products from the soil and cannot constitute agricultural operations unless they form part and parcel of and integrate themselves with such basic operations. The operations which were performed by the assessee in the case before us had nothing in common with the basic agricultural operations and did not have the effect of converting the forest produce which was of spontaneous growth into produce raised upon the land by agriculture within the connotation of that term as laid down by us in the decision referred to above. | 0 | 1,729 | 307 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the Tribunal to state a case inter alia on the said questions of law set out herein above.8. The Tribunal accordingly drew up a statement of case and submitted it to the High Court, from which the following facts do appear:BANKURA FOREST (WEST BENGAL)The forest in this area in block is leased out by auction on short terms for lump sums. The lessee can cut down and remove all Sal trees but those which are more than three feet in girth above three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees; cut stumps not higher than five inches over ground so that new shoots may grow in rains and in time mature trees are produced; refrain from entering the forests during rains when new shoots come out; and guard the forests from trespassing by men and cattle.On the conclusion of the stipulated period the 1easee loses all rights, even the right to enter the land.KHARAGPUR FOREST (BIHAR)9. The income from Kharagpur forest comes from three sources viz., (i) Bamboos, (ii) Sabai grass and (iii) timber.10. The following passage from the order of the Tribunal records the findings in regard theretoAll these are grown wild and spontaneously. In 1944 a working plan was formulated for felling mature bamboo trees in rotation from sub-divided coups. It cannot be said that any human agency was responsible for either plantation or the growth of the bamboos. The position with regard to Sabai grass is more or less the same. With regard to timber trees, we find that there was a scheme by which the Sal and ebony trees which grow in the forests were conserved by allowing each tree a circle of 15 feet by clearing the jungle of other trees which fall within this area, thus leaving sufficient space for the growth. No doubt wells were sunk but they were not for the purpose of watering the trees but were for supplying the drinking water for the cartmen and bullocks which go into the forest to bring out the timber............ It is alleged that coppice work has also undertaken near about 1883 but the only evidence is a Government Annual Administration Report dated 5-10-1882 of forest administration in suggesting that private owners should take up growth of coppice forest for being worked in short rotation for fuel supply. There is also a letter No. 170 dated 14-4-1883 of the Commissioner of Bhagalpur Division addressed to the, Manager, Darbhanga Raj regarding preservation of Sal saplings in the forests of neighbouring Zamindars (Gidhour and Banaily Raj) but only in the 1994 correspondence there is evidence to show that coppice coupes of Sal trees on the higher elevation of the rocky hills were proposed to be worked in 7 years ........ From this it is clear that there was no human agency with reference to the production of plant from the soil although there was some element of human activity with reference to assisting the growth of some of the trees.11. The High Court heard the Reference and delivered one common judgment as the questions involved therein were common and answered the referred questions in the negative and against the appellant. The appellant thereupon applied for and obtained the requisite certificates of fitness for appeal to this Court as aforesaid and hence these appeals.12. The High Court decided the referred questions against the appellant mainly on the ground that there was no material on which to hold that there was any expenditure of human skill and labour upon the land so as to constitute the income derived therefrom agricultural income within the meaning of its definition in S.2 (1) of the Act. The conservation of the forest by allowing each Sal and Ebony tree a circle of 15 feet and cutting down of the trees and jungles which fell within that circle leaving sufficient space for growth and the employment of conservancy staff maintained to look after the forest were not considered by the Court sufficient in themselves to constitute any expenditure of human skill and labour upon the land so as to fall within the dictum of the Privy Council in Mustafa Ali Khan v. Commissioner of Income-tax, 1948-16 I.T.R. 330 : (A.I.R. 1949 P.C. 13) (A).13. We need not repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. They have been enunciated by us in the judgment just delivered in Commissioner of Income-tax, West Bengal v. Raja Benoy Kumar Sahas Roy, Civil Appeal No.165 of 1954, D/-23-5-1957 (S.C.) (B). Suffice it to say that in regard to the forest trees of spontaneous growth, which grow on the soil unaided by any human skill and labour and where no basic operations in agriculture are performed upon the soil itself by the assessee, there is no cultivation of the soil at all.The only operations which are performed by the assessee are subsequent operations, which though in the nature of forestry operations, are mainly performed for the conservation and growth of the forest trees which have sprung into existence by forces of nature rather than by expenditure of any human skill and labour on the land itself. These subsequent operations though they may have the effect of nursing and fostering the growth of such forest trees have nothing in common with the basic operations which are the efficient cause of raising these products from the soil and cannot constitute agricultural operations unless they form part and parcel of and integrate themselves with such basic operations. The operations which were performed by the assessee in the case before us had nothing in common with the basic agricultural operations and did not have the effect of converting the forest produce which was of spontaneous growth into produce raised upon the land by agriculture within the connotation of that term as laid down by us in the decision referred to above.
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13. We need not repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. They have been enunciated by us in the judgment just delivered in Commissioner ofWest Bengal v. Raja Benoy Kumar Sahas Roy, Civil Appeal No.165 of 1954,(S.C.) (B). Suffice it to say that in regard to the forest trees of spontaneous growth, which grow on the soil unaided by any human skill and labour and where no basic operations in agriculture are performed upon the soil itself by the assessee, there is no cultivation of the soil at all.The only operations which are performed by the assessee are subsequent operations, which though in the nature of forestry operations, are mainly performed for the conservation and growth of the forest trees which have sprung into existence by forces of nature rather than by expenditure of any human skill and labour on the land itself. These subsequent operations though they may have the effect of nursing and fostering the growth of such forest trees have nothing in common with the basic operations which are the efficient cause of raising these products from the soil and cannot constitute agricultural operations unless they form part and parcel of and integrate themselves with such basic operations. The operations which were performed by the assessee in the case before us had nothing in common with the basic agricultural operations and did not have the effect of converting the forest produce which was of spontaneous growth into produce raised upon the land by agriculture within the connotation of that term as laid down by us in the decision referred to above.
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Union of India Vs. Bhagwati Prasad (D) & Others | in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or three is no defect in the vehicle but the accident is only due to the sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) that a claim for compensation on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 110, 110-A, which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in sub-section (1) of Section 110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in Section 110-A read with sub-section (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect. "It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided. 4. | 0[ds]We are in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or three is no defect in the vehicle but the accident is only due to the sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whetheran application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors,if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) that a claim for compensation on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 110,which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in(1) of Section 110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in Sectionion (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect."It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided. | 0 | 2,399 | 1,051 | ### Instruction:
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in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or three is no defect in the vehicle but the accident is only due to the sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) that a claim for compensation on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 110, 110-A, which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in sub-section (1) of Section 110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in Section 110-A read with sub-section (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect. "It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided. 4.
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We are in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that if it is ultimately found that there is no negligence on the part of the driver of the vehicle or three is no defect in the vehicle but the accident is only due to the sole negligence of other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle the claim would not be maintainable before the Tribunal. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhney, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whetheran application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors,if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) that a claim for compensation on account of the accident arising out of the use of a Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 110,which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in(1) of Section 110 unequivocally indicates that Claims Tribunal would have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died could make application for compensation before the Claims Tribunal not only against the owner, driver or insurer of the Motor Vehicle but also against the Railway Administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor connected with the accident who was responsible and not the owner or driver of the Motor Vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially. In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in Sectionion (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunals jurisdiction cannot be held to be ousted on a finding being arrived at at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect."It is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided.
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Narasingh Charan Mohanty Vs. Surendra Mohanty | name of "Orissa Relief and Rehabilitation Committee orin my nameso that the work can be started immediately. (emphasis supplied) Even so the monies never came into the hands of Dwivedi and his evidence as P. W. 13 corroborates this statement. The respondent also has not contested this position. But as Dwivedi had taken part in collecting the monies and as an important member of his party, on whose appeals monies for relief amounts were being paid, the members of the public had a right to call on him to have an account rendered if there was controversy in respect of its expenditure. 34. Such a controversy was raised in the Prajatantra dated June 4, 1970 in which the Chief Editor referred to this matter under the heading "Mismanagement in Utkal Relief Committee. In that article it was stated that in the audit report for the year 1968-69 it was shown that no account had been kept though a total sum of Rs. 36,657-05 was given as an advance to different persons It was also stated that 24,960/- was given to Dwivedi, M. P., out of Rs. 35,000/- granted by the Bihar Relief Committee. Though it was shown as an advance, however there was no mention as to how this amount was utilised nor was any account kept by the Relief Committee as was pointed out in the audit report. To these allegations Dwivedi replied by his letter dated June 13, 1970 (Ext. 5) that he did not know why it was written as an advance by the Relief Committee. It was not an advance and there was no question of submitting detailed accounts of it to the Utkal Relief Committee. He further stated:"Last year, when I was visiting the flood affected area of Luna Karandia at Cuttack District, the school buildings were damaged by the floods just after the cyclone and the villagers were not in a position to rebuild them. There was little hope for sanction of much government aid for this purpose. By seeing this I made a special appeal to different relief Committees and some respectable persons to help for repairing of these schools. On the consequence of my appeal some donors sent money and the Bihar Relief Committee sent Rs. 25,000/- for me through the Utkal Relief Committee. They have given me the balance amount after deducting Rs. 40/- towards the Bank Commission. That amount along with other amounts which were received were given as relief for repairing the school, houses of this area of Patkura and its surrounding areas. The work has been done through a Committee and till now the relief work is going on. The detailed description of the accounts shall be sent to the donors after the completion of work. In this letter also Dwivedi claims that it was as a consequence of his appeal that some donors sent money to him and that he would send the detailed accounts to the donors. Notwithstanding this letter one Saroj Mohanti and some others wrote Ext. 3 as published in the Prajatantra daily dated September 20, 1970, in which it was said as follows:"After the publication of the audit report of Orissa Relief Committee, no clarification has yet been published by the Relief Committee. Only Sri Surendra Dwivedi has admitted that he has taken Rs. 25,000/- which he has arranged from Bihar Relief Committee. Besides this amount he has also declared that he has arranged some more money from other sources also. We have heard that he has collected more than one lac of rupees for relief purposes. According to Dwivedi he has collected these amounts for the repairing of school buildings. Sri Dwivedi had also requested the Prime Minister for help. Instead of giving money to Sri Dwivedi the Prime Minister sent Rs. 25,000/- to the Chief Ministers Relief Fund. Sri Dwivedi tried to spend this amount himself. But the Chief Minister did not agree with it and spent the amount through the Department. Therefore, this amount is different. Sri Dwivedi should furnish the accounts of rupees more than one lac which was in his hand. Sri Dwivedi has told that he shall submit the accounts if the donors want it. A great leader like him should know that the donor as well as the donee should know the accounts. Besides, the public also should know it. As far as we know almost no relief has been reached in the Patkura area from Sri Dwivedi. Sri Dwivedi has told that he has collected this money for this area. Our doubts would be cleared if Sri Dwivedi would furnish the full accounts. 35. It is not necessary to go into the controversy further because it is clear that some among the public were demanding accounts for the amounts collected by or through the efforts of Dwivedi and that Dwivedi was trying to explain some item which pertained to him but he said that he would render the accounts to the donors. Those who were concerned in the controversy, however, did not accept this position and demanded that Dwivedi should render the accounts this position and demanded that Dwivedi should render the accounts to the donees who are the public According to the respondent it is this controversy to which he was referring in his speech and had merely asked Dwivedi to render accounts of the monies collected by him. He did not make any imputation against his personal character, nor did he in any manner suggest that there was anything sinister in the conduct of Dwivedi in respect of the monies collected for the relief work. We are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for the cyclone and flood relief purposes was an expression of opinion and related to the public conduct and did not amount to any imputation against the personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions. | 0[ds]15. There is no doubt, and it is not denied, that the respondent was at all material times the editor of the Kalinga in which the offending editorial (Ext. 1) and the news report (Ext. 2) were published on February 15 and 19 respectively. The learned Advocate for the petitioner contends that once this fact is established, then there is a statutory presumption under S. 7 ofthe Press and Registration of Books Act, 1867, which could only be rebutted by the procedure contemplated by the statute itself, namely, Section 8A of that Actn our view, the pleadings clearly indicate the case of the respondent, namely, that he did not publish the impugned editorial, that it was not published by his agent nor did he authorise its publication. It is apparent from the denial that he did not publish the editorial, that some one else must have written and published it and that some one else was not authorised by him, nor did he write it. It is one of the accepted principles that pleadings must contain and contain only a statement in a summary form of material facts on which the party bases his claim or defence and facts which are merely evidence of material facts, though necessary to be proved at the trial, need not be pleaded, but if it is a material fact it should be pleaded. In our view material facts as set out above have been stated, as such any omission to set out in the pleadings the evidence that has been led in this case to establish that the respondent was not concerned with the impugned corrupt practice cannot be looked at with suspicion20. There is also no force in the objection that the letter dated January 15, 1971 does not bear either outward or inward number. When asked why the letter did not bear the number, the respondent replied that ther would be able to say why it was not numbered. It also appears from the evidence of Udaynath Mishra, R. W. 2, the Accountant in the Kalinga Publications that Ext. L is the letter from the Managing Editor, Surendra Mohanty (the respondent) to the Chairman and though he admitted that they maintained the Despatch and Receipt Registers in the Kalinga Publications office, be was not asked to produce those registers to show that office copies also had to be diarized in the registers R.W. l who was asked to produce the letter Ext. L. was even asked whether J. Verma R. W. 3 was acting as editor since January 19, 1971. He said that he was, and that Surdendra Mohanty (the respondent) had not joined the office as editor since thenIf so the enumeration of the duties of J. Verma was being designedly made to cover up the acts of the respondent and the explanation to the contrary is unbelievable. It was also submitted that notwithstanding thise arrangement, the respondent was in fact present on February 14 and February 18, 1971 at Cuttack from which any inference can be drawn that he must have written the editorial dated February 15, 1971 and was responsible for the news report dated February 19, 1971. To a question that Ext. L refers to writing of editorials, editing the paper and the news reports, the respondent replied that the editor is not necessarily required to write the editorial and that is why it was mentioned in Ext. L that J. Verma should write the editorials and should not delegate the power to other junior member of the staff. The reference to editing of the news reports by J. Verma merely emphasised the normal duties, he had to do, which indicated the work load. The respondent was again asked as to what was meant by editing the news reports to which his reply was that news reports received from the accredited correspondents in the Districts were secrtinised by him and that this work should be entrusted to J. Verma and in any case there was no harm in emphasising the total work load that had to be done by J. Verma during his absenceIn our view the mere fact that the respondent was getting his salary during his leave of absence does not indicate that he was not on leave or that he was not permitted to be absent. No doubt he admitted that he had returned to Cuttack on February 14, 1971 very late in the night as he had a programme with Biju Patnaik. This would show that he was not in a position to write the editorial dated February 15, 1971, because the editorials are written and sent each day by the afternoon for being published in the next days issue of the paper. He was again asked whether he had returned to Cuttack either on 16th, 17th or 18th, to which his answer was that he did not recollect whether he had returned to Cuttack either on 16th, or 17th or 18th, but he must have returned on some of these days. Apart from these suggestions, there is nothing to indicate that the respondent knew what the editorial was going to be or that he had consented to its being written. Similarly there is nothing to indicate that he knew about the news report published in the Kalinga dated February 19, 1971, or that he had consented to its publicationWe fail to understand how this admission by the respondent has any significance except perhaps for the respondent to establish positively by documentary evidence that R. W. 3 had written that editorial. If the manuscript had been found it would have been more to corroborate the oral testimony of R. W. 3 who had admitted that he had written that editorial. A suggestion to the contrary that it was not produced as it would show that it was in respondents writing presumes that the manuscript was in existence at the time. There is no evidence of this. Nothing was elicited inn from R. W. 3 to belie the assertion that the editorial was written by him and we cannot say that the High Court was not justified in its conclusion that R. W. 3 was the author of the editorial dated February 15, 1971Whether Biju Patnaik made the speech appealing to the religious symbol at Marshaghai need not for the present concern us. But what we have to consider is whether there are any circumstances from which we can infer that the respondent consented to the speech made by Biju Patnaik or that Biju Patnaik was the agent of the respondentWe do not think that these circumstances justify such an inference Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from mere close friendship or other relationship or political affiliation. As pointed out in D.P. Mishras case, (1971) 3 SCR 257 = (AIR 1971 SC 856 ) however close the relationship, unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsible for all the publications, no consent can be inferred.That Tarangi was in full charge of the publication of the Mahakoshal does not distinguish that case from the facts of this case where R.W. 3 also was in full charge of the Kalinga during the respondents absencen was mostly in respect of the editorial Exhibit1, letter Ext. L and to the respondent being present at Cuttack during the relevant time just before the impugned editorial Ext. 1 and the news report Ext. 2 were published. When once it is established that neither the editorial (Ext. 1) nor the news report (Ext. 2) were published by the respondent or by some one else with his content or that the speech alleged to be made by Biju Patnaik, even if it amounts to corrupt practice, was made without the consent of the respondent, and that Biju Patnaik was not his agent, it is unnecessary to consider the question whether the editorial and the news report as well as the speech of Biju Patnaik did in fact constitute corrupt practice under. (3) of S. 123 of the ActIf the alleged statement in his speech was an imputation against the personal character of Dwivedi then it will have to be further established that the statement was false, the respondent believed it to be false or did not believe it to be true and that it was a statement reasonably calculated to prejudice the prospects of that candidates election. In any case, since we have found that the publication of the speech of the respondent in Ext. 2 has not been made with his consent, that publication, even assuming its contents have been proved, does not constitute a corrupt practice. It now remains to be considered what it is that the respondent in his speech at Marshaghai is alleged to have imputed to Dwivedi on February 15, 1971We have also been taken through the evidence of these witnesses and have come to the conclusion that they have all withe voice repeated identically the same set piece, but were blank, vague and ignorant about the remainder of the speech, its purport, its contents or its effect. Some of them said that they had never told any one of what they heard, some of them were from other villages from which they said they had come to hear because Biju Patnaik was speaking when they were aware that he was going to speak at a place near their villages. Prira Bar Lanka P.W. 4 who deposed on behalf of the petitioner, however, says that he was personally present at the meeting as a correspondent for the Samaj another Oriya daily published from Cuttack. He claims to have published the news report Ext. J which was based on his personal knowledge of what happened at the meeting held at Marshaghai. According to him the respondent never stated anything about the sources from which the moneys might have been received by Dwivedi. He no doubt says that the respondents reference to the relief monies received by Dwivedi from different quarters was occasioned by the fact that Marshaghai area was often affected by floods and cyclone which was pointed out by the respondent in his speech. He said that the respondent made reference to certain allegedn of accounts by Dwivedi in respect of monies collected by him. According to the witness, no allegation of misappropriation by Dwivedi was made by respondent in his speech, nor did he notice any stir or commotion amongst the audience as deposed to uniformly by different witnesses for the petitioner referred to earlier. P.W. 4 conceded that he was unable to give the exact language which the respondent used about the monies having been received by Dwivedi, but he made it clear in hisn that what the respondent had said was that Dwivedi had brought monies for the 1967 cyclone from various sources in India and also from individuals and that there was a controversy in the Prajatantra and so he enquired of the people whether they had received any such monies from Dwivedi, if Dwivedi at all received all those monies. Though there are certain aspects of this evidence which the respondent does not admit, in so far as the particular allegation which is being discussed is concerned, his evidence completely gives the lie to the other witnesses of the petitioner30. In the circumstances we agree with the observation of the High Court, which had also the opportunity of noticing the demeanour of the witnesses in respect of some of whom the learned Judge had made a note while recording their depositions, that it is difficult to understand how each any every one of these witnesses could have occasion to remember the exact sources of moneys which are said to have been received by Dwivedi. We have no doubt that all these witnesses who claim to have attended the meeting at Marshaghai on February 15, 1971, and of having heard the speech of the respondent have been got up for the occasion had cannot be relied upon. The petitioner has failed to established the allegation of corrupt practice which incidentally, as observed earlier, was developed in the evidence when the witnesses tried to supplement the pleadings when they alleged that the respondent had charged Dwivedi with misappropriation of the amounts collected from the relief funds.If what is stated in the pleadings alone was the charge against the respondent, in our view that would not amount to a corrupt practice because if amounts had been collected for any public purpose, asking the person collecting those amounts or those who were responsible for their collection, to give an account could not amount to an imputation against their personal character. Men in public life particularly those who collect monies for public or charitable purposes ought not to be sensitive when there is a demand to account for those amounts. A situation in which a demand such as that we have referred to may be made may be unfortunate, and it may hurt the vanity or the ego of the person from whom accounts are asked, but it is far from being an imputation against the personal character or conduct of the person concerned. Such a demand would refer to the public conduct of the person who is liable to render accounts and does not amount to corrupt practice31. It is, however, contended by the learned Advocate for the petitioner that the respondent had stated that Dwivedi had collected (a) Rupees 1,00,000/from the Marwaris of Bombay, (b) Rs. 25,000/from the Prime Minister and (c) That these monies were for the cyclone of 1967, all of which allegations are false. In fact Dwivedi was responsible for getting Rs. 20,000/from the Prime Minister for rebuilding a school which had been destroyed in the cyclone. Even this money was not paid to him but was routed through the Chief Minister and given to the school directly. The respondent denied that he had ever charged Dwivedi with getting money for cyclone and his case was that he never referred to any such source in his speech, and could not have done so as his information with respect to this matter on the date of the meeting was confined to a controversy that had been raised in another local daily, Prajatantra, wherein the letters Exts. 3 and 4 dated September 20 and September 27, 1970 respectively were published. Apart form these two items of publication there was another earlier publication (Ext. A) in the Prajatantra dated June 4, 1970, which referred to there collection of monies. Dwivedi himself had published a reply in the Prajatantra of June 13, 1970. But in none of these exhibits is there any referenceo ever to the Bombay Marwari Society having given any money to Dwivedi for relief work. The respondent says that he had only this controversy in his mind and he could not have alleged that Dwivedi had received a lakh of rupees from Bombay Marwari SocietyWe agree with the above finding. In our view a finding of fact arrived at by the Trial Court after due consideration , of the materials and the conduct and dameanour of the witnesses, should not be lightly interfered with by the Appellate Court, particularly when the view taken by it is justified on the evidenceThough it was shown as an advance, however there was no mention as to how this amount was utilised nor was any account kept by the Relief Committee as was pointed out in the audit report. To these allegations Dwivedi replied by his letter dated June 13, 1970 (Ext. 5) that he did not know why it was written as an advance by the Relief Committee. It was not an advance and there was no question of submitting detailed accounts of it to the Utkal Relief Committee35. It is not necessary to go into the controversy further because it is clear that some among the public were demanding accounts for the amounts collected by or through the efforts of Dwivedi and that Dwivedi was trying to explain some item which pertained to him but he said that he would render the accounts to the donors. Those who were concerned in the controversy, however, did not accept this position and demanded that Dwivedi should render the accounts this position and demanded that Dwivedi should render the accounts to the donees who are the publicWe are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for the cyclone and flood relief purposes was an expression of opinion and related to the public conduct and did not amount to any imputation against the personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions. | 0 | 11,201 | 3,028 | ### Instruction:
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name of "Orissa Relief and Rehabilitation Committee orin my nameso that the work can be started immediately. (emphasis supplied) Even so the monies never came into the hands of Dwivedi and his evidence as P. W. 13 corroborates this statement. The respondent also has not contested this position. But as Dwivedi had taken part in collecting the monies and as an important member of his party, on whose appeals monies for relief amounts were being paid, the members of the public had a right to call on him to have an account rendered if there was controversy in respect of its expenditure. 34. Such a controversy was raised in the Prajatantra dated June 4, 1970 in which the Chief Editor referred to this matter under the heading "Mismanagement in Utkal Relief Committee. In that article it was stated that in the audit report for the year 1968-69 it was shown that no account had been kept though a total sum of Rs. 36,657-05 was given as an advance to different persons It was also stated that 24,960/- was given to Dwivedi, M. P., out of Rs. 35,000/- granted by the Bihar Relief Committee. Though it was shown as an advance, however there was no mention as to how this amount was utilised nor was any account kept by the Relief Committee as was pointed out in the audit report. To these allegations Dwivedi replied by his letter dated June 13, 1970 (Ext. 5) that he did not know why it was written as an advance by the Relief Committee. It was not an advance and there was no question of submitting detailed accounts of it to the Utkal Relief Committee. He further stated:"Last year, when I was visiting the flood affected area of Luna Karandia at Cuttack District, the school buildings were damaged by the floods just after the cyclone and the villagers were not in a position to rebuild them. There was little hope for sanction of much government aid for this purpose. By seeing this I made a special appeal to different relief Committees and some respectable persons to help for repairing of these schools. On the consequence of my appeal some donors sent money and the Bihar Relief Committee sent Rs. 25,000/- for me through the Utkal Relief Committee. They have given me the balance amount after deducting Rs. 40/- towards the Bank Commission. That amount along with other amounts which were received were given as relief for repairing the school, houses of this area of Patkura and its surrounding areas. The work has been done through a Committee and till now the relief work is going on. The detailed description of the accounts shall be sent to the donors after the completion of work. In this letter also Dwivedi claims that it was as a consequence of his appeal that some donors sent money to him and that he would send the detailed accounts to the donors. Notwithstanding this letter one Saroj Mohanti and some others wrote Ext. 3 as published in the Prajatantra daily dated September 20, 1970, in which it was said as follows:"After the publication of the audit report of Orissa Relief Committee, no clarification has yet been published by the Relief Committee. Only Sri Surendra Dwivedi has admitted that he has taken Rs. 25,000/- which he has arranged from Bihar Relief Committee. Besides this amount he has also declared that he has arranged some more money from other sources also. We have heard that he has collected more than one lac of rupees for relief purposes. According to Dwivedi he has collected these amounts for the repairing of school buildings. Sri Dwivedi had also requested the Prime Minister for help. Instead of giving money to Sri Dwivedi the Prime Minister sent Rs. 25,000/- to the Chief Ministers Relief Fund. Sri Dwivedi tried to spend this amount himself. But the Chief Minister did not agree with it and spent the amount through the Department. Therefore, this amount is different. Sri Dwivedi should furnish the accounts of rupees more than one lac which was in his hand. Sri Dwivedi has told that he shall submit the accounts if the donors want it. A great leader like him should know that the donor as well as the donee should know the accounts. Besides, the public also should know it. As far as we know almost no relief has been reached in the Patkura area from Sri Dwivedi. Sri Dwivedi has told that he has collected this money for this area. Our doubts would be cleared if Sri Dwivedi would furnish the full accounts. 35. It is not necessary to go into the controversy further because it is clear that some among the public were demanding accounts for the amounts collected by or through the efforts of Dwivedi and that Dwivedi was trying to explain some item which pertained to him but he said that he would render the accounts to the donors. Those who were concerned in the controversy, however, did not accept this position and demanded that Dwivedi should render the accounts this position and demanded that Dwivedi should render the accounts to the donees who are the public According to the respondent it is this controversy to which he was referring in his speech and had merely asked Dwivedi to render accounts of the monies collected by him. He did not make any imputation against his personal character, nor did he in any manner suggest that there was anything sinister in the conduct of Dwivedi in respect of the monies collected for the relief work. We are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for the cyclone and flood relief purposes was an expression of opinion and related to the public conduct and did not amount to any imputation against the personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions.
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was that Dwivedi had brought monies for the 1967 cyclone from various sources in India and also from individuals and that there was a controversy in the Prajatantra and so he enquired of the people whether they had received any such monies from Dwivedi, if Dwivedi at all received all those monies. Though there are certain aspects of this evidence which the respondent does not admit, in so far as the particular allegation which is being discussed is concerned, his evidence completely gives the lie to the other witnesses of the petitioner30. In the circumstances we agree with the observation of the High Court, which had also the opportunity of noticing the demeanour of the witnesses in respect of some of whom the learned Judge had made a note while recording their depositions, that it is difficult to understand how each any every one of these witnesses could have occasion to remember the exact sources of moneys which are said to have been received by Dwivedi. We have no doubt that all these witnesses who claim to have attended the meeting at Marshaghai on February 15, 1971, and of having heard the speech of the respondent have been got up for the occasion had cannot be relied upon. The petitioner has failed to established the allegation of corrupt practice which incidentally, as observed earlier, was developed in the evidence when the witnesses tried to supplement the pleadings when they alleged that the respondent had charged Dwivedi with misappropriation of the amounts collected from the relief funds.If what is stated in the pleadings alone was the charge against the respondent, in our view that would not amount to a corrupt practice because if amounts had been collected for any public purpose, asking the person collecting those amounts or those who were responsible for their collection, to give an account could not amount to an imputation against their personal character. Men in public life particularly those who collect monies for public or charitable purposes ought not to be sensitive when there is a demand to account for those amounts. A situation in which a demand such as that we have referred to may be made may be unfortunate, and it may hurt the vanity or the ego of the person from whom accounts are asked, but it is far from being an imputation against the personal character or conduct of the person concerned. Such a demand would refer to the public conduct of the person who is liable to render accounts and does not amount to corrupt practice31. It is, however, contended by the learned Advocate for the petitioner that the respondent had stated that Dwivedi had collected (a) Rupees 1,00,000/from the Marwaris of Bombay, (b) Rs. 25,000/from the Prime Minister and (c) That these monies were for the cyclone of 1967, all of which allegations are false. In fact Dwivedi was responsible for getting Rs. 20,000/from the Prime Minister for rebuilding a school which had been destroyed in the cyclone. Even this money was not paid to him but was routed through the Chief Minister and given to the school directly. The respondent denied that he had ever charged Dwivedi with getting money for cyclone and his case was that he never referred to any such source in his speech, and could not have done so as his information with respect to this matter on the date of the meeting was confined to a controversy that had been raised in another local daily, Prajatantra, wherein the letters Exts. 3 and 4 dated September 20 and September 27, 1970 respectively were published. Apart form these two items of publication there was another earlier publication (Ext. A) in the Prajatantra dated June 4, 1970, which referred to there collection of monies. Dwivedi himself had published a reply in the Prajatantra of June 13, 1970. But in none of these exhibits is there any referenceo ever to the Bombay Marwari Society having given any money to Dwivedi for relief work. The respondent says that he had only this controversy in his mind and he could not have alleged that Dwivedi had received a lakh of rupees from Bombay Marwari SocietyWe agree with the above finding. In our view a finding of fact arrived at by the Trial Court after due consideration , of the materials and the conduct and dameanour of the witnesses, should not be lightly interfered with by the Appellate Court, particularly when the view taken by it is justified on the evidenceThough it was shown as an advance, however there was no mention as to how this amount was utilised nor was any account kept by the Relief Committee as was pointed out in the audit report. To these allegations Dwivedi replied by his letter dated June 13, 1970 (Ext. 5) that he did not know why it was written as an advance by the Relief Committee. It was not an advance and there was no question of submitting detailed accounts of it to the Utkal Relief Committee35. It is not necessary to go into the controversy further because it is clear that some among the public were demanding accounts for the amounts collected by or through the efforts of Dwivedi and that Dwivedi was trying to explain some item which pertained to him but he said that he would render the accounts to the donors. Those who were concerned in the controversy, however, did not accept this position and demanded that Dwivedi should render the accounts this position and demanded that Dwivedi should render the accounts to the donees who are the publicWe are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for the cyclone and flood relief purposes was an expression of opinion and related to the public conduct and did not amount to any imputation against the personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions.
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State Of M.P. Vs. Anshuman Shukla | of Section 5 cannot be extended where the default takes place in complying with an order under Sub-section (4) of Section 13 of the Act. 34. Further, explaining as to why Section 5 of the Limitation Act is not applicable, the Court observed: The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any special statute a cause of action must arise. Compliance of an order passed by a Court of Law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a Court of Law instant consequences are provided for under the statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. [emphasis laid by this Court] It is evident on a plain reading of the judgment in that case, that the reason why Section 5 of the Limitation Act was said to be inapplicable to the Rajasthan Act, Section 13(4), was because of the nature of the specific provision in question. It was held that Section 5 of the Limitation Act is not applicable to Section 13(4), as the deposit of rent by the tenant cannot be said to be an application for the purpose of Section 5 of the Limitation Act. This case cannot be said to be relevant to the facts of the present case, as Section 5 of the Limitation Act has got application for the purpose of Section 19 of the Act of 1983, and the cause of action accrued to the appellant when the Tribunal passed the award. 35. We now direct our attention to the second case i.e. Union of India v. Popular Construction (supra)on which reliance was placed by this Court while dismissing the Special Leave Petition in the case of NagarpalikaParishad, Morena (supra). The issue therein was whether Sections 4 to 24 of the Limitation Act would be applicable to Section 34 of the Arbitration Act, 1996. 36. The wording of Section 34(3) of the Arbitration Act, 1996, reads thus: 34. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. [emphasis laid by this Court] While examining the provision of Section 34, the Court in Popular Construction case (supra) observed as under: 8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. [emphasis laid by this Court] While holding that Section 5 is not applicable to Section 34(3), it was held that the presence of the words but not thereafter operate as an express exclusion to Section 5 of the Limitation Act. 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result. (Emphasis laid down by the Court) 37. Section 19 of the Act of 1983, does not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of the prescribed period of three months. On the contrary, the High Court is conferred with suomoto power, to call for the record of an award at any time. It cannot, therefore, be said that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the Act of 1983. 38. In our opinion, it is unnecessary to delve into the question of whether the Arbitral Tribunal constituted under the Act is a Court or not for answering the issue in the present case, as the delay in filing the revision has occurred before the High Court, and not the Arbitral Tribunal. Answer to Point No.2 39. In light of the reasons recorded above, we are of the opinion that the case of Nagar Palika Parishad, Morena (supra) was decided erroneously. Section 5 of the Limitation Act is applicable to Section 19 of the Act of 1983. No express exclusion has been incorporated therein, and there is neither any evidence to suggest that the legislative intent was to bar the application of Section 5 of the Limitation Act on Section 19 of the Act of 1983. The cases which were relied upon to dismiss the Special Leave Petition, namely Nasiruddin(supra) and Popular Construction (supra) can be distinguished both in terms of the facts as well as the law applicable, and thus, have no bearing on the facts of the present case. | 1[ds]20. The Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 came into force with effect from 01.03.1985. It was enacted to provide for the establishment of a Tribunal to arbitrate on disputes to which the State Government or a Public Undertaking (wholly or substantially owned or controlled by the State Government), is a party and for matters incidental thereto or connected therewith21. The Arbitral Tribunal is constituted in terms of Section 3 of the Act of 1983, for resolving all disputes and differences pertaining to works contract or arising out of or connected with execution, discharge or satisfaction of any such works contract22. Section 7 of the Act provides for reference to Tribunal. Such reference may be made irrespective of whether the agreement contains an arbitration clause or not. Section 7-A of the Act provides for the particulars on the basis whereof the reference petition is to be filed23. Section 19 of the Act confers the power of revision on the High Court. It provides that the aggrieved party may make an application for revision before the High Court within three months of the date of the award. This Section was amended in 2005, to confer the power on the High Court to condone the delay. Since this dispute pertains prior to 2005, thus, the provision of the unamended Act shall apply in the present case24. The Limitation Act, 1963 is the general legislation on the law of limitation25. Section 5 of the Limitation Act provides that an appeal may be admitted after the limitation period has expired, if the appellant satisfies the court that there was sufficient cause for delay26. Section 29 of the Limitation Act is the saving section. Sub-section (2) reads as follows:(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local lawSub section (2) thus, provides that Sections 4 to 24 of the Limitation Act shall be applicable to any Act which prescribes a special period of limitation, unless they are expressly excluded by that special law27. This Court in the case of MukriGopalan v. CheppilatPuthanpuravil Aboobacker ((1995) 5 SCC 5 ) examined the question of whether the Limitation Act will apply to the Kerala Buildings (Lease and Rent) Control Act, 1965. While holding that the appellate authority under the Kerala Act acts as a Court, it was held that since the Act prescribes a period of limitation, which is different from the period of limitation prescribed under the Limitation Act, and there is no express exclusion of Sections 4 to 24 of the Limitation Act, in the above (Lease & Rent) Control Act, thus, those Sections shall be applicable to the Kerala ActWhile examining the provisions of Section 29(2) of the Limitation Act, it was observed:8. A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision:(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act28. It was further held that if the two above conditions are satisfied, then the following implications would follow:9. If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically followThese consequences are as under:(i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the schedule(ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24(inclusive) would apply insofar as and to the extent to which they are not expressly excluded b y such special or local la w[emphasis laid by this Court]29. Further, in the case of HukumdevNarain Yadav v. Lalit Narain Mishra ((1974)2 SCC 133) , a three judge Bench of this court, while examining whether the Limitation Act would be applicable to the provisions of Representation of People Act, observed as under:17. ....but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation30. According to HukumdevNarain Yadav (supra), even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law, and arrived at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act31. Section 19 of the Act of 1983 prescribes a period of limitation of three months. This limitation period finds no mention in the schedule to the Limitation Act. Further, Section 19 does not expressly exclude the application of Sections 4 to 24 of the Limitation Act, 1963It is evident on a plain reading of the judgment in that case, that the reason why Section 5 of the Limitation Act was said to be inapplicable to the Rajasthan Act, Section 13(4), was because of the nature of the specific provision in question. It was held that Section 5 of the Limitation Act is not applicable to Section 13(4), as the deposit of rent by the tenant cannot be said to be an application for the purpose of Section 5 of the Limitation Act. This case cannot be said to be relevant to the facts of the present case, as Section 5 of the Limitation Act has got application for the purpose of Section 19 of the Act of 1983, and the cause of action accrued to the appellant when the Tribunal passed the award37. Section 19 of the Act of 1983, does not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of the prescribed period of three months. On the contrary, the High Court is conferred with suomoto power, to call for the record of an award at any time. It cannot, therefore, be said that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the Act of 198338. In our opinion, it is unnecessary to delve into the question of whether the Arbitral Tribunal constituted under the Act is a Court or not for answering the issue in the present case, as the delay in filing the revision has occurred before the High Court, and not the Arbitral Tribunal | 1 | 4,327 | 1,483 | ### Instruction:
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of Section 5 cannot be extended where the default takes place in complying with an order under Sub-section (4) of Section 13 of the Act. 34. Further, explaining as to why Section 5 of the Limitation Act is not applicable, the Court observed: The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any special statute a cause of action must arise. Compliance of an order passed by a Court of Law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a Court of Law instant consequences are provided for under the statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. [emphasis laid by this Court] It is evident on a plain reading of the judgment in that case, that the reason why Section 5 of the Limitation Act was said to be inapplicable to the Rajasthan Act, Section 13(4), was because of the nature of the specific provision in question. It was held that Section 5 of the Limitation Act is not applicable to Section 13(4), as the deposit of rent by the tenant cannot be said to be an application for the purpose of Section 5 of the Limitation Act. This case cannot be said to be relevant to the facts of the present case, as Section 5 of the Limitation Act has got application for the purpose of Section 19 of the Act of 1983, and the cause of action accrued to the appellant when the Tribunal passed the award. 35. We now direct our attention to the second case i.e. Union of India v. Popular Construction (supra)on which reliance was placed by this Court while dismissing the Special Leave Petition in the case of NagarpalikaParishad, Morena (supra). The issue therein was whether Sections 4 to 24 of the Limitation Act would be applicable to Section 34 of the Arbitration Act, 1996. 36. The wording of Section 34(3) of the Arbitration Act, 1996, reads thus: 34. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. [emphasis laid by this Court] While examining the provision of Section 34, the Court in Popular Construction case (supra) observed as under: 8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. [emphasis laid by this Court] While holding that Section 5 is not applicable to Section 34(3), it was held that the presence of the words but not thereafter operate as an express exclusion to Section 5 of the Limitation Act. 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result. (Emphasis laid down by the Court) 37. Section 19 of the Act of 1983, does not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of the prescribed period of three months. On the contrary, the High Court is conferred with suomoto power, to call for the record of an award at any time. It cannot, therefore, be said that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the Act of 1983. 38. In our opinion, it is unnecessary to delve into the question of whether the Arbitral Tribunal constituted under the Act is a Court or not for answering the issue in the present case, as the delay in filing the revision has occurred before the High Court, and not the Arbitral Tribunal. Answer to Point No.2 39. In light of the reasons recorded above, we are of the opinion that the case of Nagar Palika Parishad, Morena (supra) was decided erroneously. Section 5 of the Limitation Act is applicable to Section 19 of the Act of 1983. No express exclusion has been incorporated therein, and there is neither any evidence to suggest that the legislative intent was to bar the application of Section 5 of the Limitation Act on Section 19 of the Act of 1983. The cases which were relied upon to dismiss the Special Leave Petition, namely Nasiruddin(supra) and Popular Construction (supra) can be distinguished both in terms of the facts as well as the law applicable, and thus, have no bearing on the facts of the present case.
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and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local lawSub section (2) thus, provides that Sections 4 to 24 of the Limitation Act shall be applicable to any Act which prescribes a special period of limitation, unless they are expressly excluded by that special law27. This Court in the case of MukriGopalan v. CheppilatPuthanpuravil Aboobacker ((1995) 5 SCC 5 ) examined the question of whether the Limitation Act will apply to the Kerala Buildings (Lease and Rent) Control Act, 1965. While holding that the appellate authority under the Kerala Act acts as a Court, it was held that since the Act prescribes a period of limitation, which is different from the period of limitation prescribed under the Limitation Act, and there is no express exclusion of Sections 4 to 24 of the Limitation Act, in the above (Lease & Rent) Control Act, thus, those Sections shall be applicable to the Kerala ActWhile examining the provisions of Section 29(2) of the Limitation Act, it was observed:8. A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision:(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act28. It was further held that if the two above conditions are satisfied, then the following implications would follow:9. If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically followThese consequences are as under:(i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the schedule(ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24(inclusive) would apply insofar as and to the extent to which they are not expressly excluded b y such special or local la w[emphasis laid by this Court]29. Further, in the case of HukumdevNarain Yadav v. Lalit Narain Mishra ((1974)2 SCC 133) , a three judge Bench of this court, while examining whether the Limitation Act would be applicable to the provisions of Representation of People Act, observed as under:17. ....but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation30. According to HukumdevNarain Yadav (supra), even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law, and arrived at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act31. Section 19 of the Act of 1983 prescribes a period of limitation of three months. This limitation period finds no mention in the schedule to the Limitation Act. Further, Section 19 does not expressly exclude the application of Sections 4 to 24 of the Limitation Act, 1963It is evident on a plain reading of the judgment in that case, that the reason why Section 5 of the Limitation Act was said to be inapplicable to the Rajasthan Act, Section 13(4), was because of the nature of the specific provision in question. It was held that Section 5 of the Limitation Act is not applicable to Section 13(4), as the deposit of rent by the tenant cannot be said to be an application for the purpose of Section 5 of the Limitation Act. This case cannot be said to be relevant to the facts of the present case, as Section 5 of the Limitation Act has got application for the purpose of Section 19 of the Act of 1983, and the cause of action accrued to the appellant when the Tribunal passed the award37. Section 19 of the Act of 1983, does not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of the prescribed period of three months. On the contrary, the High Court is conferred with suomoto power, to call for the record of an award at any time. It cannot, therefore, be said that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the Act of 198338. In our opinion, it is unnecessary to delve into the question of whether the Arbitral Tribunal constituted under the Act is a Court or not for answering the issue in the present case, as the delay in filing the revision has occurred before the High Court, and not the Arbitral Tribunal
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Collector of Land Acquisition & Others Vs. M/s. Andaman Timber Industries | passed an award in respect of 3.64 hectares land out of total 8.86 hectares land and the amount payable under the said part, i.e., L 3,03,03,567 was paid to the respondent. No further steps were taken for the acquisition of the remaining land despite the fact that the Administration had invoked Section 17 of the Act. In the meanwhile, the workers of the respondent company, who had not received their Voluntary Retirement Scheme compensation, raised an industrial dispute which culminated into an award providing for payment of the compensation out of the compensation to be received by the respondent company from acquisition of its land. The respondent then filed Writ Petition No.197/2004 for issue of a direction to the Administration to pass final award in respect of balance land measuring 5.22 hectares. By an order dated 25.11.2004, the learned Single Judge allowed the writ petition and directed the appellants herein to complete the land acquisition proceedings within four months from the date of order. M.A.T.No.001/2005 filed by the appellants was dismissed by the Division Bench of the High Court. Learned counsel for the appellants argued that due to non-compliance of the mandate of Section 17(3-A) of the Act the acquisition proceedings in respect of 5.22 hectares will be deemed to have lapsed after two years prescribed under Section 11(A) of the Act. He further argued that after lapse of the acquisition proceedings, the land cannot be treated to have vested with the appellants.3. Learned counsel for the respondent controverted the aforesaid argument and submitted that land had vested in the appellants because possession was taken by invoking Section 17(1) of the Act. He further argued that once the possession vested with the appellants, the same cannot be withdrawn even by invoking Section 48 of the Act. In support of this argument, learned counsel relied upon the judgment of this Court in Satendra Prasad Jain and others v. State of U.P. and others (1993) 4 SCC 369. 4. We have considered the rival arguments and carefully perused the record. 5. Ordinarily, the Government can take possession of the acquired land only after an award in respect thereof has been made under Section 11. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award must be made within two years from the date of the Section 6 declaration. Therefore, if an award is not made within two years, the land cannot be treated to have vested in the Government and its title continues with the owner. However, in cases where urgency clause enshrined in Section 17 is invoked and the competent authority takes possession of the land prior to the making of the award under Section 11, the owner is divested of his title to the land and the same vests in the Government. In the instant case, 80 per cent of the estimated compensation for the land was not paid to the respondent company although Section 17(3-A) stipulates that it should have been paid before possession of the said land was taken. 6. However, this by itself is not sufficient for holding that the acquired land did not vest with the appellants. A similar argument raised in Satendra Prasad Jains case, Satendra Prasad Jain v. State of U.P., (1993) 4 SCC 369 was repelled by a three Judge Bench in the following terms: "15......Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. 16. Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation. 17. In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Section 17(3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the first respondent."7. Besides it has to be pointed out that the Government after taking possession pursuant to the notification under Section 17 of the Act cannot withdraw itself from acquisition even under Section 48 of the Act. This Court in the very same decision in Satendra Prasad Jains case has dealt with this aspect. The relevant paragraph of the judgment is extracted below:"14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan 1993(2) SCC 84 it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of H.P. v. Avinash Sharma 1970(2) SCC 149 it was held that:"8. ...after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."8. In view of the aforesaid judgment, we hold that there is no merit in the contention of the learned counsel for the appellants. | 0[ds]17. In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Sectionrequired that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the first respondent."7. Besides it has to be pointed out that the Government after taking possession pursuant to the notification under Section 17 of the Act cannot withdraw itself from acquisition even under Section 48 of the Act. This Court in the very same decision in Satendra Prasad Jains case has dealt with this aspect. The relevant paragraph of the judgment is extracted below:"14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan 1993(2) SCC 84 it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of H.P. v. Avinash Sharma 1970(2) SCC 149 it was held that:"8. ...after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."8. In view of the aforesaid judgment, we hold that there is no merit in the contention of the learned counsel for the appellants. | 0 | 1,392 | 360 | ### Instruction:
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passed an award in respect of 3.64 hectares land out of total 8.86 hectares land and the amount payable under the said part, i.e., L 3,03,03,567 was paid to the respondent. No further steps were taken for the acquisition of the remaining land despite the fact that the Administration had invoked Section 17 of the Act. In the meanwhile, the workers of the respondent company, who had not received their Voluntary Retirement Scheme compensation, raised an industrial dispute which culminated into an award providing for payment of the compensation out of the compensation to be received by the respondent company from acquisition of its land. The respondent then filed Writ Petition No.197/2004 for issue of a direction to the Administration to pass final award in respect of balance land measuring 5.22 hectares. By an order dated 25.11.2004, the learned Single Judge allowed the writ petition and directed the appellants herein to complete the land acquisition proceedings within four months from the date of order. M.A.T.No.001/2005 filed by the appellants was dismissed by the Division Bench of the High Court. Learned counsel for the appellants argued that due to non-compliance of the mandate of Section 17(3-A) of the Act the acquisition proceedings in respect of 5.22 hectares will be deemed to have lapsed after two years prescribed under Section 11(A) of the Act. He further argued that after lapse of the acquisition proceedings, the land cannot be treated to have vested with the appellants.3. Learned counsel for the respondent controverted the aforesaid argument and submitted that land had vested in the appellants because possession was taken by invoking Section 17(1) of the Act. He further argued that once the possession vested with the appellants, the same cannot be withdrawn even by invoking Section 48 of the Act. In support of this argument, learned counsel relied upon the judgment of this Court in Satendra Prasad Jain and others v. State of U.P. and others (1993) 4 SCC 369. 4. We have considered the rival arguments and carefully perused the record. 5. Ordinarily, the Government can take possession of the acquired land only after an award in respect thereof has been made under Section 11. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award must be made within two years from the date of the Section 6 declaration. Therefore, if an award is not made within two years, the land cannot be treated to have vested in the Government and its title continues with the owner. However, in cases where urgency clause enshrined in Section 17 is invoked and the competent authority takes possession of the land prior to the making of the award under Section 11, the owner is divested of his title to the land and the same vests in the Government. In the instant case, 80 per cent of the estimated compensation for the land was not paid to the respondent company although Section 17(3-A) stipulates that it should have been paid before possession of the said land was taken. 6. However, this by itself is not sufficient for holding that the acquired land did not vest with the appellants. A similar argument raised in Satendra Prasad Jains case, Satendra Prasad Jain v. State of U.P., (1993) 4 SCC 369 was repelled by a three Judge Bench in the following terms: "15......Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. 16. Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation. 17. In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Section 17(3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the first respondent."7. Besides it has to be pointed out that the Government after taking possession pursuant to the notification under Section 17 of the Act cannot withdraw itself from acquisition even under Section 48 of the Act. This Court in the very same decision in Satendra Prasad Jains case has dealt with this aspect. The relevant paragraph of the judgment is extracted below:"14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan 1993(2) SCC 84 it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of H.P. v. Avinash Sharma 1970(2) SCC 149 it was held that:"8. ...after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."8. In view of the aforesaid judgment, we hold that there is no merit in the contention of the learned counsel for the appellants.
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17. In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Sectionrequired that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the first respondent."7. Besides it has to be pointed out that the Government after taking possession pursuant to the notification under Section 17 of the Act cannot withdraw itself from acquisition even under Section 48 of the Act. This Court in the very same decision in Satendra Prasad Jains case has dealt with this aspect. The relevant paragraph of the judgment is extracted below:"14. There are two judgments of this Court which we must note. In Rajasthan Housing Board v. Shri Kishan 1993(2) SCC 84 it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land. In Lt. Governor of H.P. v. Avinash Sharma 1970(2) SCC 149 it was held that:"8. ...after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."8. In view of the aforesaid judgment, we hold that there is no merit in the contention of the learned counsel for the appellants.
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K. C. Thomas, First Income-Tax Officer, Bombay Vs. Vasant Hiralal Shah & Ors | (c) of sub-section (1) of Section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable :xx xx xxProvided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made shall apply to a re-assessment made under Section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under Section 31, Section 33, Section 33-A, Section 33B, Section 66 or Section 66-A."The second proviso to S. 34(3) could be pressed in aid by the Income-tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a higher Income-tax authority.5. Dealing with this matter the High Court has observed as follows in its judgment :"Now, when there was a limitation of eight years under Section 34(1) (a) the second proviso to Section 34(3) has to be restored. Section 34(3) had to be resorted to by the Income-tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under Section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income- tax Authority. But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out. Therefore, whether a notice is issued as a result of a direction contained in any order of an Income-tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1). Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient. Before the amendment a notice could be issued after eight years in respect of any escaped income whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income-tax Authority. Now a direction is not necessary for the issue of a notice. But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income-tax Authority no notice can be issued against the assessee if the escaped income is less than a lakh of rupees. Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amendment. The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income-tax Authority provided the Central Board of Revenue has applied its mind to the question to the issue of the notice."It would appear that the view of the High Court was that the provisions of the second proviso to S. 34 (3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub-sec. (3) of S. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thus :"Provided further that nothing contained in this sub-section shall apply to a re-assessment made under Section 27 or in pursuance of an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 or Section 66A."By the amendment of 1953, for the words "sub-section", the words "section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of S. 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to Section 34(1). The result, in our opinion, would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956. We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.6. Apart from the view expressed by the learned Judges as regards the effect of the changes made in S. 34 (1) with the provisos we have set out earlier a view which we have held is not correct - they did not further consider the proper construction to be placed on the second proviso to S. 34 (3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.7. As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention practically only to the construction of proviso (iii) to S. 34(1) which was decided in favour of the respondents and did not permit them to argue the other points raised by them. We do not the purpose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.8. For the reasons stated above, the decision of the High Court is clearly wrong. | 1[ds]It would appear that the view of the High Court was that the provisions of the second proviso to S. 34 (3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub-sec. (3) of S. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thusfurther that nothing contained in this sub-section shall apply to a re-assessment made under Section 27 or in pursuance of an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 or Sectionthe amendment of 1953, for the words "sub-section", the words "section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of S. 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to Section 34(1). The result, in our opinion, would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956. We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.6. Apart from the view expressed by the learned Judges as regards the effect of the changes made in S. 34 (1) with the provisos we have set out earlier a view which we have held is not correct - they did not further consider the proper construction to be placed on the second proviso to S. 34 (3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.7. As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention practically only to the construction of proviso (iii) to S. 34(1) which was decided in favour of the respondents and did not permit them to argue the other points raised by them. We do not the purpose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.8. For the reasons stated above, the decision of the High Court is clearly wrong. | 1 | 3,106 | 500 | ### Instruction:
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(c) of sub-section (1) of Section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable :xx xx xxProvided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made shall apply to a re-assessment made under Section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under Section 31, Section 33, Section 33-A, Section 33B, Section 66 or Section 66-A."The second proviso to S. 34(3) could be pressed in aid by the Income-tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a higher Income-tax authority.5. Dealing with this matter the High Court has observed as follows in its judgment :"Now, when there was a limitation of eight years under Section 34(1) (a) the second proviso to Section 34(3) has to be restored. Section 34(3) had to be resorted to by the Income-tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under Section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income- tax Authority. But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out. Therefore, whether a notice is issued as a result of a direction contained in any order of an Income-tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1). Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient. Before the amendment a notice could be issued after eight years in respect of any escaped income whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income-tax Authority. Now a direction is not necessary for the issue of a notice. But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income-tax Authority no notice can be issued against the assessee if the escaped income is less than a lakh of rupees. Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amendment. The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income-tax Authority provided the Central Board of Revenue has applied its mind to the question to the issue of the notice."It would appear that the view of the High Court was that the provisions of the second proviso to S. 34 (3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub-sec. (3) of S. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thus :"Provided further that nothing contained in this sub-section shall apply to a re-assessment made under Section 27 or in pursuance of an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 or Section 66A."By the amendment of 1953, for the words "sub-section", the words "section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of S. 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to Section 34(1). The result, in our opinion, would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956. We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.6. Apart from the view expressed by the learned Judges as regards the effect of the changes made in S. 34 (1) with the provisos we have set out earlier a view which we have held is not correct - they did not further consider the proper construction to be placed on the second proviso to S. 34 (3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.7. As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention practically only to the construction of proviso (iii) to S. 34(1) which was decided in favour of the respondents and did not permit them to argue the other points raised by them. We do not the purpose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.8. For the reasons stated above, the decision of the High Court is clearly wrong.
### Response:
1
### Explanation:
It would appear that the view of the High Court was that the provisions of the second proviso to S. 34 (3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub-sec. (3) of S. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thusfurther that nothing contained in this sub-section shall apply to a re-assessment made under Section 27 or in pursuance of an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 or Sectionthe amendment of 1953, for the words "sub-section", the words "section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of S. 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to Section 34(1). The result, in our opinion, would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956. We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.6. Apart from the view expressed by the learned Judges as regards the effect of the changes made in S. 34 (1) with the provisos we have set out earlier a view which we have held is not correct - they did not further consider the proper construction to be placed on the second proviso to S. 34 (3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.7. As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention practically only to the construction of proviso (iii) to S. 34(1) which was decided in favour of the respondents and did not permit them to argue the other points raised by them. We do not the purpose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.8. For the reasons stated above, the decision of the High Court is clearly wrong.
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Apm Terminals B.V Vs. Union Of India | the hands of one private group or consortium which would be in a dominant position to control not only the rights of tariff, but also the entry of ships, not belonging to such group, into the Major Ports and thereby give an undue advantage to its own ships over other shipping agencies. 60. Normally, the Courts do not interfere with policy decisions of the Government unless they are arbitrary or offend any of the provisions of the Constitution. In the present cases, the adoption of such a course would, in our view, be apposite. 61. It has been the consistent view of this Court that a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest and provided such change in policy was guided by reason. Several decisions have been cited by the parties in this regard in the context of preventing private manopolisation of port activities to an extent where such private player would assume a dominant position which would enable them to control not only the berthing of ships but the tariff for use of the port facilities. In both the cases under consideration, the same set of entrepreneurs are interested in gaining control over the different container terminals to the exclusion of other players. The Central Government in its Ministry of Shipping and Transport, therefore, took a decision not to permit licensees who have been granted a licence for running one of the container terminal berths from participating in the bid process for the immediate next container terminal, with the intention of promoting healthy competition for the benefit of the shipping industry and the ports in India as well. The decision to alter its policy is based on sound reasoning and the Central Government has taken such decision for the benefit of the consumers as a whole. The changed policy would also have the effect of preventing cartelisation and dominant status, which could inevitably affect the ultimate pricing of consumer goods within the country. As was held in Shimnit Utsch India Private Ltd. Vs. West Bengal Transport Infrastructure Development Corporation Limited and Ors. [(2010) 6 SCC 303] , the Government was entitled to change its policies with changing circumstances and only on grounds of change a policy does not stand vitiated. 62. It was further held that Government has the discretion to adopt a different policy, alter or change its policy to make it more effective. The only qualifying condition is that such change in policy must be free from arbitrariness, irrationality, bias and malice and must be in conformity with the principle of Wednesbury reasonableness. Although, it has been urged by Ms. Chidambaram that such change in policy could be effected only by way of legislation, such a submission, if accepted, could stultify the powers of the Central Government to alter its policies with changing circumstances for the benefit of the public at large. It is not as if the right of a licensee to bid for a further container terminal berth has been excluded for the entire period of the Licence Agreement but in order to ensure proper competition and participation by all intending tenderers, the said policy has also been altered to enable such licensees to bid for the next but one tender as and when invited. 63. However, as far as the appellant is concerned, it is because of certain fortuitous circumstances that it came to be excluded from the tender process for the Fourth Container Terminal. If the tender process for the Third Container Terminal had been concluded, the various complications could have been avoided since under the revised policy, the appellant was entitled to participate in the alternate bids. The appellant having been excluded from one bid on the basis of an existing policy, cannot be debarred from participating in the next bid, by taking recourse to a different yardstick. Such a course of action would be contrary to public policy. Accordingly, the authorities of the JNPT shall allow the appellant to continue to participate in the tender process for the Fourth Container Terminal and the decision to the contrary conveyed to the appellant on 29th June, 2009, is quashed. 64. As far as PSA Sical Terminals Ltd. is concerned, Ms. Chidambarams submission as to the applicability of the doctrine of legitimate expectation is at best an expectation if there are cogent grounds to deny the same. The said doctrine has been explained by this Court in Sethi Auto Service Station Vs. Delhi Development Authority [(2009) 1 SCC 180] , and it was held that the appellant in the said case had certain expectations which were duly considered and favourable recommendations had also been made, but the final decision-making authority considered the matter when the policy had undergone a change and the cases of the appellants therein did not meet the new criteria for allotment laid down in the new policy. It was also observed that the concept of legitimate expectation has no role to play where State action is based on public policy and in the public interest, unless the action taken amounted to an abuse of power. 65. As we have indicated earlier, the Central Government was within its powers to adopt a policy to prevent the port facilities from being concentrated in the hands of one private group or consortium which could have complete control over the use of the facilities of the ports to the detriment of the shipping industry as a whole. The decision taken by the Tuticorin Port Trust Authorities to exclude PSA Sical Terminals Ltd. from bidding for the 8th Berth Container Terminal cannot, therefore, be said to be arbitrary or unreasonable so as to warrant interference. In fact, the position of PSA Sical Terminals Ltd. is no different from that of A.P.M. Terminals B.V. which had been excluded from the bid for the Third Container Terminal at JNPT. 66. In the aforesaid circumstances, | 1[ds]The provisions of Clause 2.3 in the Agreements signed between the Tuticorin Port Trust and PSA Sical cannot be read in isolation of the other provisions in the agreement which prevented the Licensee from bidding for other work within the port area during the period of the licence. In fact, in our view, the change in policy to prevent private mobilization has been held to be justified by the Bombay High Court as well as this Court. In the absence of any arbitrariness in effecting such change in policy and keeping in mind the larger public interest, we are of the view, that the Central Government was within its powers to strike a balance with regard to the control of the port facilities so that the same did not come to be concentrated in the hands of one private group or consortium which would be in a dominant position to control not only the rights of tariff, but also the entry of ships, not belonging to such group, into the Major Ports and thereby give an undue advantage to its own ships over other shippingchange in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest and provided such change in policy was guided by reason. Several decisions have been cited by the parties in this regard in the context of preventing private manopolisation of port activities to an extent where such private player would assume a dominant position which would enable them to control not only the berthing of ships but the tariff for use of the port facilities. In both the cases under consideration, the same set of entrepreneurs are interested in gaining control over the different container terminals to the exclusion of other players. The Central Government in its Ministry of Shipping and Transport, therefore, took a decision not to permit licensees who have been granted a licence for running one of the container terminal berths from participating in the bid process for the immediate next container terminal, with the intention of promoting healthy competition for the benefit of the shipping industry and the ports in India as well. The decision to alter its policy is based on sound reasoning and the Central Government has taken such decision for the benefit of the consumers as a whole. The changed policy would also have the effect of preventing cartelisation and dominant status, which could inevitably affect the ultimate pricing of consumer goods within theonly qualifying condition is that such change in policy must be free from arbitrariness, irrationality, bias and malice and must be in conformity with the principle of Wednesburydecision taken by the Tuticorin Port Trust Authorities to exclude PSA Sical Terminals Ltd. from bidding for the 8th Berth Container Terminal cannot, therefore, be said to be arbitrary or unreasonable so as to warrant interference. In fact, the position of PSA Sical Terminals Ltd. is no different from that of A.P.M. Terminals B.V. which had been excluded from the bid for the Third Container Terminal at JNPT. | 1 | 10,477 | 552 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the hands of one private group or consortium which would be in a dominant position to control not only the rights of tariff, but also the entry of ships, not belonging to such group, into the Major Ports and thereby give an undue advantage to its own ships over other shipping agencies. 60. Normally, the Courts do not interfere with policy decisions of the Government unless they are arbitrary or offend any of the provisions of the Constitution. In the present cases, the adoption of such a course would, in our view, be apposite. 61. It has been the consistent view of this Court that a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest and provided such change in policy was guided by reason. Several decisions have been cited by the parties in this regard in the context of preventing private manopolisation of port activities to an extent where such private player would assume a dominant position which would enable them to control not only the berthing of ships but the tariff for use of the port facilities. In both the cases under consideration, the same set of entrepreneurs are interested in gaining control over the different container terminals to the exclusion of other players. The Central Government in its Ministry of Shipping and Transport, therefore, took a decision not to permit licensees who have been granted a licence for running one of the container terminal berths from participating in the bid process for the immediate next container terminal, with the intention of promoting healthy competition for the benefit of the shipping industry and the ports in India as well. The decision to alter its policy is based on sound reasoning and the Central Government has taken such decision for the benefit of the consumers as a whole. The changed policy would also have the effect of preventing cartelisation and dominant status, which could inevitably affect the ultimate pricing of consumer goods within the country. As was held in Shimnit Utsch India Private Ltd. Vs. West Bengal Transport Infrastructure Development Corporation Limited and Ors. [(2010) 6 SCC 303] , the Government was entitled to change its policies with changing circumstances and only on grounds of change a policy does not stand vitiated. 62. It was further held that Government has the discretion to adopt a different policy, alter or change its policy to make it more effective. The only qualifying condition is that such change in policy must be free from arbitrariness, irrationality, bias and malice and must be in conformity with the principle of Wednesbury reasonableness. Although, it has been urged by Ms. Chidambaram that such change in policy could be effected only by way of legislation, such a submission, if accepted, could stultify the powers of the Central Government to alter its policies with changing circumstances for the benefit of the public at large. It is not as if the right of a licensee to bid for a further container terminal berth has been excluded for the entire period of the Licence Agreement but in order to ensure proper competition and participation by all intending tenderers, the said policy has also been altered to enable such licensees to bid for the next but one tender as and when invited. 63. However, as far as the appellant is concerned, it is because of certain fortuitous circumstances that it came to be excluded from the tender process for the Fourth Container Terminal. If the tender process for the Third Container Terminal had been concluded, the various complications could have been avoided since under the revised policy, the appellant was entitled to participate in the alternate bids. The appellant having been excluded from one bid on the basis of an existing policy, cannot be debarred from participating in the next bid, by taking recourse to a different yardstick. Such a course of action would be contrary to public policy. Accordingly, the authorities of the JNPT shall allow the appellant to continue to participate in the tender process for the Fourth Container Terminal and the decision to the contrary conveyed to the appellant on 29th June, 2009, is quashed. 64. As far as PSA Sical Terminals Ltd. is concerned, Ms. Chidambarams submission as to the applicability of the doctrine of legitimate expectation is at best an expectation if there are cogent grounds to deny the same. The said doctrine has been explained by this Court in Sethi Auto Service Station Vs. Delhi Development Authority [(2009) 1 SCC 180] , and it was held that the appellant in the said case had certain expectations which were duly considered and favourable recommendations had also been made, but the final decision-making authority considered the matter when the policy had undergone a change and the cases of the appellants therein did not meet the new criteria for allotment laid down in the new policy. It was also observed that the concept of legitimate expectation has no role to play where State action is based on public policy and in the public interest, unless the action taken amounted to an abuse of power. 65. As we have indicated earlier, the Central Government was within its powers to adopt a policy to prevent the port facilities from being concentrated in the hands of one private group or consortium which could have complete control over the use of the facilities of the ports to the detriment of the shipping industry as a whole. The decision taken by the Tuticorin Port Trust Authorities to exclude PSA Sical Terminals Ltd. from bidding for the 8th Berth Container Terminal cannot, therefore, be said to be arbitrary or unreasonable so as to warrant interference. In fact, the position of PSA Sical Terminals Ltd. is no different from that of A.P.M. Terminals B.V. which had been excluded from the bid for the Third Container Terminal at JNPT. 66. In the aforesaid circumstances,
### Response:
1
### Explanation:
The provisions of Clause 2.3 in the Agreements signed between the Tuticorin Port Trust and PSA Sical cannot be read in isolation of the other provisions in the agreement which prevented the Licensee from bidding for other work within the port area during the period of the licence. In fact, in our view, the change in policy to prevent private mobilization has been held to be justified by the Bombay High Court as well as this Court. In the absence of any arbitrariness in effecting such change in policy and keeping in mind the larger public interest, we are of the view, that the Central Government was within its powers to strike a balance with regard to the control of the port facilities so that the same did not come to be concentrated in the hands of one private group or consortium which would be in a dominant position to control not only the rights of tariff, but also the entry of ships, not belonging to such group, into the Major Ports and thereby give an undue advantage to its own ships over other shippingchange in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest and provided such change in policy was guided by reason. Several decisions have been cited by the parties in this regard in the context of preventing private manopolisation of port activities to an extent where such private player would assume a dominant position which would enable them to control not only the berthing of ships but the tariff for use of the port facilities. In both the cases under consideration, the same set of entrepreneurs are interested in gaining control over the different container terminals to the exclusion of other players. The Central Government in its Ministry of Shipping and Transport, therefore, took a decision not to permit licensees who have been granted a licence for running one of the container terminal berths from participating in the bid process for the immediate next container terminal, with the intention of promoting healthy competition for the benefit of the shipping industry and the ports in India as well. The decision to alter its policy is based on sound reasoning and the Central Government has taken such decision for the benefit of the consumers as a whole. The changed policy would also have the effect of preventing cartelisation and dominant status, which could inevitably affect the ultimate pricing of consumer goods within theonly qualifying condition is that such change in policy must be free from arbitrariness, irrationality, bias and malice and must be in conformity with the principle of Wednesburydecision taken by the Tuticorin Port Trust Authorities to exclude PSA Sical Terminals Ltd. from bidding for the 8th Berth Container Terminal cannot, therefore, be said to be arbitrary or unreasonable so as to warrant interference. In fact, the position of PSA Sical Terminals Ltd. is no different from that of A.P.M. Terminals B.V. which had been excluded from the bid for the Third Container Terminal at JNPT.
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Padmini Kunwar Jusahiba Vs. State of Uttar Pradesh & Another | "Ijaredar" has been used in the section, it must take colour from it and cannot be held to mean any lease of land of whatever kind. In the setting in which the word is used it should in our opinion be confined to a person holding an Ijara which is a lease or farm of land revenue or other proprietary right as distinguished from other kinds of leases of land.5. The next question is whether the lease in this particular case is a lease of land revenue or other proprietary right as distinguished from lease of land of other kinds. The lease in the present case is called a Lambardari lease, though it appears that the system of Lambardari leases was abolished in the State of Panna long ago as appears from paragraph (2) of Chap. II of the Revenue Administration Manual of the Panna State prepared by J. E. Goudge, Settlement Officer, Bundelkhand State in 1907. It has been stated in that paragraph that "the system of Lambardari leases has been abolished and rents will in future be realised by the Darbar direct from each tenant through the zamindars of the village." Zamindar in that area is a petty village official for the purpose of collecting rents and has no interest in the land from which he collects rent. It does appear from this paragraph that a Lambardari lease originally was a kind of lease of land revenue; but such leases were abolished in the area from which this case comes long ago. It is true that this lease is called a Lambardari lease but the mere name will not matter and we have to see whether this was a lease of land revenue.6. This brings us to the terms of the lease. The lease starts by saying that the villages given in lease have an average annual income of Rs. 1,242/4/-payable in two instalments in the months of June and December. The lease is to last for thirty years and the lessee has to pay the entire amount (namely, Rs. 1,242/4-) as lease money which will remain the same for the whole period of thirty years. The lease also provides that if within this time any settlement is made and the revenue is increased or the Lambardar increases the income by inhabiting the villages, the Lambardar herself will be entitled to reap this additional benefit. The lease further provides that if for any reason the rent of land is decreased then the Lambardar will not be entitled to any decrease in the lease money. It is clear from these terms that the Lambardar stood to gain nothing by this lease and no part of the land revenue was left to her except where there was an increase in revenue on account of a future settlement. The lease further provides that if during the period of lease the Lambardar makes any improvements, i.e., plants groves and orchards, makes bandhs and bandhis (i.e., large and small dams) she will be entitled at the end of the lease to sell or mortgage them and the benefit of the improvements will go to her. Lastly-and this is an important term of the lease-it is provided that the lessees right to mortgage and sell the lands will be governed by the laws of the State and if the law is amended afterwards it will be governed by the amended laws. These clauses in the lease clearly show that what the appellant was getting was not merely a lease of land revenue but actual rights in the lands including the right to cultivate them herself. Reading therefore the lease as a whole it does not appear that it is a mere lease of land revenue or other proprietary right. It is something more and actually gives the lessee the right to all lands which were not in the actual cultivation of tenants at the time of the lease. The lessee was entitled to make improvements, to plant groves and orchards and to make dams-large and small. She was also entitled to mortgage and sell the lands which she might bring into her own cultivation in accordance with the laws of the State. It is difficult under the circumstances to hold that this was a mere Ijara and the appellant was a mere Ijaredar within the meaning of that word as mentioned above. There is a certain element of lease of land revenue in this lease though that was not likely to bring any profit to the appellant; but the lease is much more than a mere Ijara of this kind and actually confers on the appellant rights in land not in the actual cultivation of the tenants at the time of the lease. In the circumstances we cannot agree with the learned Judicial Commissioner that the transaction evidenced by this lease is a mere Ijara in the sense explained above and the appellant is a mere Ijaredar who comes within the meaning of that word in S. 2(1)(c). The lease in our opinion confers rights in lands and is much more than an Ijara. In the circumstances the appellant cannot be held to be a mere Ijaredar covered by the definition of that word as used in S. 2(1)(c). The case of the appellant in our opinion is similar to the case put forward in Petn. No. 392 of 1954 with respect to Khandela estate (see Thakur Amar Singhji v. State of Rajasthan, (1955) 2 SCR 303 at p. 367 : ( (S) AIR 1955 SC 504 at p. 537). There also was an Ijara or lease on payment of an annual assessment of Rs. 80,001 and it was held that it was not covered by the terms of the Rajasthan Land reforms and Resumption of Jagirs Act. The present case in our opinion is similar and we are of opinion that the lease granted in this case cannot make the appellant a mere Ijaredar within the meaning of that word in S. 2(1)(c). | 1[ds]4. It is not in dispute that the lands were not granted to the appellant by the Ruler of Panna as a jagir. It is also not in dispute that the appellant was not recognized as a jagirdar under any law, rules, regulations or orders governing jagirdars in force in any part of thethe words used in the inclusive part of the definition have not been defined anywhere in the Act. It appears that some of those words are words of common use while other are not. For example, the Rewa Land Revenue and tenancy Code deals with a Pawaidar, a sub-Pawaidar and Ilakedar who is big Pawaidar. It is not clear whether the other words used in the inclusive part of the definition of "jagirdar" appear in any other laws in force in the various States which amalgamated to form the State of Vindhya Pradesh, though the word "Ubaridar" appears to be somewhat uncommon and must have some special local significance. It will therefore be not unreasonable to hold that where these words used in the inclusive part of the definition appear in any law in force in any part of the State, they must have that meaning; but if they do not appear in any such law they must be given their ordinary meaning. The Judicial Commissioner in his judgment says that "an Ijaredar as such has not been defined under any law relating to land revenue and tenancy in force in any part of Vindhya Pradesh." Therefore, the word "Ijaredar" must be given its ordinary meaning. Now the ordinary meaning of the word "Ijara" from which the word "Ijaredar" is derived is a lease or farm of land revenue or other proprietary right as distinguished from a patta or lease of land for cultivation, though sometimes it is used to indicate just a lease of land of any kind. The question then is what meaning should be given to the word "Ijaredar" in S. 2(1)(c) of the Act. We are of opinion that considering the setting in which the word "Ijaredar" has been used in the section, it must take colour from it and cannot be held to mean any lease of land of whatever kind. In the setting in which the word is used it should in our opinion be confined to a person holding an Ijara which is a lease or farm of land revenue or other proprietary right as distinguished from other kinds of leases oflease in the present case is called a Lambardaridoes appear from this paragraph that a Lambardari lease originally was a kind of lease of land revenue; but such leases were abolished in the area from which this case comes long ago. It is true that this lease is called a Lambardari lease but the mere name will not matter and we have to see whether this was a lease of landthe circumstances we cannot agree with the learned Judicial Commissioner that the transaction evidenced by this lease is a mere Ijara in the sense explained above and the appellant is a mere Ijaredar who comes within the meaning of that word in S. 2(1)(c). The lease in our opinion confers rights in lands and is much more than an Ijara. In the circumstances the appellant cannot be held to be a mere Ijaredar covered by the definition of that word as used in S. 2(1)(c). The case of the appellant in our opinion is similar to the case put forward in Petn. No. 392 of 1954 with respect to Khandela estate (see Thakur Amar Singhji v. State of Rajasthan, (1955) 2 SCR 303 at p. 367 : ( (S) AIR 1955 SC 504 at p. 537). There also was an Ijara or lease on payment of an annual assessment of Rs. 80,001 and it was held that it was not covered by the terms of the Rajasthan Land reforms and Resumption of Jagirs Act. The present case in our opinion is similar and we are of opinion that the lease granted in this case cannot make the appellant a mere Ijaredar within the meaning of that word in S. 2(1)(c). | 1 | 2,149 | 779 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
"Ijaredar" has been used in the section, it must take colour from it and cannot be held to mean any lease of land of whatever kind. In the setting in which the word is used it should in our opinion be confined to a person holding an Ijara which is a lease or farm of land revenue or other proprietary right as distinguished from other kinds of leases of land.5. The next question is whether the lease in this particular case is a lease of land revenue or other proprietary right as distinguished from lease of land of other kinds. The lease in the present case is called a Lambardari lease, though it appears that the system of Lambardari leases was abolished in the State of Panna long ago as appears from paragraph (2) of Chap. II of the Revenue Administration Manual of the Panna State prepared by J. E. Goudge, Settlement Officer, Bundelkhand State in 1907. It has been stated in that paragraph that "the system of Lambardari leases has been abolished and rents will in future be realised by the Darbar direct from each tenant through the zamindars of the village." Zamindar in that area is a petty village official for the purpose of collecting rents and has no interest in the land from which he collects rent. It does appear from this paragraph that a Lambardari lease originally was a kind of lease of land revenue; but such leases were abolished in the area from which this case comes long ago. It is true that this lease is called a Lambardari lease but the mere name will not matter and we have to see whether this was a lease of land revenue.6. This brings us to the terms of the lease. The lease starts by saying that the villages given in lease have an average annual income of Rs. 1,242/4/-payable in two instalments in the months of June and December. The lease is to last for thirty years and the lessee has to pay the entire amount (namely, Rs. 1,242/4-) as lease money which will remain the same for the whole period of thirty years. The lease also provides that if within this time any settlement is made and the revenue is increased or the Lambardar increases the income by inhabiting the villages, the Lambardar herself will be entitled to reap this additional benefit. The lease further provides that if for any reason the rent of land is decreased then the Lambardar will not be entitled to any decrease in the lease money. It is clear from these terms that the Lambardar stood to gain nothing by this lease and no part of the land revenue was left to her except where there was an increase in revenue on account of a future settlement. The lease further provides that if during the period of lease the Lambardar makes any improvements, i.e., plants groves and orchards, makes bandhs and bandhis (i.e., large and small dams) she will be entitled at the end of the lease to sell or mortgage them and the benefit of the improvements will go to her. Lastly-and this is an important term of the lease-it is provided that the lessees right to mortgage and sell the lands will be governed by the laws of the State and if the law is amended afterwards it will be governed by the amended laws. These clauses in the lease clearly show that what the appellant was getting was not merely a lease of land revenue but actual rights in the lands including the right to cultivate them herself. Reading therefore the lease as a whole it does not appear that it is a mere lease of land revenue or other proprietary right. It is something more and actually gives the lessee the right to all lands which were not in the actual cultivation of tenants at the time of the lease. The lessee was entitled to make improvements, to plant groves and orchards and to make dams-large and small. She was also entitled to mortgage and sell the lands which she might bring into her own cultivation in accordance with the laws of the State. It is difficult under the circumstances to hold that this was a mere Ijara and the appellant was a mere Ijaredar within the meaning of that word as mentioned above. There is a certain element of lease of land revenue in this lease though that was not likely to bring any profit to the appellant; but the lease is much more than a mere Ijara of this kind and actually confers on the appellant rights in land not in the actual cultivation of the tenants at the time of the lease. In the circumstances we cannot agree with the learned Judicial Commissioner that the transaction evidenced by this lease is a mere Ijara in the sense explained above and the appellant is a mere Ijaredar who comes within the meaning of that word in S. 2(1)(c). The lease in our opinion confers rights in lands and is much more than an Ijara. In the circumstances the appellant cannot be held to be a mere Ijaredar covered by the definition of that word as used in S. 2(1)(c). The case of the appellant in our opinion is similar to the case put forward in Petn. No. 392 of 1954 with respect to Khandela estate (see Thakur Amar Singhji v. State of Rajasthan, (1955) 2 SCR 303 at p. 367 : ( (S) AIR 1955 SC 504 at p. 537). There also was an Ijara or lease on payment of an annual assessment of Rs. 80,001 and it was held that it was not covered by the terms of the Rajasthan Land reforms and Resumption of Jagirs Act. The present case in our opinion is similar and we are of opinion that the lease granted in this case cannot make the appellant a mere Ijaredar within the meaning of that word in S. 2(1)(c).
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4. It is not in dispute that the lands were not granted to the appellant by the Ruler of Panna as a jagir. It is also not in dispute that the appellant was not recognized as a jagirdar under any law, rules, regulations or orders governing jagirdars in force in any part of thethe words used in the inclusive part of the definition have not been defined anywhere in the Act. It appears that some of those words are words of common use while other are not. For example, the Rewa Land Revenue and tenancy Code deals with a Pawaidar, a sub-Pawaidar and Ilakedar who is big Pawaidar. It is not clear whether the other words used in the inclusive part of the definition of "jagirdar" appear in any other laws in force in the various States which amalgamated to form the State of Vindhya Pradesh, though the word "Ubaridar" appears to be somewhat uncommon and must have some special local significance. It will therefore be not unreasonable to hold that where these words used in the inclusive part of the definition appear in any law in force in any part of the State, they must have that meaning; but if they do not appear in any such law they must be given their ordinary meaning. The Judicial Commissioner in his judgment says that "an Ijaredar as such has not been defined under any law relating to land revenue and tenancy in force in any part of Vindhya Pradesh." Therefore, the word "Ijaredar" must be given its ordinary meaning. Now the ordinary meaning of the word "Ijara" from which the word "Ijaredar" is derived is a lease or farm of land revenue or other proprietary right as distinguished from a patta or lease of land for cultivation, though sometimes it is used to indicate just a lease of land of any kind. The question then is what meaning should be given to the word "Ijaredar" in S. 2(1)(c) of the Act. We are of opinion that considering the setting in which the word "Ijaredar" has been used in the section, it must take colour from it and cannot be held to mean any lease of land of whatever kind. In the setting in which the word is used it should in our opinion be confined to a person holding an Ijara which is a lease or farm of land revenue or other proprietary right as distinguished from other kinds of leases oflease in the present case is called a Lambardaridoes appear from this paragraph that a Lambardari lease originally was a kind of lease of land revenue; but such leases were abolished in the area from which this case comes long ago. It is true that this lease is called a Lambardari lease but the mere name will not matter and we have to see whether this was a lease of landthe circumstances we cannot agree with the learned Judicial Commissioner that the transaction evidenced by this lease is a mere Ijara in the sense explained above and the appellant is a mere Ijaredar who comes within the meaning of that word in S. 2(1)(c). The lease in our opinion confers rights in lands and is much more than an Ijara. In the circumstances the appellant cannot be held to be a mere Ijaredar covered by the definition of that word as used in S. 2(1)(c). The case of the appellant in our opinion is similar to the case put forward in Petn. No. 392 of 1954 with respect to Khandela estate (see Thakur Amar Singhji v. State of Rajasthan, (1955) 2 SCR 303 at p. 367 : ( (S) AIR 1955 SC 504 at p. 537). There also was an Ijara or lease on payment of an annual assessment of Rs. 80,001 and it was held that it was not covered by the terms of the Rajasthan Land reforms and Resumption of Jagirs Act. The present case in our opinion is similar and we are of opinion that the lease granted in this case cannot make the appellant a mere Ijaredar within the meaning of that word in S. 2(1)(c).
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British India Corporation Ltd. Vs. Collector Central Excise | petitioner to the consumer was not raised before us. It was mentioned in the petition. An Excise Duty is a duty on production and though according to the economists, it is an indirect tax capable of being passed on to the consumer as part of the price yet the mere passing on of the duty is not its essential characteristic. Even if borne by the producer or manufacturer it does not cease to be a duty of excise. The nature of such a duty was explained in the very case of the Federal Court and subsequently in others of the Federal Court, the Privy Council and this Court, but this ground continues to be taken and we are surprised that it was raised again. 9. The contention that the duty could not be collected before the passing of the Finance Act, 1954, has been the subject of an elaborate discussion in the recently decided case of this Court, Chhotabhai Jetha bhai Patel and Co. v. Union of India, AIR 1962 SC 1006 . It is conceded that in view of the above decision the point is no longer open. 10. It is also conceded that the question whether in calculating the duty ad valorem, the Collector of Excise was justified in including in the price the cost of packing, charges for freight and commission for distribution, or not is a matter for the, decision of the authorities constituted under the Act subject to such appeals and revisions as might lie but not a matter for consideration directly under Article 32 of the Constitution in view of the recent decision of this Court in Smt. Ujjam Bai v. State of U. P., (Civil Misc. Petn. No. 79 of 1959, D/-10-4-1962:) (AIR 1962 SC 1621 ). It may be pointed out that the present petition was filed at a time when the appeal before the Board of Revenue was pending and there was a further right of revision to the Central Government. 11. This leaves over for consideration the challenge under Arts. 14, 19 and 31 of the Constitution. The argument under each of these Articles is based on precisely the same facts viewed from different angles. It is contended that there is a discrimination between big manufacturers of foot-wear and small manufacturers which is not based on any differentia. This discrimination, it is said, leads to the imposition of a heavy tax on the big manufacturers with a corresponding exemption in favour of the small manufacturers giving rise to a competition sufficient to put the big manufacturers out of the market. The tax being illegal the levy amounts to a confiscation of the property of the petitioner. It will thus be seen that the imposition of the duty is first challenged under Art. 14 as a discrimination, next it is challenged under Art. 19 as a deprivation of the right to acquire, hold and dispose of property or to carry on a business or trade and lastly the collection of duty is characterised as a confiscation of property without the authority of law under Art. 31. 12. The argument suffers from a fundamental fallacy in that it assumes that there can be no classification of manufacturers on the basis of the number of workers or the employment of power above a particular horse power. Manufacturers who employ 50 or more workers can be said to form a well-defined class. Manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 H. P. are also a well-defined class. Legislation of this type depending upon the number of workers or the extent of power employed is frequently to be found. The most obvious example is the Factories Act which defines a factory with reference to the employment of a certain number of workers or the employment of power. The contention that size makes no difference is not valid. It is well known that the bigger manufacturers are able to effect economies in their manufacturing process and their out-turn being both large and rapid they are able to undersell small manufacturers. If this were not so mass production would lose all its advantages. No doubt the manufacturers are now required to bear burdens which previously did not exist, like bonus, expenses on labour-welfare etc but still the manufacturers, provided the business is well run, can by mass production offer the same commodity at a competitive price as against small manufacturers and bear the burden as well. Therefore, in imposing the Excise Duty there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily if at all as the big manufacturer. Such a classification on the interests of co-operative societies, cottage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Recently, this Court in the Orient Weaving Mills (P.) Ltd. v. Union of India (Petn. No. 110 of 1961), D/- 28-2-1962: (AIR 1963 SC 98 ) considered a similar argument in relation to an exemption granted to societies working a few looms on co-operative basis as against big companies working hundreds of looms. The exemption was held to be constitutional and the classification of co-operative societies was held to be reasonable. A similar consideration applies in the present case, where the exemption operates in respect of very small manufacturers employing not more than 50 workers and carrying on their manufacturing process with power not in excess of 2 H. P. This affords a protection to small concerns who, if they were made to pay the duty, would have to go out of business. In our judgment the Schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted. If the law is held to be valid the attack under Arts. 19 and 31 must also fail. | 0[ds]12. The argument suffers from a fundamental fallacy in that it assumes that there can be no classification of manufacturers on the basis of the number of workers or the employment of power above a particular horse power. Manufacturers who employ 50 or more workers can be said to form a well-defined class. Manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 H. P. are also a well-defined class. Legislation of this type depending upon the number of workers or the extent of power employed is frequently to be found. The most obvious example is the Factories Act which defines a factory with reference to the employment of a certain number of workers or the employment of power. The contention that size makes no difference is not valid. It is well known that the bigger manufacturers are able to effect economies in their manufacturing process and their out-turn being both large and rapid they are able to undersell small manufacturers. If this were not so mass production would lose all its advantages. No doubt the manufacturers are now required to bear burdens which previously did not exist, like bonus, expenses on labour-welfare etc but still the manufacturers, provided the business is well run, can by mass production offer the same commodity at a competitive price as against small manufacturers and bear the burden as well. Therefore, in imposing the Excise Duty there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily if at all as the big manufacturer. Such a classification on the interests of co-operative societies, cottage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Recently, this Court in the Orient Weaving Mills (P.) Ltd. v. Union of India (Petn. No. 110 of 1961), D/- 28-2-1962: (AIR 1963 SC 98 ) considered a similar argument in relation to an exemption granted to societies working a few looms on co-operative basis as against big companies working hundreds of looms. The exemption was held to be constitutional and the classification of co-operative societies was held to be reasonable. A similar consideration applies in the present case, where the exemption operates in respect of very small manufacturers employing not more than 50 workers and carrying on their manufacturing process with power not in excess of 2 H. P. This affords a protection to small concerns who, if they were made to pay the duty, would have to go out of business. In our judgment the Schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted. If the law is held to be valid the attack under Arts. 19 and 31 must also fail. | 0 | 2,395 | 527 | ### 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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petitioner to the consumer was not raised before us. It was mentioned in the petition. An Excise Duty is a duty on production and though according to the economists, it is an indirect tax capable of being passed on to the consumer as part of the price yet the mere passing on of the duty is not its essential characteristic. Even if borne by the producer or manufacturer it does not cease to be a duty of excise. The nature of such a duty was explained in the very case of the Federal Court and subsequently in others of the Federal Court, the Privy Council and this Court, but this ground continues to be taken and we are surprised that it was raised again. 9. The contention that the duty could not be collected before the passing of the Finance Act, 1954, has been the subject of an elaborate discussion in the recently decided case of this Court, Chhotabhai Jetha bhai Patel and Co. v. Union of India, AIR 1962 SC 1006 . It is conceded that in view of the above decision the point is no longer open. 10. It is also conceded that the question whether in calculating the duty ad valorem, the Collector of Excise was justified in including in the price the cost of packing, charges for freight and commission for distribution, or not is a matter for the, decision of the authorities constituted under the Act subject to such appeals and revisions as might lie but not a matter for consideration directly under Article 32 of the Constitution in view of the recent decision of this Court in Smt. Ujjam Bai v. State of U. P., (Civil Misc. Petn. No. 79 of 1959, D/-10-4-1962:) (AIR 1962 SC 1621 ). It may be pointed out that the present petition was filed at a time when the appeal before the Board of Revenue was pending and there was a further right of revision to the Central Government. 11. This leaves over for consideration the challenge under Arts. 14, 19 and 31 of the Constitution. The argument under each of these Articles is based on precisely the same facts viewed from different angles. It is contended that there is a discrimination between big manufacturers of foot-wear and small manufacturers which is not based on any differentia. This discrimination, it is said, leads to the imposition of a heavy tax on the big manufacturers with a corresponding exemption in favour of the small manufacturers giving rise to a competition sufficient to put the big manufacturers out of the market. The tax being illegal the levy amounts to a confiscation of the property of the petitioner. It will thus be seen that the imposition of the duty is first challenged under Art. 14 as a discrimination, next it is challenged under Art. 19 as a deprivation of the right to acquire, hold and dispose of property or to carry on a business or trade and lastly the collection of duty is characterised as a confiscation of property without the authority of law under Art. 31. 12. The argument suffers from a fundamental fallacy in that it assumes that there can be no classification of manufacturers on the basis of the number of workers or the employment of power above a particular horse power. Manufacturers who employ 50 or more workers can be said to form a well-defined class. Manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 H. P. are also a well-defined class. Legislation of this type depending upon the number of workers or the extent of power employed is frequently to be found. The most obvious example is the Factories Act which defines a factory with reference to the employment of a certain number of workers or the employment of power. The contention that size makes no difference is not valid. It is well known that the bigger manufacturers are able to effect economies in their manufacturing process and their out-turn being both large and rapid they are able to undersell small manufacturers. If this were not so mass production would lose all its advantages. No doubt the manufacturers are now required to bear burdens which previously did not exist, like bonus, expenses on labour-welfare etc but still the manufacturers, provided the business is well run, can by mass production offer the same commodity at a competitive price as against small manufacturers and bear the burden as well. Therefore, in imposing the Excise Duty there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily if at all as the big manufacturer. Such a classification on the interests of co-operative societies, cottage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Recently, this Court in the Orient Weaving Mills (P.) Ltd. v. Union of India (Petn. No. 110 of 1961), D/- 28-2-1962: (AIR 1963 SC 98 ) considered a similar argument in relation to an exemption granted to societies working a few looms on co-operative basis as against big companies working hundreds of looms. The exemption was held to be constitutional and the classification of co-operative societies was held to be reasonable. A similar consideration applies in the present case, where the exemption operates in respect of very small manufacturers employing not more than 50 workers and carrying on their manufacturing process with power not in excess of 2 H. P. This affords a protection to small concerns who, if they were made to pay the duty, would have to go out of business. In our judgment the Schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted. If the law is held to be valid the attack under Arts. 19 and 31 must also fail.
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12. The argument suffers from a fundamental fallacy in that it assumes that there can be no classification of manufacturers on the basis of the number of workers or the employment of power above a particular horse power. Manufacturers who employ 50 or more workers can be said to form a well-defined class. Manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 H. P. are also a well-defined class. Legislation of this type depending upon the number of workers or the extent of power employed is frequently to be found. The most obvious example is the Factories Act which defines a factory with reference to the employment of a certain number of workers or the employment of power. The contention that size makes no difference is not valid. It is well known that the bigger manufacturers are able to effect economies in their manufacturing process and their out-turn being both large and rapid they are able to undersell small manufacturers. If this were not so mass production would lose all its advantages. No doubt the manufacturers are now required to bear burdens which previously did not exist, like bonus, expenses on labour-welfare etc but still the manufacturers, provided the business is well run, can by mass production offer the same commodity at a competitive price as against small manufacturers and bear the burden as well. Therefore, in imposing the Excise Duty there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily if at all as the big manufacturer. Such a classification on the interests of co-operative societies, cottage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Recently, this Court in the Orient Weaving Mills (P.) Ltd. v. Union of India (Petn. No. 110 of 1961), D/- 28-2-1962: (AIR 1963 SC 98 ) considered a similar argument in relation to an exemption granted to societies working a few looms on co-operative basis as against big companies working hundreds of looms. The exemption was held to be constitutional and the classification of co-operative societies was held to be reasonable. A similar consideration applies in the present case, where the exemption operates in respect of very small manufacturers employing not more than 50 workers and carrying on their manufacturing process with power not in excess of 2 H. P. This affords a protection to small concerns who, if they were made to pay the duty, would have to go out of business. In our judgment the Schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted. If the law is held to be valid the attack under Arts. 19 and 31 must also fail.
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Jaswant Sugar Mills Ltd. Meerut Vs. Lakshmi Chand & Others | tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly." 15. Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate Tribunals for hearing appeals from the awards or decisions of industrial tribunal in accordance with the provisions of the Act; and "industrial tribunal" is defined in S. 2(c) as meaning -"(i) any industrial tribunal constituted under the Industrial Disputes Act, 1947 (XIV of 1947); or (ii) in relation to cases where an appeal lies from any court, wages board or other authority set up in any State under any law relating to the adjudication of industrial disputes made, whether before or after the commencement of this Act, by the legislative authority of the State to any other court, board or authority exercising appellate jurisdiction within the State; or (iii) in relation to other cases, where no appeal lies under any law referred to in Sub-cl. (ii), any court, board or other authority set up in any State under such law." 16. A conciliation officer functioning under Cl. 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, his authority being derived from the appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Nor is any provision made in the Uttar Pradesh Industrial Disputes Act, 1947, or orders made thereunder for an appeal to any similar authority against the direction made by the conciliation officer in exercise of the power conferred under Cl. 29. An appeal lies under S.4 of Act 48 of 1950, against the direction of a conciliation officer only if he is a Court or authority. The legislature has used in Cl. (iii) the expression "any court, board or other authority"; the context indicates that the word "other authority" must be read ejusdem generis with court or board. The right to appeal conferred by S. 4 is only against awards or decisions, and a conciliation officer makes no award, nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the party before him. He is not invested with power to adjudicate industrial disputes. It is true that he is constituted under a statute which relates to adjudication of industrial disputes, but his functions are purely incidental to industrial adjudication. His power is not of the same character that of an industrial court or board or tribunal. In our view, an "authority" under S. 2(c)(iii) to be an industrial tribunal must be a body constituted for the purpose of adjudication of industrial disputes under a law made by a State. The conciliation officer not having been invested with any such power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70]. | 0[ds]A conciliation officer functioning under Cl. 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, his authority being derived from the appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Nor is any provision made in the Uttar Pradesh Industrial Disputes Act, 1947, or orders made thereunder for an appeal to any similar authority against the direction made by the conciliation officer in exercise of the power conferred under Cl. 29. An appeal lies under S.4 of Act 48 of 1950, against the direction of a conciliation officer only if he is a Court or authority. The legislature has used in Cl. (iii) the expression "any court, board or other authority"; the context indicates that the word "other authority" must be read ejusdem generis with court or board. The right to appeal conferred by S. 4 is only against awards or decisions, and a conciliation officer makes no award, nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the party before him. He is not invested with power to adjudicate industrial disputes. It is true that he is constituted under a statute which relates to adjudication of industrial disputes, but his functions are purely incidental to industrial adjudication. His power is not of the same character that of an industrial court or board or tribunal. In our view, an "authority" under S. 2(c)(iii) to be an industrial tribunal must be a body constituted for the purpose of adjudication of industrial disputes under a law made by a State. The conciliation officer not having been invested with any such power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70]Reverting to the order issued by the Governor of Uttar Pradesh in 1954 it is manifest that no procedure is prescribed for the investigation to be made by the conciliation officer, under Cl. 29. He is not required to sit in public; no formal pleadings are contemplated to be tendered; he is not empowered to compel attendance of witnesses, nor is he restricted in making an enquiry to evidence which the parties may bring before him. The conciliation officer is against not capable of delivering a determinative judgment or award affecting the rights and obligations of parties. He is not invested with powers similar to those of the civil court under the Code of Civil procedure for enforcing attendance of any person and examining him on oath, compelling production of documents, issuing commissions for the examination of witnesses and other matters. He is concerned in granting leave to determine whether there is a prima facie case for dismissal or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; he has not to decide whether the proposed step of discharge or dismissal of the employee was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according to contract between the parties. The conciliation officer has undoubtedly to act judicially in dealing with an application under Cl. 29, but he is not invested with the judicial power of the State; he cannot, therefore be regarded as a "tribunal" within the meaning of Art. 136 of the Constitution.We are not in this case called upon to decide whether the proceeding for a writ may lie under Art. 226 of the Constitution before a competent High Court against the order of the conciliation officer. We are concerned only to deal with the limited question whether he is a "tribunal" within the meaning of Art. 136 of the Constitution having the attributes of the investment of the judicial powers of the State. It may be pertinent to note that provisions similar to Cl. 29 of the order issued under the Uttar Pradesh Industrial Disputes Act, 1947, are to be found in S.33 of the Industrial Disputes Act, 1947. By virtue of S. 33 an employer during the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly."Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate | 0 | 7,624 | 1,421 | ### Instruction:
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tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly." 15. Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate Tribunals for hearing appeals from the awards or decisions of industrial tribunal in accordance with the provisions of the Act; and "industrial tribunal" is defined in S. 2(c) as meaning -"(i) any industrial tribunal constituted under the Industrial Disputes Act, 1947 (XIV of 1947); or (ii) in relation to cases where an appeal lies from any court, wages board or other authority set up in any State under any law relating to the adjudication of industrial disputes made, whether before or after the commencement of this Act, by the legislative authority of the State to any other court, board or authority exercising appellate jurisdiction within the State; or (iii) in relation to other cases, where no appeal lies under any law referred to in Sub-cl. (ii), any court, board or other authority set up in any State under such law." 16. A conciliation officer functioning under Cl. 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, his authority being derived from the appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Nor is any provision made in the Uttar Pradesh Industrial Disputes Act, 1947, or orders made thereunder for an appeal to any similar authority against the direction made by the conciliation officer in exercise of the power conferred under Cl. 29. An appeal lies under S.4 of Act 48 of 1950, against the direction of a conciliation officer only if he is a Court or authority. The legislature has used in Cl. (iii) the expression "any court, board or other authority"; the context indicates that the word "other authority" must be read ejusdem generis with court or board. The right to appeal conferred by S. 4 is only against awards or decisions, and a conciliation officer makes no award, nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the party before him. He is not invested with power to adjudicate industrial disputes. It is true that he is constituted under a statute which relates to adjudication of industrial disputes, but his functions are purely incidental to industrial adjudication. His power is not of the same character that of an industrial court or board or tribunal. In our view, an "authority" under S. 2(c)(iii) to be an industrial tribunal must be a body constituted for the purpose of adjudication of industrial disputes under a law made by a State. The conciliation officer not having been invested with any such power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70].
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power, he cannot be regarded as an "authority" within the meaning of S. 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act. The labour Appellate Tribunal has consistently held, and we think rightly, that an appeal against the order of a conciliator is not maintainable under S.4 of the Industrial Disputes (Appellate Tribunal) Act - vide Sassoon and Alliance Silk Mills Company, Ltd., and another v. Mill Mazdoor Sabha and others [1955 - I L.L.J. 70]Reverting to the order issued by the Governor of Uttar Pradesh in 1954 it is manifest that no procedure is prescribed for the investigation to be made by the conciliation officer, under Cl. 29. He is not required to sit in public; no formal pleadings are contemplated to be tendered; he is not empowered to compel attendance of witnesses, nor is he restricted in making an enquiry to evidence which the parties may bring before him. The conciliation officer is against not capable of delivering a determinative judgment or award affecting the rights and obligations of parties. He is not invested with powers similar to those of the civil court under the Code of Civil procedure for enforcing attendance of any person and examining him on oath, compelling production of documents, issuing commissions for the examination of witnesses and other matters. He is concerned in granting leave to determine whether there is a prima facie case for dismissal or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; he has not to decide whether the proposed step of discharge or dismissal of the employee was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according to contract between the parties. The conciliation officer has undoubtedly to act judicially in dealing with an application under Cl. 29, but he is not invested with the judicial power of the State; he cannot, therefore be regarded as a "tribunal" within the meaning of Art. 136 of the Constitution.We are not in this case called upon to decide whether the proceeding for a writ may lie under Art. 226 of the Constitution before a competent High Court against the order of the conciliation officer. We are concerned only to deal with the limited question whether he is a "tribunal" within the meaning of Art. 136 of the Constitution having the attributes of the investment of the judicial powers of the State. It may be pertinent to note that provisions similar to Cl. 29 of the order issued under the Uttar Pradesh Industrial Disputes Act, 1947, are to be found in S.33 of the Industrial Disputes Act, 1947. By virtue of S. 33 an employer during the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute is prohibited save with the express permission in writing of the authority before which the proceeding is pending, from altering, to the prejudice of the workmen concerned in such a dispute, the conditions of service applicable to them immediately before the commencement of the proceeding and from discharging or punishing, whether dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute. Both the enactments place restrictions upon the power of the employer to terminate the employment during the pendency of a dispute in which the employer and employee are concerned, and which is pending before a statutory authority. But whereas under Cl. 29 the power to grant permission is exercisable only by the conciliation officer, the power under S. 33 is exercisable by the authority before whom the proceeding is pending. Section33A of the Industrial Disputes Act provides, in so far as it is material, that"where an employer contravenes the provisions of S. 33 during the pendency of proceeding before a labour court, tribunal or national tribunal, any employee aggrieved by such contravention, may make a complain in writing, in the prescribed manner to such labour court, tribunal or national tribunal and on receipt of such complaint that labour court, tribunal or national tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly."Contravention by an employer of the provisions of S. 33 when the proceeding is pending before the conciliation officer or the board does not attract S. 33A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of S. 33A. Action taken by an employer during the pendency of conciliation proceedings contrary to S. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an industrial tribunal. For breach of S.33 of the Industrial Disputes Act or Cl. 29 of the order by the Governor of Uttar Pradesh no penalty may be imposed by the conciliation officer. It is thus manifest that the conciliation officer does not hold the status of an industrial tribunal in exercising powers under S.33 of the Industrial Disputes Act or Cl. 29 of the Uttar Pradesh order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not competent against the direction given by the conciliation officer exercising power under Cl. 29 of the order issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947.The question whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950, does not present much difficulty in its solution. By S.4 of Act 48 of 1950, the Central Government is authorized to constitute Labour Appellate
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Maharaj Kumar Tokendra Bir Singh Vs. Secretary To The Government of India. Ministry of Home Affairs & Another | purpose of avoiding unnecessary litigation, so in the case of applications made under S. 87B government may reasonably and legitimately try to see if the institution of the suits can be avoided by asking the Ruler of a former Indian State to consider the claim and settle it amicably without litigation. Section 80 is intended and may in some cases, lead to settlement of disputes where the government is satisfied that the claim intended to be made by the litigant is well-founded. Section 87B may also achieve the same result. It is, of course true that under S. 80 there is no question of any consent or sanction being given as there is in S. 87B; but we have referred to S. 80 in this context to indicate one possible purpose which S. 87B, like S. 80, may serve. That is another aspect of the matter which has to be borne in mind. 10. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are not partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have no share therein. That is why it was decided not to accord consent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitioner. 11. A similar approach of adjudicating upon the merits of the claim made by the petitioner appears to have been adopted by the respondent in respect of another matter. The petitioner in his intended plaint has alleged that when the Central Government accorded approval to the inventory made by the Maharaja of Manipur, it had specifically stated that the said approval was without prejudice to the rights of third parties, and the petitioner contends that the rights of third parties thus saved include the rights of the Maharajas coparceners like the petitioner. The respondents affidavit shows that it does accept this construction of the communication addressed by the Central Government to the Maharaja when approval was accorded to the inventory in question. The affidavit says that the rights of third parties mentioned therein do not refer to the coparceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was not even open to it to decide that dispute when it considered the question as to whether consent should be accorded to the petitioners suit or not. 12. It is thus clear that the conditional and partial consent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord consent or to refuse to accord such consent; it is not open to the Central Government to impose any condition on such consent, or to accord consent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose conditions in granting consent, it would virtually be conferring jurisdiction on the Central Government to adjudicate upon the dispute; and that is not the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded consent to the petitioner to file his suit and when that is done, the power conferred on the Central Government by S. 87B has been exercised. The further direction contained in the order that consent would not be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel no difficulty in reaching this conclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made no attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded consent to the entire suit if only it had not persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority conferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No. 87 of 1962 D/- 6-3-1964 : (AIR 1964 SC 1950) out of tune with the equality before law which is guaranteed by Art. 14; and it may even affect the litigants fundamental rights under Art. 19(1)(f) and (g), and so, it would be necessary for the courts to examine the validity of the orders passed under S. 87B whereby consent has been refused in part only, with meticulous care. That is why we are disposed to hold that in the circumstances of this case, and having regard to the statements made in the affidavit filed by the respondent, the order passed by the respondent should be construed as an order according consent to the institution of the suit which the petitioner proposes to file and treat the latter portion of the order in regard to the properties described in Schedules B, C, D and X as being invalid. | 1[ds]This definition is clearly misconceived. This definition prescribed by Art. 366(22) is an inclusive definition and its latter part takes in successors of Rulers who satisfy the test of its first part and so, the minor Maharaja in question who has been recognised by the President as the successor of his deceased father, must be held to be a Ruler under Art. 366(22) and as such, is entitled to claim the status of a Ruler of the former State of Manipur under S. 87B (2) (b)In our opinion, if this is the approach which is invariably adopted by the Central Government in dealing with applications for consent under S. 87B, no serious grievance can be legitimately made. It is plain that S. 87B is intended substantially to save the Rulers of former Indian States from harassment which would be caused by the institution of frivolous suits; excepting cases where the claims appear to be frivolous prima facie, the Central Government should normally accord consent to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and triable issues between them and the Rulers sought to be sued. Normally, it is not the function of the Central Government to attempt to adjudicate upon the merits of the claim intended to be made by the litigants in their proposed suits; that is the function of civil courts of competent jurisdiction, and so, the Central Government should not attempt to assume the jurisdiction of a civil court and decide whether a claim is well-founded or not before according consent to the institution of the suit. That is one aspect of the matter which must be borne in mind in dealing with the petitioners grievance10. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are not partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have no share therein. That is why it was decided not to accord consent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitionerThe affidavit says that the rights of third parties mentioned therein do not refer to the coparceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was not even open to it to decide that dispute when it considered the question as to whether consent should be accorded to the petitioners suit or not12. It is thus clear that the conditional and partial consent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord consent or to refuse to accord such consent; it is not open to the Central Government to impose any condition on such consent, or to accord consent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose conditions in granting consent, it would virtually be conferring jurisdiction on the Central Government to adjudicate upon the dispute; and that is not the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded consent to the petitioner to file his suit and when that is done, the power conferred on the Central Government by S. 87B has been exercised. The further direction contained in the order that consent would not be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel no difficulty in reaching this conclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made no attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded consent to the entire suit if only it had not persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority conferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No. 87 of 1962 D/- 6-3-1964 : (AIR 1964 SC 1950) out of tune with the equality before law which is guaranteed by Art. 14; and it may even affect the litigants fundamental rights under Art. 19(1)(f) and (g), and so, it would be necessary for the courts to examine the validity of the orders passed under S. 87B whereby consent has been refused in part only, with meticulous care. That is why we are disposed to hold that in the circumstances of this case, and having regard to the statements made in the affidavit filed by the respondent, the order passed by the respondent should be construed as an order according consent to the institution of the suit which the petitioner proposes to file and treat the latter portion of the order in regard to the properties described in Schedules B, C, D and X as being invalid. | 1 | 3,371 | 1,113 | ### Instruction:
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purpose of avoiding unnecessary litigation, so in the case of applications made under S. 87B government may reasonably and legitimately try to see if the institution of the suits can be avoided by asking the Ruler of a former Indian State to consider the claim and settle it amicably without litigation. Section 80 is intended and may in some cases, lead to settlement of disputes where the government is satisfied that the claim intended to be made by the litigant is well-founded. Section 87B may also achieve the same result. It is, of course true that under S. 80 there is no question of any consent or sanction being given as there is in S. 87B; but we have referred to S. 80 in this context to indicate one possible purpose which S. 87B, like S. 80, may serve. That is another aspect of the matter which has to be borne in mind. 10. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are not partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have no share therein. That is why it was decided not to accord consent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitioner. 11. A similar approach of adjudicating upon the merits of the claim made by the petitioner appears to have been adopted by the respondent in respect of another matter. The petitioner in his intended plaint has alleged that when the Central Government accorded approval to the inventory made by the Maharaja of Manipur, it had specifically stated that the said approval was without prejudice to the rights of third parties, and the petitioner contends that the rights of third parties thus saved include the rights of the Maharajas coparceners like the petitioner. The respondents affidavit shows that it does accept this construction of the communication addressed by the Central Government to the Maharaja when approval was accorded to the inventory in question. The affidavit says that the rights of third parties mentioned therein do not refer to the coparceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was not even open to it to decide that dispute when it considered the question as to whether consent should be accorded to the petitioners suit or not. 12. It is thus clear that the conditional and partial consent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord consent or to refuse to accord such consent; it is not open to the Central Government to impose any condition on such consent, or to accord consent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose conditions in granting consent, it would virtually be conferring jurisdiction on the Central Government to adjudicate upon the dispute; and that is not the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded consent to the petitioner to file his suit and when that is done, the power conferred on the Central Government by S. 87B has been exercised. The further direction contained in the order that consent would not be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel no difficulty in reaching this conclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made no attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded consent to the entire suit if only it had not persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority conferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No. 87 of 1962 D/- 6-3-1964 : (AIR 1964 SC 1950) out of tune with the equality before law which is guaranteed by Art. 14; and it may even affect the litigants fundamental rights under Art. 19(1)(f) and (g), and so, it would be necessary for the courts to examine the validity of the orders passed under S. 87B whereby consent has been refused in part only, with meticulous care. That is why we are disposed to hold that in the circumstances of this case, and having regard to the statements made in the affidavit filed by the respondent, the order passed by the respondent should be construed as an order according consent to the institution of the suit which the petitioner proposes to file and treat the latter portion of the order in regard to the properties described in Schedules B, C, D and X as being invalid.
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definition and its latter part takes in successors of Rulers who satisfy the test of its first part and so, the minor Maharaja in question who has been recognised by the President as the successor of his deceased father, must be held to be a Ruler under Art. 366(22) and as such, is entitled to claim the status of a Ruler of the former State of Manipur under S. 87B (2) (b)In our opinion, if this is the approach which is invariably adopted by the Central Government in dealing with applications for consent under S. 87B, no serious grievance can be legitimately made. It is plain that S. 87B is intended substantially to save the Rulers of former Indian States from harassment which would be caused by the institution of frivolous suits; excepting cases where the claims appear to be frivolous prima facie, the Central Government should normally accord consent to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and triable issues between them and the Rulers sought to be sued. Normally, it is not the function of the Central Government to attempt to adjudicate upon the merits of the claim intended to be made by the litigants in their proposed suits; that is the function of civil courts of competent jurisdiction, and so, the Central Government should not attempt to assume the jurisdiction of a civil court and decide whether a claim is well-founded or not before according consent to the institution of the suit. That is one aspect of the matter which must be borne in mind in dealing with the petitioners grievance10. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are not partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have no share therein. That is why it was decided not to accord consent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitionerThe affidavit says that the rights of third parties mentioned therein do not refer to the coparceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was not even open to it to decide that dispute when it considered the question as to whether consent should be accorded to the petitioners suit or not12. It is thus clear that the conditional and partial consent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord consent or to refuse to accord such consent; it is not open to the Central Government to impose any condition on such consent, or to accord consent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose conditions in granting consent, it would virtually be conferring jurisdiction on the Central Government to adjudicate upon the dispute; and that is not the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded consent to the petitioner to file his suit and when that is done, the power conferred on the Central Government by S. 87B has been exercised. The further direction contained in the order that consent would not be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel no difficulty in reaching this conclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made no attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded consent to the entire suit if only it had not persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority conferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No. 87 of 1962 D/- 6-3-1964 : (AIR 1964 SC 1950) out of tune with the equality before law which is guaranteed by Art. 14; and it may even affect the litigants fundamental rights under Art. 19(1)(f) and (g), and so, it would be necessary for the courts to examine the validity of the orders passed under S. 87B whereby consent has been refused in part only, with meticulous care. That is why we are disposed to hold that in the circumstances of this case, and having regard to the statements made in the affidavit filed by the respondent, the order passed by the respondent should be construed as an order according consent to the institution of the suit which the petitioner proposes to file and treat the latter portion of the order in regard to the properties described in Schedules B, C, D and X as being invalid.
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Commissioner Of Income Taxgujarat Iii, Ahmedabad & Another Vs. Kurji Jinabhai Kotecha | gains of business, profession or vocation, any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no other head of income shall be carried forward to the following year, and (i) where the loss was sustained by him in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year ; (ii) where the loss was sustained by him in any other business, profession or vocation, it shall be set off against the profits and gains, if any, of any business, profession or vocation carried on by him in that year : provided that the business, profession or vocation in which the loss was originally sustained continued to be carried on by him in that year ; and (iii) if the loss in either case cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following year and so on but no loss shall be so carried forward for more than eight years... " 5. In the instant case there is no dispute about the following findings of facts: "The assessee sustained losses in the relevant accounting year amounting to Rs. 73, 348. This figure was arrived at on a legitimate computation under section 10(2) of the Act. No further question survives for a recomputation of the income under section 10(2) of the Act in this case. The only question that remains is as to whether the loss of Rs. 31, 745 can be set off against other profits in the previous year. This is the first question in the reference. This question has to be answered in the negative in view of the Kothari decision [1971] 82 ITR 794 (SC). The hedging loss being in respect of a banned contract under section 15(4) of the Forward Contracts (Regulation) Act, 1952, cannot be set off against the profits of other business of the previous yearThe second question is with regard to the assessees claim for entitlement to carry forward the speculation loss of Rs. 41, 603 to the next year. It is also admitted that the contract for speculation in the commodity in question is banned under the Forward Contracts (Regulation) Act, 1952. It also appears that the said loss could not be set off in the previous year against profit in the same business in that year. The assessee contends that this loss should be allowed to be carried forward under section 24(2) of the Act. To allow such a claim is to permit a benefit of adjustment of loss from an illegal business to spill over and continue in the following year even in a lawful speculative business. A speculative business which is carried on in the following year must be a business of lawful speculation pertaining to lawful and enforceable contracts. The assessee carrying on a lawful speculative business in the following year cannot derive benefit by carrying forward and setting off a loss from an illegal speculative business of the earlier year. Law will assume an illegal business to die out of existence with all its losses to the assessee in the year of loss itself. The assessee can derive no benefit on account of the unlawful business in the following year. The matter will be different if a lawful speculative business after incurring loss is discontinued and loss therefrom is carried forward for set off against any other lawful speculative business in the following year. This is the true legal effect of section 24(2)(i) of the Act in this case." 6. It is inconceivable that law can permit an illegal activity to be carried on from which a benefit could be obtained. The concept of carry forward is not the same thing as the setting off of loss in a particular illegal business against profit of that illegal business in a particular year. The two concepts have to be kept distinctly separate even in a taxing statute. There is no express warrant for the submission either under section 24(2) or under any other provision of the Act, far less on general principlesIt is true that by earning income from illegal trading activity the income does not get tainted so far as exigibility to tax is concerned. While computing income from illegal activity in a particular year all losses incurred in earning that particular income are also taken into account for computation of real profits even in the illegal business. That does not mean that fines imposed on the illegal activities detected, prosecuted and punished or otherwise penalised, will be taken into account for ascertainment of real profits. There is, therefore, a marked distinction between computation of a particular years profit from illegal trading activity and carry forward of a loss to set it off against income in subsequent years even assuming that such illegal activity is continued against the provisions of law. No illegal activity can be perpetuated under any provisions of law nor benefit out of it. Law will miss its paramount object if it is not consistent with morality and any interpretation by courts cannot lead to a result where continuation of illegal activity or benefit attached to it is given recognition. 7. The second question, therefore, must be answered in the negative and against the assessee. 8. | 1[ds]This question has to be answered in the negative in view of the Kothari decision [1971] 82 ITR 794 (SC). The hedging loss being in respect of a banned contract under section 15(4) ofthe Forward Contracts (Regulation) Act,, cannot be set off against the profits of other business of the previous yearThe second question is with regard to the assessees claim for entitlement to carry forward the speculation loss of Rs. 41, 603 to the next year. It is also admitted that the contract for speculation in the commodity in question is banned underthe Forward Contracts (Regulation) Act,. It also appears that the said loss could not be set off in the previous year against profit in the same business in that year.The assessee contends that this loss should be allowed to be carried forward under section 24(2) of the Act.To allow such a claim is to permit a benefit of adjustment of loss from an illegal business to spill over and continue in the following year even in a lawful speculative business. A speculative business which is carried on in the following year must be a business of lawful speculation pertaining to lawful and enforceable contracts. The assessee carrying on a lawful speculative business in the following year cannot derive benefit by carrying forward and setting off a loss from an illegal speculative business of the earlier year. Law will assume an illegal business to die out of existence with all its losses to the assessee in the year of loss itself. The assessee can derive no benefit on account of the unlawful business in the following year. The matter will be different if a lawful speculative business after incurring loss is discontinued and loss therefrom is carried forward for set off against any other lawful speculative business in the following year. This is the true legal effect of section 24(2)(i) of the Act in this caseIt is inconceivable that law can permit an illegal activity to be carried on from which a benefit could be obtained. The concept of carry forward is not the same thing as the setting off of loss in a particular illegal business against profit of that illegal business in a particular year. The two concepts have to be kept distinctly separate even in a taxing statute. There is no express warrant for the submission either under section 24(2) or under any other provision of the Act, far less on general principlesIt is true that by earning income from illegal trading activity the income does not get tainted so far as exigibility to tax is concerned. While computing income from illegal activity in a particular year all losses incurred in earning that particular income are also taken into account for computation of real profits even in the illegal business. That does not mean that fines imposed on the illegal activities detected, prosecuted and punished or otherwise penalised, will be taken into account for ascertainment of real profits. There is, therefore, a marked distinction between computation of a particular years profit from illegal trading activity and carry forward of a loss to set it off against income in subsequent years even assuming that such illegal activity is continued against the provisions of law. No illegal activity can be perpetuated under any provisions of law nor benefit out of it. Law will miss its paramount object if it is not consistent with morality and any interpretation by courts cannot lead to a result where continuation of illegal activity or benefit attached to it is given recognitionThe second question, therefore, must be answered in the negative and against the assessee | 1 | 2,695 | 662 | ### 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:
gains of business, profession or vocation, any loss sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no other head of income shall be carried forward to the following year, and (i) where the loss was sustained by him in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year ; (ii) where the loss was sustained by him in any other business, profession or vocation, it shall be set off against the profits and gains, if any, of any business, profession or vocation carried on by him in that year : provided that the business, profession or vocation in which the loss was originally sustained continued to be carried on by him in that year ; and (iii) if the loss in either case cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following year and so on but no loss shall be so carried forward for more than eight years... " 5. In the instant case there is no dispute about the following findings of facts: "The assessee sustained losses in the relevant accounting year amounting to Rs. 73, 348. This figure was arrived at on a legitimate computation under section 10(2) of the Act. No further question survives for a recomputation of the income under section 10(2) of the Act in this case. The only question that remains is as to whether the loss of Rs. 31, 745 can be set off against other profits in the previous year. This is the first question in the reference. This question has to be answered in the negative in view of the Kothari decision [1971] 82 ITR 794 (SC). The hedging loss being in respect of a banned contract under section 15(4) of the Forward Contracts (Regulation) Act, 1952, cannot be set off against the profits of other business of the previous yearThe second question is with regard to the assessees claim for entitlement to carry forward the speculation loss of Rs. 41, 603 to the next year. It is also admitted that the contract for speculation in the commodity in question is banned under the Forward Contracts (Regulation) Act, 1952. It also appears that the said loss could not be set off in the previous year against profit in the same business in that year. The assessee contends that this loss should be allowed to be carried forward under section 24(2) of the Act. To allow such a claim is to permit a benefit of adjustment of loss from an illegal business to spill over and continue in the following year even in a lawful speculative business. A speculative business which is carried on in the following year must be a business of lawful speculation pertaining to lawful and enforceable contracts. The assessee carrying on a lawful speculative business in the following year cannot derive benefit by carrying forward and setting off a loss from an illegal speculative business of the earlier year. Law will assume an illegal business to die out of existence with all its losses to the assessee in the year of loss itself. The assessee can derive no benefit on account of the unlawful business in the following year. The matter will be different if a lawful speculative business after incurring loss is discontinued and loss therefrom is carried forward for set off against any other lawful speculative business in the following year. This is the true legal effect of section 24(2)(i) of the Act in this case." 6. It is inconceivable that law can permit an illegal activity to be carried on from which a benefit could be obtained. The concept of carry forward is not the same thing as the setting off of loss in a particular illegal business against profit of that illegal business in a particular year. The two concepts have to be kept distinctly separate even in a taxing statute. There is no express warrant for the submission either under section 24(2) or under any other provision of the Act, far less on general principlesIt is true that by earning income from illegal trading activity the income does not get tainted so far as exigibility to tax is concerned. While computing income from illegal activity in a particular year all losses incurred in earning that particular income are also taken into account for computation of real profits even in the illegal business. That does not mean that fines imposed on the illegal activities detected, prosecuted and punished or otherwise penalised, will be taken into account for ascertainment of real profits. There is, therefore, a marked distinction between computation of a particular years profit from illegal trading activity and carry forward of a loss to set it off against income in subsequent years even assuming that such illegal activity is continued against the provisions of law. No illegal activity can be perpetuated under any provisions of law nor benefit out of it. Law will miss its paramount object if it is not consistent with morality and any interpretation by courts cannot lead to a result where continuation of illegal activity or benefit attached to it is given recognition. 7. The second question, therefore, must be answered in the negative and against the assessee. 8.
### Response:
1
### Explanation:
This question has to be answered in the negative in view of the Kothari decision [1971] 82 ITR 794 (SC). The hedging loss being in respect of a banned contract under section 15(4) ofthe Forward Contracts (Regulation) Act,, cannot be set off against the profits of other business of the previous yearThe second question is with regard to the assessees claim for entitlement to carry forward the speculation loss of Rs. 41, 603 to the next year. It is also admitted that the contract for speculation in the commodity in question is banned underthe Forward Contracts (Regulation) Act,. It also appears that the said loss could not be set off in the previous year against profit in the same business in that year.The assessee contends that this loss should be allowed to be carried forward under section 24(2) of the Act.To allow such a claim is to permit a benefit of adjustment of loss from an illegal business to spill over and continue in the following year even in a lawful speculative business. A speculative business which is carried on in the following year must be a business of lawful speculation pertaining to lawful and enforceable contracts. The assessee carrying on a lawful speculative business in the following year cannot derive benefit by carrying forward and setting off a loss from an illegal speculative business of the earlier year. Law will assume an illegal business to die out of existence with all its losses to the assessee in the year of loss itself. The assessee can derive no benefit on account of the unlawful business in the following year. The matter will be different if a lawful speculative business after incurring loss is discontinued and loss therefrom is carried forward for set off against any other lawful speculative business in the following year. This is the true legal effect of section 24(2)(i) of the Act in this caseIt is inconceivable that law can permit an illegal activity to be carried on from which a benefit could be obtained. The concept of carry forward is not the same thing as the setting off of loss in a particular illegal business against profit of that illegal business in a particular year. The two concepts have to be kept distinctly separate even in a taxing statute. There is no express warrant for the submission either under section 24(2) or under any other provision of the Act, far less on general principlesIt is true that by earning income from illegal trading activity the income does not get tainted so far as exigibility to tax is concerned. While computing income from illegal activity in a particular year all losses incurred in earning that particular income are also taken into account for computation of real profits even in the illegal business. That does not mean that fines imposed on the illegal activities detected, prosecuted and punished or otherwise penalised, will be taken into account for ascertainment of real profits. There is, therefore, a marked distinction between computation of a particular years profit from illegal trading activity and carry forward of a loss to set it off against income in subsequent years even assuming that such illegal activity is continued against the provisions of law. No illegal activity can be perpetuated under any provisions of law nor benefit out of it. Law will miss its paramount object if it is not consistent with morality and any interpretation by courts cannot lead to a result where continuation of illegal activity or benefit attached to it is given recognitionThe second question, therefore, must be answered in the negative and against the assessee
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Ramji Lal Vs. Ram Babu Maheshwari & Another | Annexure B, a poster wherein there is a reference to Annexure A was either published or at any rate published with the consent of the respondent.10. This takes us to Annexure C. In this Court, learned Counsel for the appellant strenuously pressed for our acceptance the petitioners evidence relating to the publication of leaflets similar to Annexure C. Undoubtedly there are scurrilous statements in those leaflets. There is hardly any doubt that the facts mentioned there amount to an attack on the personal character and conduct of Rajesh Sharma. It was not contended before us that that document does not come within the scope of Sec. 123 (4) of the Act. If we believe that such a document was published during the election either by the respondent or by someone with his consent, the election of the respondent will have to be necessarily set aside. But the question for our consideration is whether such a document was published during the election or if it was published during the election or if it was published whether it was published by the respondent or alternatively with his consent.11. Now coming to those leaflets, there is no satisfactory evidence as to their printing. It is not proved in which press the same was printed nor is there any evidence to show as to who got it printed. It is shown in those leaflets that they were printed at "Kailash Printers, Delhi-6". The proprietor of that press has been examined on behalf of the petitioners. He denied that those leaflets were printed at his press or that they were got printed by the respondent. The petitioners Counsel did not seek the permission of the Court to cross-examine that witness to show that he had turned hostile to the petitioners. There is no reason why we should reject the testimony of this witness. The respondent has denied that he got those leaflets printed. No doubt not much reliance can be placed on the testimony of the respondent because he has given false evidence on several aspects of the case but the fact remains that the petitioners have not been able to prove that leaflets similar to Annexure C were got printed at Kailash Printers and further that they were printed at the instance of the respondent.12. The leaflets in question were issued under the signature of one Rishi Ram. One Rishi Ram was examined as R. W. 26. He denied that he got those leaflets printed or published. But there is evidence to show that there was bitter enmity between Rajesh Sharma and R. W. 26. Therefore there was a possibility of his getting those leaflets printed and he may even have distributed some of those leaflets. As R. W. 26 had serious enmity with Rajesh Sharma, he needed no prodding from the respondent for getting those leaflets printed or even for publishing them. If he had got those leaflets printed and published, on his own, as it appears to be likely, the respondent cannot be held responsible for the same.13. The witnesses who speak to the fact that the leaflets in question were published with the consent of the respondent are P. W. 45 Jugal Kishore, P. W. 21 Manmohan Sharma and P. W. 33 R. B. Gupta. We have already considered the evidence of P. W. 45 and come to the conclusion that it is unsafe to place reliance on his testimony. That was also the conclusion reached by the learned trial Judge. P. W. 33, Ram Babu Gupta was a worker of Rajesh Sharma during the election. It is not likely that he would have gone to the office of the respondent on being invited by the respondent and that the respondent would have committed serious election offences in his presence or to his knowledge. He wanted to show that from his childhood he was a member of the R. S. S. and lately he disassociated himself from that organization. This version of his appears to be wholly false. From the facts elicited in his cross-examination, it is clear that he does not know anything about R. S. S. organization in Delhi. He does not know who is its Sanchalak at Delhi or its General Secretary or the Chief Organizer in Delhi State. In our opinion the evidence of this witness has been rightly rejected by the trial court. So far as P. W. 21 is concerned he admits that he was intimate with Rajesh Sharma. His evidence appears to be quite artificial. His story that the respondent was accompanying his workers when they were distributing the leaflets is difficult to accept. We agree with the learned trial Judge that his evidence also is not reliable.14. Large number of witnesses have been examined to show that the leaflets in question were distributed by the Jan Sangh workers P. Ws. 17, 21, 33, 36, 41, 42, 43, 45, 49 and some others. The learned trial Judge after examining their evidence has rejected the same as unreliable. We agree with his conclusion. It is not necessary to examine their evidence in details as their evidence does not show that distribution was made at the instance of the respondent.15. A tame attempt was made to show that even if we hold that there is no satisfactory proof to show that calendar similar to Annexure A and leaflets similar to Annexure C were not proved to have been distributed with the consent of the respondent the very proof of their distribution is sufficient to set aside the election as the distribution of those calendars and leaflets must have vitiated the result of the election. We have earlier come to the conclusion that there is no satisfactory evidence as regards their distribution. Further from the evidence on record it is not possible to hold that they were widely distributed. From the evidence before us it is not possible to come to a positive finding that their distribution is likely to have vitiated the result of the election. | 0[ds]5. The questions arising for decision in this case are essentially questions of fact. Their proof depends on oral evidence.Voluminous evidence has been adduced by the parties in this case in support of their respective contentions. The trial court after carefully examining their evidence has come to the conclusion that the petitioners have failed to establish the corrupt practices pleaded by them. This is essentially a finding of fact. This Court ordinarily does not interfere with the findings of fact reached by the High Court in an election petition particularly when the High Court comes to the conclusion that the corrupt practices pleaded are not established. A charge of commission of corrupt practice is akin to a charge of commission of an offence. No satisfactory ground is made out to persuade us to reopen the findings of fact reached by the High Court. The learned trial Judge had the advantage of seeing the witnesses examined before him. That circumstance must have aided him in the appreciation of the evidence adduced. It is not said that he had ignored any material piece of evidence or his conclusions are unsupported by evidence. All that is said on behalf of the appellants is that the conclusions reached by the trial Judge on the basis of the evidence on record are not correct and that a different view of the evidence is reasonable. That is not a sufficient ground to interfere with the findings reached by the trial Court.The trial court held that this calendar was published during the election. It also came to the conclusion that in that calendar there is an appeal to religious symbols. It is not necessary to go into the correctness of those findings. We shall assume that those findings are correct.may be remembered that the election with which we are concerned is a part of the general election held in 1967. At Delhi it was a combined election for the Lok Sabha, Metropolitan Council and for the Corporation. The Kalan Masjid constituency of the Metropolitan Council was a part of the parliamentary constituency of Chandni Chowk. Included in the Kalan Masjid constituency, there were some Corporation constituencies. It is also in evidence that Jan Sangh had put up candidates for the Chandni Chowk parliamentary constituency, Kalan Masjid Metropolitan Council constituency as well as the Corporation constituencies that formed part of that constituency. Therefore unless there is satisfactory evidence to show that the calendars in question were published by or with the consent of the respondent, the election of the respondent cannot be invalidated. Hence we have to see whether there is satisfactory evidence to show that they were published by the respondent or with his consent.We also agree with the trial court that there is no satisfactory evidence to show that Annexure B, a poster wherein there is a reference to Annexure A was either published or at any rate published with the consent of the respondent.There is hardly any doubt that the facts mentioned there amount to an attack on the personal character and conduct of Rajesh Sharma. It was not contended before us that that document does not come within the scope of Sec. 123 (4) of the Act. If we believe that such a document was published during the election either by the respondent or by someone with his consent, the election of the respondent will have to be necessarily set aside.Now coming to those leaflets, there is no satisfactory evidence as to their printing. It is not proved in which press the same was printed nor is there any evidence to show as to who got it printed. It is shown in those leaflets that they were printed at "Kailash Printers,The proprietor of that press has been examined on behalf of the petitioners. He denied that those leaflets were printed at his press or that they were got printed by the respondent. The petitioners Counsel did not seek the permission of the Court tothat witness to show that he had turned hostile to the petitioners. There is no reason why we should reject the testimony of this witness. The respondent has denied that he got those leaflets printed. No doubt not much reliance can be placed on the testimony of the respondent because he has given false evidence on several aspects of the case but the fact remains that the petitioners have not been able to prove that leaflets similar to Annexure C were got printed at Kailash Printers and further that they were printed at the instance of the respondent.12. The leaflets in question were issued under the signature of one Rishi Ram. One Rishi Ram was examined as R. W. 26. He denied that he got those leaflets printed or published. But there is evidence to show that there was bitter enmity between Rajesh Sharma and R. W. 26. Therefore there was a possibility of his getting those leaflets printed and he may even have distributed some of those leaflets. As R. W. 26 had serious enmity with Rajesh Sharma, he needed no prodding from the respondent for getting those leaflets printed or even for publishing them. If he had got those leaflets printed and published, on his own, as it appears to be likely, the respondent cannot be held responsible for the same.13. The witnesses who speak to the fact that the leaflets in question were published with the consent of the respondent are P. W. 45 Jugal Kishore, P. W. 21 Manmohan Sharma and P. W. 33 R. B. Gupta. We have already considered the evidence of P. W. 45 and come to the conclusion that it is unsafe to place reliance on his testimony. That was also the conclusion reached by the learned trial Judge. P. W. 33, Ram Babu Gupta was a worker of Rajesh Sharma during the election. It is not likely that he would have gone to the office of the respondent on being invited by the respondent and that the respondent would have committed serious election offences in his presence or to his knowledge. He wanted to show that from his childhood he was a member of the R. S. S. and lately he disassociated himself from that organization. This version of his appears to be wholly false. From the facts elicited in hisit is clear that he does not know anything about R. S. S. organization in Delhi. He does not know who is its Sanchalak at Delhi or its General Secretary or the Chief Organizer in Delhi State. In our opinion the evidence of this witness has been rightly rejected by the trial court. So far as P. W. 21 is concerned he admits that he was intimate with Rajesh Sharma. His evidence appears to be quite artificial. His story that the respondent was accompanying his workers when they were distributing the leaflets is difficult to accept. We agree with the learned trial Judge that his evidence also is not reliable.14. Large number of witnesses have been examined to show that the leaflets in question were distributed by the Jan Sangh workers P. Ws. 17, 21, 33, 36, 41, 42, 43, 45, 49 and some others. The learned trial Judge after examining their evidence has rejected the same as unreliable. We agree with his conclusion. It is not necessary to examine their evidence in details as their evidence does not show that distribution was made at the instance of the respondent.15.A tame attempt was made to show that even if we hold that there is no satisfactory proof to show that calendar similar to Annexure A and leaflets similar to Annexure C were not proved to have been distributed with the consent of the respondent the very proof of their distribution is sufficient to set aside the election as the distribution of those calendars and leaflets must have vitiated the result of the election.We have earlier come to the conclusion that there is no satisfactory evidence as regards their distribution. Further from the evidence on record it is not possible to hold that they were widely distributed. From the evidence before us it is not possible to come to a positive finding that their distribution is likely to have vitiated the result of the election. | 0 | 2,894 | 1,464 | ### 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:
Annexure B, a poster wherein there is a reference to Annexure A was either published or at any rate published with the consent of the respondent.10. This takes us to Annexure C. In this Court, learned Counsel for the appellant strenuously pressed for our acceptance the petitioners evidence relating to the publication of leaflets similar to Annexure C. Undoubtedly there are scurrilous statements in those leaflets. There is hardly any doubt that the facts mentioned there amount to an attack on the personal character and conduct of Rajesh Sharma. It was not contended before us that that document does not come within the scope of Sec. 123 (4) of the Act. If we believe that such a document was published during the election either by the respondent or by someone with his consent, the election of the respondent will have to be necessarily set aside. But the question for our consideration is whether such a document was published during the election or if it was published during the election or if it was published whether it was published by the respondent or alternatively with his consent.11. Now coming to those leaflets, there is no satisfactory evidence as to their printing. It is not proved in which press the same was printed nor is there any evidence to show as to who got it printed. It is shown in those leaflets that they were printed at "Kailash Printers, Delhi-6". The proprietor of that press has been examined on behalf of the petitioners. He denied that those leaflets were printed at his press or that they were got printed by the respondent. The petitioners Counsel did not seek the permission of the Court to cross-examine that witness to show that he had turned hostile to the petitioners. There is no reason why we should reject the testimony of this witness. The respondent has denied that he got those leaflets printed. No doubt not much reliance can be placed on the testimony of the respondent because he has given false evidence on several aspects of the case but the fact remains that the petitioners have not been able to prove that leaflets similar to Annexure C were got printed at Kailash Printers and further that they were printed at the instance of the respondent.12. The leaflets in question were issued under the signature of one Rishi Ram. One Rishi Ram was examined as R. W. 26. He denied that he got those leaflets printed or published. But there is evidence to show that there was bitter enmity between Rajesh Sharma and R. W. 26. Therefore there was a possibility of his getting those leaflets printed and he may even have distributed some of those leaflets. As R. W. 26 had serious enmity with Rajesh Sharma, he needed no prodding from the respondent for getting those leaflets printed or even for publishing them. If he had got those leaflets printed and published, on his own, as it appears to be likely, the respondent cannot be held responsible for the same.13. The witnesses who speak to the fact that the leaflets in question were published with the consent of the respondent are P. W. 45 Jugal Kishore, P. W. 21 Manmohan Sharma and P. W. 33 R. B. Gupta. We have already considered the evidence of P. W. 45 and come to the conclusion that it is unsafe to place reliance on his testimony. That was also the conclusion reached by the learned trial Judge. P. W. 33, Ram Babu Gupta was a worker of Rajesh Sharma during the election. It is not likely that he would have gone to the office of the respondent on being invited by the respondent and that the respondent would have committed serious election offences in his presence or to his knowledge. He wanted to show that from his childhood he was a member of the R. S. S. and lately he disassociated himself from that organization. This version of his appears to be wholly false. From the facts elicited in his cross-examination, it is clear that he does not know anything about R. S. S. organization in Delhi. He does not know who is its Sanchalak at Delhi or its General Secretary or the Chief Organizer in Delhi State. In our opinion the evidence of this witness has been rightly rejected by the trial court. So far as P. W. 21 is concerned he admits that he was intimate with Rajesh Sharma. His evidence appears to be quite artificial. His story that the respondent was accompanying his workers when they were distributing the leaflets is difficult to accept. We agree with the learned trial Judge that his evidence also is not reliable.14. Large number of witnesses have been examined to show that the leaflets in question were distributed by the Jan Sangh workers P. Ws. 17, 21, 33, 36, 41, 42, 43, 45, 49 and some others. The learned trial Judge after examining their evidence has rejected the same as unreliable. We agree with his conclusion. It is not necessary to examine their evidence in details as their evidence does not show that distribution was made at the instance of the respondent.15. A tame attempt was made to show that even if we hold that there is no satisfactory proof to show that calendar similar to Annexure A and leaflets similar to Annexure C were not proved to have been distributed with the consent of the respondent the very proof of their distribution is sufficient to set aside the election as the distribution of those calendars and leaflets must have vitiated the result of the election. We have earlier come to the conclusion that there is no satisfactory evidence as regards their distribution. Further from the evidence on record it is not possible to hold that they were widely distributed. From the evidence before us it is not possible to come to a positive finding that their distribution is likely to have vitiated the result of the election.
### Response:
0
### Explanation:
the Chandni Chowk parliamentary constituency, Kalan Masjid Metropolitan Council constituency as well as the Corporation constituencies that formed part of that constituency. Therefore unless there is satisfactory evidence to show that the calendars in question were published by or with the consent of the respondent, the election of the respondent cannot be invalidated. Hence we have to see whether there is satisfactory evidence to show that they were published by the respondent or with his consent.We also agree with the trial court that there is no satisfactory evidence to show that Annexure B, a poster wherein there is a reference to Annexure A was either published or at any rate published with the consent of the respondent.There is hardly any doubt that the facts mentioned there amount to an attack on the personal character and conduct of Rajesh Sharma. It was not contended before us that that document does not come within the scope of Sec. 123 (4) of the Act. If we believe that such a document was published during the election either by the respondent or by someone with his consent, the election of the respondent will have to be necessarily set aside.Now coming to those leaflets, there is no satisfactory evidence as to their printing. It is not proved in which press the same was printed nor is there any evidence to show as to who got it printed. It is shown in those leaflets that they were printed at "Kailash Printers,The proprietor of that press has been examined on behalf of the petitioners. He denied that those leaflets were printed at his press or that they were got printed by the respondent. The petitioners Counsel did not seek the permission of the Court tothat witness to show that he had turned hostile to the petitioners. There is no reason why we should reject the testimony of this witness. The respondent has denied that he got those leaflets printed. No doubt not much reliance can be placed on the testimony of the respondent because he has given false evidence on several aspects of the case but the fact remains that the petitioners have not been able to prove that leaflets similar to Annexure C were got printed at Kailash Printers and further that they were printed at the instance of the respondent.12. The leaflets in question were issued under the signature of one Rishi Ram. One Rishi Ram was examined as R. W. 26. He denied that he got those leaflets printed or published. But there is evidence to show that there was bitter enmity between Rajesh Sharma and R. W. 26. Therefore there was a possibility of his getting those leaflets printed and he may even have distributed some of those leaflets. As R. W. 26 had serious enmity with Rajesh Sharma, he needed no prodding from the respondent for getting those leaflets printed or even for publishing them. If he had got those leaflets printed and published, on his own, as it appears to be likely, the respondent cannot be held responsible for the same.13. The witnesses who speak to the fact that the leaflets in question were published with the consent of the respondent are P. W. 45 Jugal Kishore, P. W. 21 Manmohan Sharma and P. W. 33 R. B. Gupta. We have already considered the evidence of P. W. 45 and come to the conclusion that it is unsafe to place reliance on his testimony. That was also the conclusion reached by the learned trial Judge. P. W. 33, Ram Babu Gupta was a worker of Rajesh Sharma during the election. It is not likely that he would have gone to the office of the respondent on being invited by the respondent and that the respondent would have committed serious election offences in his presence or to his knowledge. He wanted to show that from his childhood he was a member of the R. S. S. and lately he disassociated himself from that organization. This version of his appears to be wholly false. From the facts elicited in hisit is clear that he does not know anything about R. S. S. organization in Delhi. He does not know who is its Sanchalak at Delhi or its General Secretary or the Chief Organizer in Delhi State. In our opinion the evidence of this witness has been rightly rejected by the trial court. So far as P. W. 21 is concerned he admits that he was intimate with Rajesh Sharma. His evidence appears to be quite artificial. His story that the respondent was accompanying his workers when they were distributing the leaflets is difficult to accept. We agree with the learned trial Judge that his evidence also is not reliable.14. Large number of witnesses have been examined to show that the leaflets in question were distributed by the Jan Sangh workers P. Ws. 17, 21, 33, 36, 41, 42, 43, 45, 49 and some others. The learned trial Judge after examining their evidence has rejected the same as unreliable. We agree with his conclusion. It is not necessary to examine their evidence in details as their evidence does not show that distribution was made at the instance of the respondent.15.A tame attempt was made to show that even if we hold that there is no satisfactory proof to show that calendar similar to Annexure A and leaflets similar to Annexure C were not proved to have been distributed with the consent of the respondent the very proof of their distribution is sufficient to set aside the election as the distribution of those calendars and leaflets must have vitiated the result of the election.We have earlier come to the conclusion that there is no satisfactory evidence as regards their distribution. Further from the evidence on record it is not possible to hold that they were widely distributed. From the evidence before us it is not possible to come to a positive finding that their distribution is likely to have vitiated the result of the election.
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Basant Lal (Dead) By Lrs. and Another Vs. State of Uttar Pradesh and Another | by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case is concerned.8. In the lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by the lessee.9. Mr. Dixit, appearing for the State of U.P., relied on s.108(h) of the Transfer of Property Act which runs thus:"108(h). The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth, provided he leaves the property in the State in which he received it."10. He contended that even if the lease was determined, the title to the construction, etc., would vest in the lessor only if the lessee does not remove the materials at any time whilst he is in possession of the property leased. It was argued that in the instant case, as the leased land was acquired by the Government while the lessee was still in possession and continued to be in possession, by virtue of the land having been acquired, the lessor could not claim any title to the constructions or the materials. There could be no doubt that this is the real effect of clause (h) of s. 108 but s. 108 opens with a sort of a non-obstante clause which is as follows:"In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased."11. A construction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the lessor. In this connection, the relevant part of the lease may be extracted thus:-"6. That within four months after the expiry of the period of lease, the lessees, their successors or assigns will be entitled to remove their stocks and machinery etc. pipelines, electric installation, fixtures, fittings, including stocks and materials of their constructions and fittings which stand on the plot of land shown by the letters A F H G in the accompanying map and will, on the expiry at the period of lease have over to the lessors the said plot of land (shown by letters A F H G in the accompanying map) duly levelled but the lessees would not be entitled to remove the boundary walls or any constructions or buildings which at present are created, which may be created during the period of lease on the plot of land shown by letters A B E F in the accompanying map and which is outside the compound of the lessees Oil Mills on the eastern side and on which at present stand twenty three quarters facing Hamirpur Road, as their quarters or any other buildings that may be created in their place or on their site as well as boundary walls would become the property of the lessors on the expiry of the period of lease, without any compensation being paid for the same by the lessors to the lessees." (Emphasis ours)12. Thus, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures thereon.13. As, however, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is concerned. | 1[ds]We find ourselves in complete agreement with the view taken by the High Court. There is no reliable evidence at all to show the exact date when the rent was accepted or, at any rate, the fact that the rent was accepted between the 26th February 1944, when the notice was sent, and the 30th June 1944, when the Company was asked to vacate the premises. Furthermore, the High Court has pointed out from the evidence of the appellants that the Company was treated as a trespasser ever since 26th February 1944, namely, the date when the notice was given and has held that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land. In these circumstances, we fully endorse the finding of the High Court that there was no waiver of the notice such as was spelt by the District Judge. The High Court, however, upheld the order of the District Judge for a different reason which was that there could not be any forfeiture of the tenancy under s. 111(g) of the Transfer of Property Act unless a notice was given to the lessee by the lessor expressing his intention to terminate the lease and in addition a notice under s.114-A of that Act also affording an opportunity to the lessee to comply with the terms, the non-compliance of which would result in forfeiture. According to the High Court, as the second condition was not complied with, there was no forfeiture and hence the title to the structures, etc., continued to vest in the lessee and therefore after the Government acquired the land under the Land Acquisition Act, the appellants were not entitled to any compensation for the structures and the materials as claimed by them. We are, however, unable to agree with the view taken by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case isthe lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by theconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structureshowever, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation isconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of thealthough the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is | 1 | 2,690 | 1,148 | ### Instruction:
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by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case is concerned.8. In the lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by the lessee.9. Mr. Dixit, appearing for the State of U.P., relied on s.108(h) of the Transfer of Property Act which runs thus:"108(h). The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth, provided he leaves the property in the State in which he received it."10. He contended that even if the lease was determined, the title to the construction, etc., would vest in the lessor only if the lessee does not remove the materials at any time whilst he is in possession of the property leased. It was argued that in the instant case, as the leased land was acquired by the Government while the lessee was still in possession and continued to be in possession, by virtue of the land having been acquired, the lessor could not claim any title to the constructions or the materials. There could be no doubt that this is the real effect of clause (h) of s. 108 but s. 108 opens with a sort of a non-obstante clause which is as follows:"In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased."11. A construction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the lessor. In this connection, the relevant part of the lease may be extracted thus:-"6. That within four months after the expiry of the period of lease, the lessees, their successors or assigns will be entitled to remove their stocks and machinery etc. pipelines, electric installation, fixtures, fittings, including stocks and materials of their constructions and fittings which stand on the plot of land shown by the letters A F H G in the accompanying map and will, on the expiry at the period of lease have over to the lessors the said plot of land (shown by letters A F H G in the accompanying map) duly levelled but the lessees would not be entitled to remove the boundary walls or any constructions or buildings which at present are created, which may be created during the period of lease on the plot of land shown by letters A B E F in the accompanying map and which is outside the compound of the lessees Oil Mills on the eastern side and on which at present stand twenty three quarters facing Hamirpur Road, as their quarters or any other buildings that may be created in their place or on their site as well as boundary walls would become the property of the lessors on the expiry of the period of lease, without any compensation being paid for the same by the lessors to the lessees." (Emphasis ours)12. Thus, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures thereon.13. As, however, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is concerned.
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the fact that the rent was accepted between the 26th February 1944, when the notice was sent, and the 30th June 1944, when the Company was asked to vacate the premises. Furthermore, the High Court has pointed out from the evidence of the appellants that the Company was treated as a trespasser ever since 26th February 1944, namely, the date when the notice was given and has held that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land. In these circumstances, we fully endorse the finding of the High Court that there was no waiver of the notice such as was spelt by the District Judge. The High Court, however, upheld the order of the District Judge for a different reason which was that there could not be any forfeiture of the tenancy under s. 111(g) of the Transfer of Property Act unless a notice was given to the lessee by the lessor expressing his intention to terminate the lease and in addition a notice under s.114-A of that Act also affording an opportunity to the lessee to comply with the terms, the non-compliance of which would result in forfeiture. According to the High Court, as the second condition was not complied with, there was no forfeiture and hence the title to the structures, etc., continued to vest in the lessee and therefore after the Government acquired the land under the Land Acquisition Act, the appellants were not entitled to any compensation for the structures and the materials as claimed by them. We are, however, unable to agree with the view taken by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case isthe lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by theconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structureshowever, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation isconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of thealthough the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is
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Terapalli Dyvasahata Kumar Vs. S.M.Kantha Raju (Dead) Thr. Lr. | 76(1) of the Trade Marks Act, 1940 which provided an appeal from any decision of the Registrar to "the High Court having jurisdiction". This Court held that the Trade Marks Act does not provide for or lay down any procedure for the conduct of an appeal in the High Court. This being so, this Court held: "The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd. v. Postmaster-General [1913] A.C. 546, in these terms : -"When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches."The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (1947) 74 I.A. 264, wherein it was said :-"Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal."Again in Secretary of State for India v. Chellikani Rama Rao (1916) I.L.R. 39 Madras 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows : -"It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply."Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized at such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." 15. The same position obtains in the present case as Section 23 of the 2001 Act also does not provide for any procedure for the conduct of the application in the District Court concerned. This judgment would therefore apply on all fours to the facts in the present case. However, learned counsel for the respondent brought to our notice a judgment in Stridewell Leathers (P) Ltd. and Others v. Bhankerpur Simbhaoli Beverages (P) Ltd., and Others, (1994) 1 SCC 34. The question for decision in the appeal before this Court was the meaning of the expression "the High Court" in Section 10-F of the Companies Act, 1956. The Companies Act defined "the Court" in Section 2(11) as follows:- "(11) the Court means,- (a) with respect to any matter relating to a company (other than any offence against this Act), the Court having jurisdiction under this Act with respect to that matter relating to that company, as provided in Section 10."and then went on to speak of "the court having jurisdiction" in Section 10(1)(a) as follows:10. Jurisdiction of Courts.- (1) The Court having jurisdiction under this Act shall be- (a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2)" 16. This being the case, this Court came to the conclusion that the High Court in Section 10-F means the High Court having jurisdiction in relation to the place at which the Registered Office of the Company concerned is situate, as indicated by Section 2(11) read with Section 10(1)(a) of the Companies Act. 17. This judgment would be relevant if the pari materia provision under Section 13 of the Societies Registration Act, 1860 had fallen for decision. As has been pointed out above, this provision gives only one court jurisdiction - the principal court of original civil jurisdiction of the District in which the chief building of the society is situate, somewhat like Section 10-F of the Companies Act. Inasmuch as this Section is completely distinct from Sections 23 of the 2001 Act and 11 of the earlier Telangana Act, it is clear that the judgment in James Chadwicks case squarely applies to the present case, and not the aforesaid judgment. | 1[ds]8. We are inclined to observe that what learned counsel for the respondents has argued before us is correct. However, in view of the recurring nature of the question that arises before us, it is important to settle the law once and for all for future guidance in cases like the present one.It will be apparent that the scheme of the Societies Registration Act on the one hand, and that of the Andhra Pradesh (Telangana Area) Act and the consolidating Act of 2001 on the other is completely different. On the one hand, the 1860 Act refers the dispute that arises under Section 13 only to the Principal Court of original civil jurisdiction of the District in which the chief building of the Society is situate. Under this Act therefore, jurisdiction is confined to one court and one court only: that is the principal court of original civil jurisdiction where the actual physical main building of the society is situate. On the other hand, Section 11 of the 1940 Act and Section 23 of the 2001 Act enable the person aggrieved to file an application in the "District Court concerned". It is this expression that has to be construed by this Court in the present case.13. As the District Judge correctly states in the impugned judgment dated 17.01.2005, where the expression "District Court" is not defined by the special enactment in which it occurs, it must necessarily take with it all the trappings that go along with a District Court that is established under the general law. This would necessarily mean that the provisions applicable to District Courts generally would apply, and that therefore the provisions of the Code of Civil Procedure, when it comes to determining the jurisdiction of such District Court, would necessarily apply.15. The same position obtains in the present case as Section 23 of the 2001 Act also does not provide for any procedure for the conduct of the application in the District Court concerned. This judgment would therefore apply on all fours to the facts in the present case.This judgment would be relevant if the pari materia provision under Section 13 of the Societies Registration Act, 1860 had fallen for decision. As has been pointed out above, this provision gives only one court jurisdictionthe principal court of original civil jurisdiction of the District in which the chief building of the society is situate, somewhat like Sectionof the Companies Act. Inasmuch as this Section is completely distinct from Sections 23 of the 2001 Act and 11 of the earlier Telangana Act, it is clear that the judgment in James Chadwicks case squarely applies to the present case, and not the aforesaid judgment. | 1 | 3,282 | 486 | ### 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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76(1) of the Trade Marks Act, 1940 which provided an appeal from any decision of the Registrar to "the High Court having jurisdiction". This Court held that the Trade Marks Act does not provide for or lay down any procedure for the conduct of an appeal in the High Court. This being so, this Court held: "The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd. v. Postmaster-General [1913] A.C. 546, in these terms : -"When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches."The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (1947) 74 I.A. 264, wherein it was said :-"Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal."Again in Secretary of State for India v. Chellikani Rama Rao (1916) I.L.R. 39 Madras 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows : -"It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply."Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized at such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." 15. The same position obtains in the present case as Section 23 of the 2001 Act also does not provide for any procedure for the conduct of the application in the District Court concerned. This judgment would therefore apply on all fours to the facts in the present case. However, learned counsel for the respondent brought to our notice a judgment in Stridewell Leathers (P) Ltd. and Others v. Bhankerpur Simbhaoli Beverages (P) Ltd., and Others, (1994) 1 SCC 34. The question for decision in the appeal before this Court was the meaning of the expression "the High Court" in Section 10-F of the Companies Act, 1956. The Companies Act defined "the Court" in Section 2(11) as follows:- "(11) the Court means,- (a) with respect to any matter relating to a company (other than any offence against this Act), the Court having jurisdiction under this Act with respect to that matter relating to that company, as provided in Section 10."and then went on to speak of "the court having jurisdiction" in Section 10(1)(a) as follows:10. Jurisdiction of Courts.- (1) The Court having jurisdiction under this Act shall be- (a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2)" 16. This being the case, this Court came to the conclusion that the High Court in Section 10-F means the High Court having jurisdiction in relation to the place at which the Registered Office of the Company concerned is situate, as indicated by Section 2(11) read with Section 10(1)(a) of the Companies Act. 17. This judgment would be relevant if the pari materia provision under Section 13 of the Societies Registration Act, 1860 had fallen for decision. As has been pointed out above, this provision gives only one court jurisdiction - the principal court of original civil jurisdiction of the District in which the chief building of the society is situate, somewhat like Section 10-F of the Companies Act. Inasmuch as this Section is completely distinct from Sections 23 of the 2001 Act and 11 of the earlier Telangana Act, it is clear that the judgment in James Chadwicks case squarely applies to the present case, and not the aforesaid judgment.
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8. We are inclined to observe that what learned counsel for the respondents has argued before us is correct. However, in view of the recurring nature of the question that arises before us, it is important to settle the law once and for all for future guidance in cases like the present one.It will be apparent that the scheme of the Societies Registration Act on the one hand, and that of the Andhra Pradesh (Telangana Area) Act and the consolidating Act of 2001 on the other is completely different. On the one hand, the 1860 Act refers the dispute that arises under Section 13 only to the Principal Court of original civil jurisdiction of the District in which the chief building of the Society is situate. Under this Act therefore, jurisdiction is confined to one court and one court only: that is the principal court of original civil jurisdiction where the actual physical main building of the society is situate. On the other hand, Section 11 of the 1940 Act and Section 23 of the 2001 Act enable the person aggrieved to file an application in the "District Court concerned". It is this expression that has to be construed by this Court in the present case.13. As the District Judge correctly states in the impugned judgment dated 17.01.2005, where the expression "District Court" is not defined by the special enactment in which it occurs, it must necessarily take with it all the trappings that go along with a District Court that is established under the general law. This would necessarily mean that the provisions applicable to District Courts generally would apply, and that therefore the provisions of the Code of Civil Procedure, when it comes to determining the jurisdiction of such District Court, would necessarily apply.15. The same position obtains in the present case as Section 23 of the 2001 Act also does not provide for any procedure for the conduct of the application in the District Court concerned. This judgment would therefore apply on all fours to the facts in the present case.This judgment would be relevant if the pari materia provision under Section 13 of the Societies Registration Act, 1860 had fallen for decision. As has been pointed out above, this provision gives only one court jurisdictionthe principal court of original civil jurisdiction of the District in which the chief building of the society is situate, somewhat like Sectionof the Companies Act. Inasmuch as this Section is completely distinct from Sections 23 of the 2001 Act and 11 of the earlier Telangana Act, it is clear that the judgment in James Chadwicks case squarely applies to the present case, and not the aforesaid judgment.
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B.L. KASHYAP AND SONS LTD Vs. M/S JMS STEELS AND POWER CORPORATION & ANR | the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the Courts view that the defence is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court. 17.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. 18. When we apply the principles aforesaid to the facts of the present case and to the impugned orders, it is at once clear that after finding the suit to be maintainable under Order XXXVII CPC because of assertion of the plaintiff about joint and several liability of the defendants, the High Court concluded that the defences were frivolous and vexatious. The Trial Court had observed that the defendants failed to raise any triable issues. It appears that while recording such conclusions, the Trial Court as also the High Court totally omitted to consider that the appellant-defendant No. 2 has been contesting its liability with the assertion that it had only been the contractor executing the work of defendant No. 1. Even as per the plaint averments and plaintiffs assertions, the defendant No. 1 had made various payments from time to time against the supplies of the building material. The cheques, allegedly towards part payment against the supplies made by the plaintiff, had been issued by the defendant No. 1. In the given set of circumstances, the conclusion of the High Court that the defence raised by the appellant was frivolous or vexatious could only be treated as an assumptive one and lacking in requisite foundation. 19. At this juncture, we may also refer to a significant feature of the case that the defendant No. 1 (respondent No. 2 herein) had questioned the same judgment and decree of the Trial Court dated 18.09.2017 by way of a separate appeal, being RFA No. 743 of 2018, that was considered and dismissed by the High Court by the judgment and order dated 05.09.2018. Interestingly, the High Court dismissed the said appeal with the finding that the defence raised by defendant No. 1 was frivolous or vexatious and, in support of this finding, the High Court specifically gave the reason in the form of a query that if at all there was no liability of the defendant No. 1, where was the question of making payments regularly by the defendant No. 1 to the plaintiff? 19.1. It is at once noticeable that in contradistinction to the reasons stated qua the defendant No. 1 in the judgment and order dated 05.09.2018, the High Court has merely observed in the impugned judgment and order dated 11.05.2018 concerning the present appellant, i.e., defendant No. 2, that the defences were frivolous or vexatious and were raised only to deny the just dues of the seller of goods. No reason has been assigned as to why and how the defence of the present appellant (defendant No. 2) was treated as frivolous or vexatious. The effect and impact of an admitted position of the plaintiff, that payments were indeed made from time to time by the defendant No. 1, seems not to have gone into consideration of the Trial Court and the High Court while denying leave to the appellant. The same considerations, which weighed with the Courts to deny the leave to defend to the defendant No. 1, could not have been applied ipso facto to the case of the appellant; rather those considerations, in our view, make out a case of triable issues qua the appellant. 20. In the totality of the circumstances of this case, we are clearly of the view that the appellant has indeed raised triable issues, particularly concerning its liability and the defence of the appellant cannot be said to be frivolous or vexatious altogether. 20.1. In the aforesaid view of the matter, we are inclined to hold that the appellant-defendant No. 2 ought to have been granted the leave to defend the claim made in the suit concerning its liability; and to this extent, the impugned decree deserves to be set aside. 21. For what has been observed hereinabove, we would have considered granting unconditional leave to defend to the appellant but then, it is noticed that by the order dated 17.08.2018, this Court granted stay over execution of the decree on the condition of the appellant depositing a sum of Rs. 40,00,000/- (Forty Lakhs). Thereafter, by the order dated 24.09.2018, this Court noticed the fact of such deposit and condoned the delay of four days in making the deposit. | 0[ds]14. The question concerning maintainability of the suit filed by the plaintiff as a summary suit under Order XXXVII CPC need not detain us much longer. This is for the simple reason that as per the plaint averment, the matter is based on written contract arising out of written purchase orders issued by the appellant on the instructions and on behalf of defendant No. 1; and the plaintiff had raised the invoices against such supplies under the purchase orders. The plaintiff has further pointed out that two cheques were issued by the defendant No. 1 towards part payment against the invoices, being cheque No. 037274 dated 04.05.2015 in the sum of Rs. 14,72,269/- and No. 037272 dated 09.05.2015 in the sum of Rs. 13,34,319/-.14.1. The assertion of plaintiff had been of joint and several liability of the defendants. The question as to whether the appellant was acting only as an agent of defendant No. 1 in relation to the supplies in question and had no monetary liability, as sought to be raised by the appellant, could be a matter of his defence. This aspect, relating to the nature of defence shall be examined in the next question but, such a proposition of defence by the appellant cannot take away the entitlement of the plaintiff- respondent No. 1 to maintain the summary suit in terms of Order XXXVII CPC. This is apart from the fact that while asserting joint and several liability of the defendants, the plaintiff has also relied upon the cheques said to have been issued by defendant No. 1, which were allegedly not presented as per the request of the said defendant No. 1.14.2. In the overall facts and circumstances of the case, the contention against maintainability of the summary suit in terms of Order XXXVII CPC cannot be accepted and to that extent, we find no reason to consider any interference in the decision of the High Court.16.1. In the case of Mechelec Engineers (supra), the principles for consideration of a prayer for leave to defend in a summary suit were laid down by this Court in the following terms: -8. In Kiranmoyee Dassi Smt v. Dr J. Chatterjee [AIR 1949 Cal 479 :49 CWN 246, 253 : ILR (1945) 2 Cal 145.] Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17 CPC in the form of the following propositions (at p. 253):(a) If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action be may be able to establish a defence to the plaintiffs claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.(d) If the defendant has no defence or the defence set-up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.16.2. In the case of IDBI Trusteeship (supra), this Court modulated the aforementioned principles and laid down as follows: -17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendants good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.17. It is at once clear that even though in the case of IDBI Trusteeship, this Court has observed that the principles stated in paragraph 8 of Mechelec Engineers case shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception. Putting it in other words, generally, the prayer for leave to defend is to be denied in such cases where the defendant has practically no defence and is unable to give out even a semblance of triable issues before the Court.18. When we apply the principles aforesaid to the facts of the present case and to the impugned orders, it is at once clear that after finding the suit to be maintainable under Order XXXVII CPC because of assertion of the plaintiff about joint and several liability of the defendants, the High Court concluded that the defences were frivolous and vexatious. The Trial Court had observed that the defendants failed to raise any triable issues. It appears that while recording such conclusions, the Trial Court as also the High Court totally omitted to consider that the appellant-defendant No. 2 has been contesting its liability with the assertion that it had only been the contractor executing the work of defendant No. 1. Even as per the plaint averments and plaintiffs assertions, the defendant No. 1 had made various payments from time to time against the supplies of the building material. The cheques, allegedly towards part payment against the supplies made by the plaintiff, had been issued by the defendant No. 1. In the given set of circumstances, the conclusion of the High Court that the defence raised by the appellant was frivolous or vexatious could only be treated as an assumptive one and lacking in requisite foundation.19. At this juncture, we may also refer to a significant feature of the case that the defendant No. 1 (respondent No. 2 herein) had questioned the same judgment and decree of the Trial Court dated 18.09.2017 by way of a separate appeal, being RFA No. 743 of 2018, that was considered and dismissed by the High Court by the judgment and order dated 05.09.2018. Interestingly, the High Court dismissed the said appeal with the finding that the defence raised by defendant No. 1 was frivolous or vexatious and, in support of this finding, the High Court specifically gave the reason in the form of a query that if at all there was no liability of the defendant No. 1, where was the question of making payments regularly by the defendant No. 1 to the plaintiff?19.1. It is at once noticeable that in contradistinction to the reasons stated qua the defendant No. 1 in the judgment and order dated 05.09.2018, the High Court has merely observed in the impugned judgment and order dated 11.05.2018 concerning the present appellant, i.e., defendant No. 2, that the defences were frivolous or vexatious and were raised only to deny the just dues of the seller of goods. No reason has been assigned as to why and how the defence of the present appellant (defendant No. 2) was treated as frivolous or vexatious. The effect and impact of an admitted position of the plaintiff, that payments were indeed made from time to time by the defendant No. 1, seems not to have gone into consideration of the Trial Court and the High Court while denying leave to the appellant. The same considerations, which weighed with the Courts to deny the leave to defend to the defendant No. 1, could not have been applied ipso facto to the case of the appellant; rather those considerations, in our view, make out a case of triable issues qua the appellant.20. In the totality of the circumstances of this case, we are clearly of the view that the appellant has indeed raised triable issues, particularly concerning its liability and the defence of the appellant cannot be said to be frivolous or vexatious altogether.20.1. In the aforesaid view of the matter, we are inclined to hold that the appellant-defendant No. 2 ought to have been granted the leave to defend the claim made in the suit concerning its liability; and to this extent, the impugned decree deserves to be set aside.21. For what has been observed hereinabove, we would have considered granting unconditional leave to defend to the appellant but then, it is noticed that by the order dated 17.08.2018, this Court granted stay over execution of the decree on the condition of the appellant depositing a sum of Rs. 40,00,000/- (Forty Lakhs). Thereafter, by the order dated 24.09.2018, this Court noticed the fact of such deposit and condoned the delay of four days in making the deposit. | 0 | 7,046 | 2,176 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the Courts view that the defence is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court. 17.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. 18. When we apply the principles aforesaid to the facts of the present case and to the impugned orders, it is at once clear that after finding the suit to be maintainable under Order XXXVII CPC because of assertion of the plaintiff about joint and several liability of the defendants, the High Court concluded that the defences were frivolous and vexatious. The Trial Court had observed that the defendants failed to raise any triable issues. It appears that while recording such conclusions, the Trial Court as also the High Court totally omitted to consider that the appellant-defendant No. 2 has been contesting its liability with the assertion that it had only been the contractor executing the work of defendant No. 1. Even as per the plaint averments and plaintiffs assertions, the defendant No. 1 had made various payments from time to time against the supplies of the building material. The cheques, allegedly towards part payment against the supplies made by the plaintiff, had been issued by the defendant No. 1. In the given set of circumstances, the conclusion of the High Court that the defence raised by the appellant was frivolous or vexatious could only be treated as an assumptive one and lacking in requisite foundation. 19. At this juncture, we may also refer to a significant feature of the case that the defendant No. 1 (respondent No. 2 herein) had questioned the same judgment and decree of the Trial Court dated 18.09.2017 by way of a separate appeal, being RFA No. 743 of 2018, that was considered and dismissed by the High Court by the judgment and order dated 05.09.2018. Interestingly, the High Court dismissed the said appeal with the finding that the defence raised by defendant No. 1 was frivolous or vexatious and, in support of this finding, the High Court specifically gave the reason in the form of a query that if at all there was no liability of the defendant No. 1, where was the question of making payments regularly by the defendant No. 1 to the plaintiff? 19.1. It is at once noticeable that in contradistinction to the reasons stated qua the defendant No. 1 in the judgment and order dated 05.09.2018, the High Court has merely observed in the impugned judgment and order dated 11.05.2018 concerning the present appellant, i.e., defendant No. 2, that the defences were frivolous or vexatious and were raised only to deny the just dues of the seller of goods. No reason has been assigned as to why and how the defence of the present appellant (defendant No. 2) was treated as frivolous or vexatious. The effect and impact of an admitted position of the plaintiff, that payments were indeed made from time to time by the defendant No. 1, seems not to have gone into consideration of the Trial Court and the High Court while denying leave to the appellant. The same considerations, which weighed with the Courts to deny the leave to defend to the defendant No. 1, could not have been applied ipso facto to the case of the appellant; rather those considerations, in our view, make out a case of triable issues qua the appellant. 20. In the totality of the circumstances of this case, we are clearly of the view that the appellant has indeed raised triable issues, particularly concerning its liability and the defence of the appellant cannot be said to be frivolous or vexatious altogether. 20.1. In the aforesaid view of the matter, we are inclined to hold that the appellant-defendant No. 2 ought to have been granted the leave to defend the claim made in the suit concerning its liability; and to this extent, the impugned decree deserves to be set aside. 21. For what has been observed hereinabove, we would have considered granting unconditional leave to defend to the appellant but then, it is noticed that by the order dated 17.08.2018, this Court granted stay over execution of the decree on the condition of the appellant depositing a sum of Rs. 40,00,000/- (Forty Lakhs). Thereafter, by the order dated 24.09.2018, this Court noticed the fact of such deposit and condoned the delay of four days in making the deposit.
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defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.17. It is at once clear that even though in the case of IDBI Trusteeship, this Court has observed that the principles stated in paragraph 8 of Mechelec Engineers case shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception. Putting it in other words, generally, the prayer for leave to defend is to be denied in such cases where the defendant has practically no defence and is unable to give out even a semblance of triable issues before the Court.18. When we apply the principles aforesaid to the facts of the present case and to the impugned orders, it is at once clear that after finding the suit to be maintainable under Order XXXVII CPC because of assertion of the plaintiff about joint and several liability of the defendants, the High Court concluded that the defences were frivolous and vexatious. The Trial Court had observed that the defendants failed to raise any triable issues. It appears that while recording such conclusions, the Trial Court as also the High Court totally omitted to consider that the appellant-defendant No. 2 has been contesting its liability with the assertion that it had only been the contractor executing the work of defendant No. 1. Even as per the plaint averments and plaintiffs assertions, the defendant No. 1 had made various payments from time to time against the supplies of the building material. The cheques, allegedly towards part payment against the supplies made by the plaintiff, had been issued by the defendant No. 1. In the given set of circumstances, the conclusion of the High Court that the defence raised by the appellant was frivolous or vexatious could only be treated as an assumptive one and lacking in requisite foundation.19. At this juncture, we may also refer to a significant feature of the case that the defendant No. 1 (respondent No. 2 herein) had questioned the same judgment and decree of the Trial Court dated 18.09.2017 by way of a separate appeal, being RFA No. 743 of 2018, that was considered and dismissed by the High Court by the judgment and order dated 05.09.2018. Interestingly, the High Court dismissed the said appeal with the finding that the defence raised by defendant No. 1 was frivolous or vexatious and, in support of this finding, the High Court specifically gave the reason in the form of a query that if at all there was no liability of the defendant No. 1, where was the question of making payments regularly by the defendant No. 1 to the plaintiff?19.1. It is at once noticeable that in contradistinction to the reasons stated qua the defendant No. 1 in the judgment and order dated 05.09.2018, the High Court has merely observed in the impugned judgment and order dated 11.05.2018 concerning the present appellant, i.e., defendant No. 2, that the defences were frivolous or vexatious and were raised only to deny the just dues of the seller of goods. No reason has been assigned as to why and how the defence of the present appellant (defendant No. 2) was treated as frivolous or vexatious. The effect and impact of an admitted position of the plaintiff, that payments were indeed made from time to time by the defendant No. 1, seems not to have gone into consideration of the Trial Court and the High Court while denying leave to the appellant. The same considerations, which weighed with the Courts to deny the leave to defend to the defendant No. 1, could not have been applied ipso facto to the case of the appellant; rather those considerations, in our view, make out a case of triable issues qua the appellant.20. In the totality of the circumstances of this case, we are clearly of the view that the appellant has indeed raised triable issues, particularly concerning its liability and the defence of the appellant cannot be said to be frivolous or vexatious altogether.20.1. In the aforesaid view of the matter, we are inclined to hold that the appellant-defendant No. 2 ought to have been granted the leave to defend the claim made in the suit concerning its liability; and to this extent, the impugned decree deserves to be set aside.21. For what has been observed hereinabove, we would have considered granting unconditional leave to defend to the appellant but then, it is noticed that by the order dated 17.08.2018, this Court granted stay over execution of the decree on the condition of the appellant depositing a sum of Rs. 40,00,000/- (Forty Lakhs). Thereafter, by the order dated 24.09.2018, this Court noticed the fact of such deposit and condoned the delay of four days in making the deposit.
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Sirsi Municipality By Its President Sirsi Vs. Cecelia Kom Francis Tellis | SC 282 ) and Mafatlal Naraindas Barot v. Divisional Controller, S.T.C. (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.25. In Tewaris case (1964) 3 SCR 55 = (AIR 1964 SC 1680 ) (supra) this Court said that dismissal, removal or reduction of an officer or servant might be effected under the rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken. This Court held in Tewaris case (supra) that in three instances a dismissed employee might in appropriate cases obtain a declaratory judgment that the dismissal was wrongful. Those three instances are : first, cases of public servants falling under Article 311 (2) of the Constitution; secondly, cases falling under the Industrial Law and, thirdly, cases where acts of statutory bodies are in breach of mandatory obligation imposed by a statute.26. In Mafatlal Naraindas Barots case, (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) (supra) this Court held that the order of termination was bad in law since it contravened the provisions of clause 4 (b) of the regulation and also the principles of natural justice.27. This Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid. This Court has quashed the orders of dismissal and granted appropriate declarations.28. There have been recent English decisions on this subject. These are Vine v. National Dock Labour Board, (1956) 3 All ER 939; Barber v. Manchester Hospital Board, (1958) 1 All ER 322; Ridge v. Baldwin 1964 AC 40; Malloch v. Aberdeen Corpn, (1971) 2 All ER 1278 and McClelland v. Northern Ireland General Health Services Board (1957) 1 WLR 594.29. These decisions indicate that statutory provisions may limit the power of dismissal. Where such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bodies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down by legislation e.g. improperly delegates power of dismissal to another body the Courts have declared such dismissal from public employment to be invalid.30. The cases of a statutory status of an employee can also form the subject matter of protection of the rights of an employee under the statute. In Vines case, (1956) 3 All ER 939 (supra) the removal of Vines name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status. An unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by this Court in Jaffar Imams case (1965) 3 SCR 453 = (AIR 1966 SC 282 ) (supra). In Jaffar Imams case (supra) the termination of the employment in breach of clause 36 (3) of the scheme made by the Central Government in exercise of the power conferred on it by Section 4 (1) of `the Dock Workers (Regulation of Employment) Act 1948 was held to be bad. The ground given by this Court was that before any disciplinary action was taken under cls. 36 (1) and (2) of the scheme in Jaffar Imams case (supra) the person concerned was to be given an opportunity to show cause as to why the proposed action should not be taken against him.31. Again in Barbers case (1958) 1 All ER 322 (supra) under the memorandum issued by the Minister of Health the Hospital Board was not to carry into effect the dismissal of a consultant before a certain appeal procedure had been completed. Barber was dismissed without the prescribed procedure being followed. It was held that despite the strong statutory flavour attaching to the plaintiffs contract this was an ordinary contract between master and servant. The House of Lords in McClellands case, (1957) 1 WLR 594 held that the dismissal of the plaintiff by the Board in that case on the ground of redundancy of staff was not one of the grounds specified in the terms and conditions of service. It was found that the dismissal could be on specified grounds e.g. gross misconduct. A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly terminated. It was not a case of a Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The Court found that the express power of the Board did not include reduction on the ground of redundancy. The Court spelt out security of status in employment. The legal basis of the decision in McClellands case (supra) is that the post was terminable only on certain specified grounds.32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires. | 1[ds]32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires. | 1 | 3,509 | 141 | ### Instruction:
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SC 282 ) and Mafatlal Naraindas Barot v. Divisional Controller, S.T.C. (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.25. In Tewaris case (1964) 3 SCR 55 = (AIR 1964 SC 1680 ) (supra) this Court said that dismissal, removal or reduction of an officer or servant might be effected under the rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken. This Court held in Tewaris case (supra) that in three instances a dismissed employee might in appropriate cases obtain a declaratory judgment that the dismissal was wrongful. Those three instances are : first, cases of public servants falling under Article 311 (2) of the Constitution; secondly, cases falling under the Industrial Law and, thirdly, cases where acts of statutory bodies are in breach of mandatory obligation imposed by a statute.26. In Mafatlal Naraindas Barots case, (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) (supra) this Court held that the order of termination was bad in law since it contravened the provisions of clause 4 (b) of the regulation and also the principles of natural justice.27. This Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid. This Court has quashed the orders of dismissal and granted appropriate declarations.28. There have been recent English decisions on this subject. These are Vine v. National Dock Labour Board, (1956) 3 All ER 939; Barber v. Manchester Hospital Board, (1958) 1 All ER 322; Ridge v. Baldwin 1964 AC 40; Malloch v. Aberdeen Corpn, (1971) 2 All ER 1278 and McClelland v. Northern Ireland General Health Services Board (1957) 1 WLR 594.29. These decisions indicate that statutory provisions may limit the power of dismissal. Where such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bodies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down by legislation e.g. improperly delegates power of dismissal to another body the Courts have declared such dismissal from public employment to be invalid.30. The cases of a statutory status of an employee can also form the subject matter of protection of the rights of an employee under the statute. In Vines case, (1956) 3 All ER 939 (supra) the removal of Vines name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status. An unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by this Court in Jaffar Imams case (1965) 3 SCR 453 = (AIR 1966 SC 282 ) (supra). In Jaffar Imams case (supra) the termination of the employment in breach of clause 36 (3) of the scheme made by the Central Government in exercise of the power conferred on it by Section 4 (1) of `the Dock Workers (Regulation of Employment) Act 1948 was held to be bad. The ground given by this Court was that before any disciplinary action was taken under cls. 36 (1) and (2) of the scheme in Jaffar Imams case (supra) the person concerned was to be given an opportunity to show cause as to why the proposed action should not be taken against him.31. Again in Barbers case (1958) 1 All ER 322 (supra) under the memorandum issued by the Minister of Health the Hospital Board was not to carry into effect the dismissal of a consultant before a certain appeal procedure had been completed. Barber was dismissed without the prescribed procedure being followed. It was held that despite the strong statutory flavour attaching to the plaintiffs contract this was an ordinary contract between master and servant. The House of Lords in McClellands case, (1957) 1 WLR 594 held that the dismissal of the plaintiff by the Board in that case on the ground of redundancy of staff was not one of the grounds specified in the terms and conditions of service. It was found that the dismissal could be on specified grounds e.g. gross misconduct. A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly terminated. It was not a case of a Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The Court found that the express power of the Board did not include reduction on the ground of redundancy. The Court spelt out security of status in employment. The legal basis of the decision in McClellands case (supra) is that the post was terminable only on certain specified grounds.32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.
### Response:
1
### Explanation:
32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.
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Western Elect.Sup.Co.Of Orissa Ld Vs. M/S Baba Baijanath Roller & Flour Mil.Ld | presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained. 13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside. 14. We have also noticed in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai (supra), this Court held: 9. It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub-section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties. It is for the Inspector to determine whether the meter is correct or not and in case the Inspector is of the opinion that the meter is not correct he shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same. If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-section (6) of Section 26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of Section 26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such cases of fraud. It is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, that can be decided by the Electrical Inspector under the provisions of the said Act. In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal [2006 (12) SCC 222 ], it appears to us that in case of tampering, there is no scope for reference to Electrical Inspector. It was held : 9. In State of W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC 635], it was observed as follows: (SCC p. 637, para 5) 5. As regards the second claim, namely, the claim for the period from December 1993 to December 1995, the finding of the High Court is that the Vigilance Squad had found that Respondent 1 had tapped the electric energy directly from the transformer to the LT distribution board bypassing the meter circuit. If that is so, we do not know as to why the High Court would go on to advert to Section 26 of the Electricity Act and direct reference to the Electrical Inspector for decision under Section 26(6). In two decisions of this Court in M.P Electricity Board v. Basantibai [1988 (1) SCC 23 ] and J.M.D. Alloys Ltd. v. Bihar SEB [2003 (5) SCC 226 ] it has been held that in cases of tampering or theft or pilferage of electricity, the demand raised falls outside the scope of Section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in Section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside. In other respects the order of the High Court shall remain undisturbed. The appeal is allowed accordingly. | 1[ds]11. We have noticed the facts in this case. We have also considered the Sections of the Act of 1910 and it appears to us that Section 26 is relevant only when there is any difference or a dispute arises in connection with correctness of a meter, in that case the matter shall be decided, upon being applied by either party, by an Electrical Inspector and in the opinion of the Inspector if it is found that the meter is defective, the Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months but if there is a question of fraud in tampering with the meter, in that case there is no question of applicability of Section 26 of the said Act in such a matter. In the instance case, we have asked the learned counsel appearing for the respondent whether following Section 26(6), the respondent ever asked or applied for checking of the meter by the Electrical Inspector on the ground of defective meter. The answer was in the negative. Therefore, it shows that the ingredients of Section 26(6) were not followed by the respondent to meet the necessity of checking the meter in question in accordance with the said provision12. We have further noticed that the inspection was made in the presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside | 1 | 5,265 | 723 | ### Instruction:
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presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained. 13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside. 14. We have also noticed in Madhya Pradesh Electricity Board & Ors. v. Smt. Basantibai (supra), this Court held: 9. It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub-section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties. It is for the Inspector to determine whether the meter is correct or not and in case the Inspector is of the opinion that the meter is not correct he shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same. If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-section (6) of Section 26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of Section 26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such cases of fraud. It is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, that can be decided by the Electrical Inspector under the provisions of the said Act. In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal [2006 (12) SCC 222 ], it appears to us that in case of tampering, there is no scope for reference to Electrical Inspector. It was held : 9. In State of W.B. v. Rupa Ice Factory (P) Ltd. [2004 (10) SCC 635], it was observed as follows: (SCC p. 637, para 5) 5. As regards the second claim, namely, the claim for the period from December 1993 to December 1995, the finding of the High Court is that the Vigilance Squad had found that Respondent 1 had tapped the electric energy directly from the transformer to the LT distribution board bypassing the meter circuit. If that is so, we do not know as to why the High Court would go on to advert to Section 26 of the Electricity Act and direct reference to the Electrical Inspector for decision under Section 26(6). In two decisions of this Court in M.P Electricity Board v. Basantibai [1988 (1) SCC 23 ] and J.M.D. Alloys Ltd. v. Bihar SEB [2003 (5) SCC 226 ] it has been held that in cases of tampering or theft or pilferage of electricity, the demand raised falls outside the scope of Section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in Section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside. In other respects the order of the High Court shall remain undisturbed. The appeal is allowed accordingly.
### Response:
1
### Explanation:
11. We have noticed the facts in this case. We have also considered the Sections of the Act of 1910 and it appears to us that Section 26 is relevant only when there is any difference or a dispute arises in connection with correctness of a meter, in that case the matter shall be decided, upon being applied by either party, by an Electrical Inspector and in the opinion of the Inspector if it is found that the meter is defective, the Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months but if there is a question of fraud in tampering with the meter, in that case there is no question of applicability of Section 26 of the said Act in such a matter. In the instance case, we have asked the learned counsel appearing for the respondent whether following Section 26(6), the respondent ever asked or applied for checking of the meter by the Electrical Inspector on the ground of defective meter. The answer was in the negative. Therefore, it shows that the ingredients of Section 26(6) were not followed by the respondent to meet the necessity of checking the meter in question in accordance with the said provision12. We have further noticed that the inspection was made in the presence of the representative of the respondent who is a Manager of the said company and in his presence the meter was checked up and was found to be tampered with. We have also noticed that the plea of duress or coercion in signing the inspection report was raised by the respondent but in reality no allegation was made by the respondent before an appropriate authority excepting such bald allegations have been made before the writ court without any basis or evidence. Therefore that fact cannot have any bearings in deciding this matter. We cannot brush aside the said fact from the mind while dealing with the matter concerning tampering of meter. It appears to us that the said aspect has escaped the attention of the High Court and therefore, in our opinion, the High Court failed to appreciate the facts in their proper perspective. Therefore, on this ground, we find that the High Court has misconstrued the facts and the provisions of law in dealing with the matter. The provision of law which deals with tampering of metering equipments, i.e. clauses 56, 64 and 105 of the Code have not been considered by the High Court and in our opinion the High Court has failed to construe such provisions and erred in deciding the matter ignoring the said provisions. The High Court accepted the position submitted on behalf of the respondent/writ-petitioner that it was a case of defective meter and there is no question of any tampering with the meter in question. The High Court has failed to appreciate that the inspection was made and the fact of tampering of meter would appear from the inspection report and such inspection report was signed on behalf of the respondent/writ-petitioner. Therefore, the High Court ignoring the said fact, came to the conclusion without giving any reason, that the inspection report is bad and has erred in setting aside such inspection report. Hence, such findings of the High Court cannot be sustained13. Therefore, in our opinion, the High Court was also wrong in not considering the rights of the appellant to raise penal charges on the respondent on the ground of unauthorised consumption by way of tampering the meter or metering equipment and has a right to raise penal bill in accordance with the provisions of Code. On this ground the High Court has erred in allowing the writ petition in favour of the respondent, quashing the penal charges and further the direction given to refund the amount. The said order is without any reason and cannot be sustained in the eyes of law. Hence, the same is set aside
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Immani Appa Rao And Others Vs. Gollapalli Ramalingamurthi And Ors | of a statute, or of public policy, neither of them will, be estopped from proving those facts which render the instrument void ab initio; for although a party will thus in certain cases be enabled to take advantage of his own wrong, yet this evil is of a trifling nature in comparison with the flagrant evasion of the law that would result from the adoption of an opposite rule" (P. 98). Indeed, according to Taylor,"although illegality is not pleaded by the defendant nor sought to be relied upon by him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action Ex turpi cause not oritur actio. No polluted hand shall touch the pure fountain of Justice". (P. 93). 18. To the same effect is the opinion of Story: Storys Equity Jurisprudence, Vol. 1, S. 421; English edition by Randall, 1920, S. 298."In general, where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, Courts of Equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the known maxim In pari delicto potior est conditio defendentis et possidentis. The old cases often gave relief, both at law and in equity, where the party would otherwise deriver an advantage from his inequity. But the modern doctrine has adopted a more severely just and probably politic and moral rule which is, to leave the parties where it finds them giving no relief and no countenance to claims or this sort". 19. In judicial decisions where this question has been considered a passage from the judgment of Lord Mansfield, C. J. in Holman v. Johnson, (1775) 1 Cowp 341, is often quoted. If we may say so with respect the said passage very succinctly and eloquently brings out the true principles which should govern the decision of such cases. Said Lord Mansfield, C. J.,the objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiffs own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of positive law of this country, there the court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff" 20. On behalf of the respondents it was urged that the principles on which the appellants rely are applicable to contracts and not to conveyances. A conveyance, it is argued, rests on a different basis from a contract, and so the English decisions cannot be pressed into service by the appellants. We are not impressed by this argument. Even if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit, is brought as one of conveyance. 21. It is then contended that in deciding the point raised by the appellants we must look to the provisions of S. 84 of the Indian Trusts Act and nothing else. The Indian Trusts Act is a comprehensive code and it is only in cases falling under S. 84 that it would be permissible to the Court to apply the equitable principles or to invoke considerations of public policy as the appellants purport to do. Section 84 provides that where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor. We do not see how this section is material or can give any assistance in the decision of the point before us. In the present case the transferee is not in possession of the properties and the present care is not one of the three categories of cases contemplated by the section. If the argument assumes that the only cases where equitable principles can be invoked are cases falling under S. 84 and S. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside S. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally guilty. 22. | 1[ds]The point thus raised lies within a narrow compass and the material facts which give rise to it are no longer in dispute. It is common ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy. It is true that as a result of permitting respondent 2 and the appellants to prove their plea they would incidentally be assisted in retaining their possession; but this assistance is of a purcly passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies. It appears to us that this latter course is less injurious to public interest than the formerThere can be no question of estoppel in such a case for the obvious reason that the fraud in question was agreed by both the parties and both parties have assisted each other in carrying out the fraud. When it is said that a person cannot plead his own fraud it really means that a person cannot the permitted to go to a Court of Law to seek for its assistance and yet base his claim for the Courts assistance on the ground of his fraud. In this connection it would be relevant to remember that respondent 1 can be said to be guilty of a double fraud; first he joined respondent 2 in his fraudulent scheme and participated in the commission of fraud the object of which was to defeat the creditors of respondent 2, and then he committed another fraud in suppressing from the Court the fraudulent character of the transfer when he made out the claim for the recovery of the properties conveyed to him. The conveyance in his favour is not supported by any consideration and is the result of fraud; as such it conveys no title to him. Yet, if the plea of fraud is not allowed to be raised in defence the Court would in substance be giving effect to a document which is void ab initio. Therefore, we are inclined to hold that the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised and tried, and if it is upheld the estate should be allowed to remain where it rests. The adoption of this course, we think, is less injurious to public interest than the alternative course of giving effect to a fraudulent transfer. In our opinion, the view taken by these subsequent decisions of the Madras High Court does not represent the true and correct approach to the questionWe are not impressed by this argument. Even if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit, is brought as one of conveyanceWe do not see how this section is material or can give any assistance in the decision of the point before us. In the present case the transferee is not in possession of the properties and the present care is not one of the three categories of cases contemplated by the section. If the argument assumes that the only cases where equitable principles can be invoked are cases falling under S. 84 and S. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside S. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally guiltyThis question has been the subject matter of judicial decisions in most of our High Courts and it appears that the consensus of judicial opinion with the exception of the Madras High Court is in favour of the view which we have taken. In Bombay the principle that in dealing with a contest between two participants in fraud possession should be allowed to remain where it rests appears to have been consistently accepted until Chief Justice Sir Lawrence Jenkins struck a note of dissent in Sidlingappo v. Hirasa, ILR 31 Bom 405. Thereafter the correctness of this judgment was sometimes doubted in the subsequent decisions of the said High Court (Vide : Lakshman Balwant v. Vasudeo Mohaniraj, 33 Bom LR 356 : (AIR 1931 Bom 227 )) and finally the Full Bench of the said High Court reversed the said decision of Sir Lawrence Jenkins in Guddappa Chikkappa v. Balaji Ramji ILR (1941,) Bom 575 : (AIR 1941 Bom 274 ) (FB). Since then the decision of the Full Bench has been consistently followed in the Bombay High Court. The same view has been accepted by the Calcutta, Allahabad, Nagpur and Patna High Courts (Vide : Preomath Koer v. Kazi Mahomed Shazid, 8 Cal WN 620, Emperor v. Abdul Sheikh, AIR 1920 Cal 90, Vilayat Hussain v. Mt. Misran, ILR 45 All 396 : (AIR 1923 All 504 ), Nawab Singh v. Daljit Singh, ILR 58 All 842: (AIR 1936 All 401), Qader Baksh v. Hakim, ILR 13 Lah 713 : (AIR 1932 Lah 503) (FB) Bishwanath v. Surat Singh, AIR 1943 Nag l13 and Jharia Coal Field Electric Supply Co., Ltd. v. Kaluram Agarwala, ILR 30 Pat 137: (AIR 1951 Pat 463 )(Case of illegal contract))In Madras the earlier decisions of the High Court appear to have taken the same view (Vide: Venkataramana v. Viramma, ILR 10 Mad 17, Yaramati Krishnayya v. Chundru Papayya ILR 20 Mad 326 and Raghavalu Chetty v. Adinarayana Chetty ILR 32 Mad 323 . In the case of 32 Mad LJ 484 : (AIR 1918 Mad 365) however, a Division Bench of the Madras High Court upheld the view that a person who has conveyed property benami to another for the purpose of effecting a fraud on his creditors cannot, where the fraud has been effected, set up the benami character of the transaction by way of defence in a suit by the transferee for possession under the conveyance. Since then this view has prevailed in the Madras High Court (Vide : K. Kotayya Naidu v. C. Mahalakshmamma, ILR 56 Mad 646 : (AIR 1933 Mad 457 ) and Arunachalam Chettiar v. Rangaswamy Chettiar, ILR 59 Mad 289 : (AIR 1936 Mad. In our opinion, the view taken by these subsequent decisions of the Madras High Court does not represent the true and correct approach to the questionEven if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit, is brought as one of conveyanceIt is then contended that in deciding the point raised by the appellants we must look to the provisions of S. 84 of the Indian Trusts Act and nothing else. The Indian Trusts Act is a comprehensive code and it is only in cases falling under S. 84 that it would be permissible to the Court to apply the equitable principles or to invoke considerations of public policy as the appellants purport to do. Section 84 provides that where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.We do not see how this section is material or can give any assistance in the decision of the point before us. In the present case the transferee is not in possession of the properties and the present care is not one of the three categories of cases contemplated by the section. If the argument assumes that the only cases where equitable principles can be invoked are cases falling under S. 84 and S. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside S. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally | 1 | 6,540 | 1,754 | ### Instruction:
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of a statute, or of public policy, neither of them will, be estopped from proving those facts which render the instrument void ab initio; for although a party will thus in certain cases be enabled to take advantage of his own wrong, yet this evil is of a trifling nature in comparison with the flagrant evasion of the law that would result from the adoption of an opposite rule" (P. 98). Indeed, according to Taylor,"although illegality is not pleaded by the defendant nor sought to be relied upon by him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action Ex turpi cause not oritur actio. No polluted hand shall touch the pure fountain of Justice". (P. 93). 18. To the same effect is the opinion of Story: Storys Equity Jurisprudence, Vol. 1, S. 421; English edition by Randall, 1920, S. 298."In general, where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, Courts of Equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the known maxim In pari delicto potior est conditio defendentis et possidentis. The old cases often gave relief, both at law and in equity, where the party would otherwise deriver an advantage from his inequity. But the modern doctrine has adopted a more severely just and probably politic and moral rule which is, to leave the parties where it finds them giving no relief and no countenance to claims or this sort". 19. In judicial decisions where this question has been considered a passage from the judgment of Lord Mansfield, C. J. in Holman v. Johnson, (1775) 1 Cowp 341, is often quoted. If we may say so with respect the said passage very succinctly and eloquently brings out the true principles which should govern the decision of such cases. Said Lord Mansfield, C. J.,the objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiffs own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of positive law of this country, there the court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff" 20. On behalf of the respondents it was urged that the principles on which the appellants rely are applicable to contracts and not to conveyances. A conveyance, it is argued, rests on a different basis from a contract, and so the English decisions cannot be pressed into service by the appellants. We are not impressed by this argument. Even if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit, is brought as one of conveyance. 21. It is then contended that in deciding the point raised by the appellants we must look to the provisions of S. 84 of the Indian Trusts Act and nothing else. The Indian Trusts Act is a comprehensive code and it is only in cases falling under S. 84 that it would be permissible to the Court to apply the equitable principles or to invoke considerations of public policy as the appellants purport to do. Section 84 provides that where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor. We do not see how this section is material or can give any assistance in the decision of the point before us. In the present case the transferee is not in possession of the properties and the present care is not one of the three categories of cases contemplated by the section. If the argument assumes that the only cases where equitable principles can be invoked are cases falling under S. 84 and S. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside S. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally guilty. 22.
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held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally guiltyThis question has been the subject matter of judicial decisions in most of our High Courts and it appears that the consensus of judicial opinion with the exception of the Madras High Court is in favour of the view which we have taken. In Bombay the principle that in dealing with a contest between two participants in fraud possession should be allowed to remain where it rests appears to have been consistently accepted until Chief Justice Sir Lawrence Jenkins struck a note of dissent in Sidlingappo v. Hirasa, ILR 31 Bom 405. Thereafter the correctness of this judgment was sometimes doubted in the subsequent decisions of the said High Court (Vide : Lakshman Balwant v. Vasudeo Mohaniraj, 33 Bom LR 356 : (AIR 1931 Bom 227 )) and finally the Full Bench of the said High Court reversed the said decision of Sir Lawrence Jenkins in Guddappa Chikkappa v. Balaji Ramji ILR (1941,) Bom 575 : (AIR 1941 Bom 274 ) (FB). Since then the decision of the Full Bench has been consistently followed in the Bombay High Court. The same view has been accepted by the Calcutta, Allahabad, Nagpur and Patna High Courts (Vide : Preomath Koer v. Kazi Mahomed Shazid, 8 Cal WN 620, Emperor v. Abdul Sheikh, AIR 1920 Cal 90, Vilayat Hussain v. Mt. Misran, ILR 45 All 396 : (AIR 1923 All 504 ), Nawab Singh v. Daljit Singh, ILR 58 All 842: (AIR 1936 All 401), Qader Baksh v. Hakim, ILR 13 Lah 713 : (AIR 1932 Lah 503) (FB) Bishwanath v. Surat Singh, AIR 1943 Nag l13 and Jharia Coal Field Electric Supply Co., Ltd. v. Kaluram Agarwala, ILR 30 Pat 137: (AIR 1951 Pat 463 )(Case of illegal contract))In Madras the earlier decisions of the High Court appear to have taken the same view (Vide: Venkataramana v. Viramma, ILR 10 Mad 17, Yaramati Krishnayya v. Chundru Papayya ILR 20 Mad 326 and Raghavalu Chetty v. Adinarayana Chetty ILR 32 Mad 323 . In the case of 32 Mad LJ 484 : (AIR 1918 Mad 365) however, a Division Bench of the Madras High Court upheld the view that a person who has conveyed property benami to another for the purpose of effecting a fraud on his creditors cannot, where the fraud has been effected, set up the benami character of the transaction by way of defence in a suit by the transferee for possession under the conveyance. Since then this view has prevailed in the Madras High Court (Vide : K. Kotayya Naidu v. C. Mahalakshmamma, ILR 56 Mad 646 : (AIR 1933 Mad 457 ) and Arunachalam Chettiar v. Rangaswamy Chettiar, ILR 59 Mad 289 : (AIR 1936 Mad. In our opinion, the view taken by these subsequent decisions of the Madras High Court does not represent the true and correct approach to the questionEven if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit, is brought as one of conveyanceIt is then contended that in deciding the point raised by the appellants we must look to the provisions of S. 84 of the Indian Trusts Act and nothing else. The Indian Trusts Act is a comprehensive code and it is only in cases falling under S. 84 that it would be permissible to the Court to apply the equitable principles or to invoke considerations of public policy as the appellants purport to do. Section 84 provides that where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.We do not see how this section is material or can give any assistance in the decision of the point before us. In the present case the transferee is not in possession of the properties and the present care is not one of the three categories of cases contemplated by the section. If the argument assumes that the only cases where equitable principles can be invoked are cases falling under S. 84 and S. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside S. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplate by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally
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Korin Alias Etwari Devi Vs. India Cable Company Limited and Others | Court held that the findings recorded in title suit 116 of 1938 could not be res judicata because of the changed circumstances - that now the question of Rajdeos title to the two disputed plots on which his homestead stood was to be considered independently from whatever his interest in the said plots was when they formed part of the agricultural land from which he had been dispossession under Section 50. It is however a little difficult to understand the relevance of the proceeding under Section 50 to which the trial Court and the first appellate Court both referred. If that proceeding related to a holding under a different landlord, and was not part of the land belonging to the plaintiff now in dispute, Rajdeos dispossession under Section 50 could possibly have no bearing on the nature of his interest in the disputed plots. However, as it appears that all the Courts including the High Court as well as the parties to the litigation proceeded on the footing as if the homestead plots and the agricultural land constituted one holding, we do not propose to pursue the matter further.4. The High Court in second appeal preferred by the defendants affirmed the decision of the first appellate Court. The High Court also held that the findings in title suit 116 of 1938 were not res judicata, that the protection of Section 78 of the Act was not available to the defendants after they were dispossessed from the agricultural lands under Section 50 and consequently Rajdeos homestead became subject to the ordinary incidents of a tenancy governed by the Transfer of Property Act. On the point that after the Bihar Land Reforms Act, 1950 came into force the plaintiff company and their lessors TISCO ceased to have any interest in the disputed land, therefore this suit for recovery of possession at their instance was not maintainable, the High Court was of opinion that as the tenancy of the two disputed plots was governed by the provisions of the Transfer of Property Act and not the Chhota Nagpur Tenancy Act, the vesting of estates under the Bihar Land Reforms Act had "nothing to do with the present suit for eviction of the defendants".5. As regard res judicata, if the nature of the defendants interest, in the disputed plots changed after TISCO recovered possession of Rajdeos agricultural lands under Section 50 of the Act, the reason given by the first appellate Court why the rule of res judicate should not apply would be sound calling for no interference. A test to find out if the right that the defendants had in the disputed plots had undergone a change consequent on their dispossession from the agricultural lands is whether the protection of Section 78 was still available to them. Section 78 reads :Homesteads. When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage by the provisions of this Act applicable to land held by a raiyat.Mr. S. Chaudhury appearing for the first respondent, the plaintiff company, referred to two decisions of the Patna High Court on Section 78. In Joy Chand v. Bhutnath Khan (AIR 1930 Pat 236 : 11 PLT 207 : 125 IC 561) a Division Bench of the High Court held that Section 78 will apply so long as the tenant of the homestead continues to be a raiyat in respect of the other land but no longer. In Secretary of State v. Babu Beni Prasad (AIR 1937 Pat 444 : 170 IC 77 : 1937 PWN 649), another Division Bench held that Section 78 "was enacted as a protection to the cultivating tenant, so that he may not be turned out of his homestead as long as he holds his raiyati land. If he parts with the raiyati land, his tenancy of the homestead becomes subject to the ordinary incidence and does not suffice to keep up his status as a raiyat". This appears to be the consistent view taken by the Patna High Court on the point and we fine no reason, at least non has been pointed out, inducing us to take a different view.6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in the subject-matter of the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming the subject-matter of the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case. | 1[ds]6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in theof the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming theof the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case. | 1 | 1,873 | 305 | ### Instruction:
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Court held that the findings recorded in title suit 116 of 1938 could not be res judicata because of the changed circumstances - that now the question of Rajdeos title to the two disputed plots on which his homestead stood was to be considered independently from whatever his interest in the said plots was when they formed part of the agricultural land from which he had been dispossession under Section 50. It is however a little difficult to understand the relevance of the proceeding under Section 50 to which the trial Court and the first appellate Court both referred. If that proceeding related to a holding under a different landlord, and was not part of the land belonging to the plaintiff now in dispute, Rajdeos dispossession under Section 50 could possibly have no bearing on the nature of his interest in the disputed plots. However, as it appears that all the Courts including the High Court as well as the parties to the litigation proceeded on the footing as if the homestead plots and the agricultural land constituted one holding, we do not propose to pursue the matter further.4. The High Court in second appeal preferred by the defendants affirmed the decision of the first appellate Court. The High Court also held that the findings in title suit 116 of 1938 were not res judicata, that the protection of Section 78 of the Act was not available to the defendants after they were dispossessed from the agricultural lands under Section 50 and consequently Rajdeos homestead became subject to the ordinary incidents of a tenancy governed by the Transfer of Property Act. On the point that after the Bihar Land Reforms Act, 1950 came into force the plaintiff company and their lessors TISCO ceased to have any interest in the disputed land, therefore this suit for recovery of possession at their instance was not maintainable, the High Court was of opinion that as the tenancy of the two disputed plots was governed by the provisions of the Transfer of Property Act and not the Chhota Nagpur Tenancy Act, the vesting of estates under the Bihar Land Reforms Act had "nothing to do with the present suit for eviction of the defendants".5. As regard res judicata, if the nature of the defendants interest, in the disputed plots changed after TISCO recovered possession of Rajdeos agricultural lands under Section 50 of the Act, the reason given by the first appellate Court why the rule of res judicate should not apply would be sound calling for no interference. A test to find out if the right that the defendants had in the disputed plots had undergone a change consequent on their dispossession from the agricultural lands is whether the protection of Section 78 was still available to them. Section 78 reads :Homesteads. When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage by the provisions of this Act applicable to land held by a raiyat.Mr. S. Chaudhury appearing for the first respondent, the plaintiff company, referred to two decisions of the Patna High Court on Section 78. In Joy Chand v. Bhutnath Khan (AIR 1930 Pat 236 : 11 PLT 207 : 125 IC 561) a Division Bench of the High Court held that Section 78 will apply so long as the tenant of the homestead continues to be a raiyat in respect of the other land but no longer. In Secretary of State v. Babu Beni Prasad (AIR 1937 Pat 444 : 170 IC 77 : 1937 PWN 649), another Division Bench held that Section 78 "was enacted as a protection to the cultivating tenant, so that he may not be turned out of his homestead as long as he holds his raiyati land. If he parts with the raiyati land, his tenancy of the homestead becomes subject to the ordinary incidence and does not suffice to keep up his status as a raiyat". This appears to be the consistent view taken by the Patna High Court on the point and we fine no reason, at least non has been pointed out, inducing us to take a different view.6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in the subject-matter of the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming the subject-matter of the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case.
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6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in theof the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming theof the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case.
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State Of Gujarat Vs. Jetawat Lal Singh Amar Singh & Ors | relating to unalienated lands shall apply to these villages.5. In this case we are not concerned with the compensation payable to the Jagirdar. We are dealing with the case of a person coming under S. 14 (1) of the Act. That Section prescribes the method of awarding compensation to persons other than Jagirdars who are aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of their rights to, or interest in property. The Section reads thus:"Section 14 (1).If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation."6. The real question for decision is whether the right to own and possess Gharkhed land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate interest in property.Before a person can claim compensation under S. 14 (1), he hat he is not the Jagirdar of the concerned Jagir, (2) he is aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of the rights to, or interest in property as a result of the abolition of the Jagir and (3) compensation for such abolishing, extinguishment, modification has not been provided in the provisions of this Act. It is admitted that the petitioner was not a Jagirdar.It is also admitted that he is aggrieved by the provisions of this Act. It was not said that for abolition of any of the privileges enjoyed by him any compensation had been provided under the provisions of the Act. The only point in controversy is whether the claim put forward by him can be considered as right to, or interest in property.7. We shall first take up the Gharkhed lands. Admittedly the first respondent was enjoying those lands without any liability to pay assessment. That was a right conferred on him under the compromise decree. No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands. This was not a case of suspension of land revenue. The first respondents right was to enjoy the land free of the liability to pay the land revenue. That was the position on the date the Act came into force. So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar. We see no merit in the contention of Mr. N. S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right. That question is wholly irrelevant for our present purpose. In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment. The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondents rights to or interest in property were abolished, extinguished or modified. We are considering the plaintiff-respondents right to or interest in property as it stood before the Act and not after S. 5 of the Act came into force.There is no denying the fact that right to enjoy a property without the liability to pay assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment. Before the Act, the first respondent was enjoying Gharkhed lands without the liability to pay assessment but after the Act came into force he is enjoying those very lands with the liability to pay assessment. Therefore there is hardly any doubt that his interest in that property stands modified. In this case it is not necessary to consider whether that interest can be considered as a right in the property.8. We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/- annually from the Jagir is one of those rights that have got to be compensated under S. 14 (1). That liability was not the personal liability of the Jagirdar. The first respondent was entitled to get that amount from the Jagir. In other words it was a charge on the Jagir. Therefore it is an interest in property.9. We are unable to agree with Mr. Bindra that the decision of this Court in Civil Appeals Nos. 517---534 of 1965 = (AIR 1968 SC 1481 ) State of Gujarat etc. v. Vakhatsingh Vajesinghji Vaghela to which two of the members of this Bench were parties is of any assistance to the appellant. Therein this Court was called upon to consider the scope of S. 14 (1) of the Bombay Taluqdari Abolition Act, 1949. The language of that provision is substantially different from the language of S. 14 (1) of the Act. Further therein this Court held that the concerned Taluqdar was not entitled to enjoy the lands with the liability of paying only 60 per cent of the assessed assessment though for some years only 60 per cent of the assessed assessment was collected as a matter of concession. That was only a concession and not a right. Mr. Bindra tried to extract one or two sentences from the decision of the Bombay High Court in Shapurji Jivanji v. Collector of Bombay, (1885) ILR 9 Bom 483 and found an argument on the basis of those sentences to the effect that the right to collect assessment can never be given up. Far from supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation. | 0[ds]Admittedly the first respondent was enjoying those lands without any liability to pay assessment. That was a right conferred on him under the compromise decree. No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands. This was not a case of suspension of land revenue. The first respondents right was to enjoy the land free of the liability to pay the land revenue. That was the position on the date the Act came into force. So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar. We see no merit in the contention of Mr. N. S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right. That question is wholly irrelevant for our present purpose. In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment. The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondents rights to or interest in property were abolished, extinguished or modified. We are considering the plaintiff-respondents right to or interest in property as it stood before the Act and not after S. 5 of the Act came into force.There is no denying the fact that right to enjoy a property without the liability to pay assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment. Before the Act, the first respondent was enjoying Gharkhed lands without the liability to pay assessment but after the Act came into force he is enjoying those very lands with the liability to pay assessment. Therefore there is hardly any doubt that his interest in that property stands modified. In this case it is not necessary to consider whether that interest can be considered as a right in the property.8. We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/- annually from the Jagir is one of those rights that have got to be compensated under S. 14 (1). That liability was not the personal liability of the Jagirdar. The first respondent was entitled to get that amount from the Jagir. In other words it was a charge on the Jagir. Therefore it is an interest in property. | 0 | 1,985 | 472 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
relating to unalienated lands shall apply to these villages.5. In this case we are not concerned with the compensation payable to the Jagirdar. We are dealing with the case of a person coming under S. 14 (1) of the Act. That Section prescribes the method of awarding compensation to persons other than Jagirdars who are aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of their rights to, or interest in property. The Section reads thus:"Section 14 (1).If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation."6. The real question for decision is whether the right to own and possess Gharkhed land and the right to receive cash allowance annually from the Jagir are rights to property or at any rate interest in property.Before a person can claim compensation under S. 14 (1), he hat he is not the Jagirdar of the concerned Jagir, (2) he is aggrieved by the provisions of the Act as abolishing, extinguishing or modifying any of the rights to, or interest in property as a result of the abolition of the Jagir and (3) compensation for such abolishing, extinguishment, modification has not been provided in the provisions of this Act. It is admitted that the petitioner was not a Jagirdar.It is also admitted that he is aggrieved by the provisions of this Act. It was not said that for abolition of any of the privileges enjoyed by him any compensation had been provided under the provisions of the Act. The only point in controversy is whether the claim put forward by him can be considered as right to, or interest in property.7. We shall first take up the Gharkhed lands. Admittedly the first respondent was enjoying those lands without any liability to pay assessment. That was a right conferred on him under the compromise decree. No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands. This was not a case of suspension of land revenue. The first respondents right was to enjoy the land free of the liability to pay the land revenue. That was the position on the date the Act came into force. So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar. We see no merit in the contention of Mr. N. S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right. That question is wholly irrelevant for our present purpose. In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment. The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondents rights to or interest in property were abolished, extinguished or modified. We are considering the plaintiff-respondents right to or interest in property as it stood before the Act and not after S. 5 of the Act came into force.There is no denying the fact that right to enjoy a property without the liability to pay assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment. Before the Act, the first respondent was enjoying Gharkhed lands without the liability to pay assessment but after the Act came into force he is enjoying those very lands with the liability to pay assessment. Therefore there is hardly any doubt that his interest in that property stands modified. In this case it is not necessary to consider whether that interest can be considered as a right in the property.8. We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/- annually from the Jagir is one of those rights that have got to be compensated under S. 14 (1). That liability was not the personal liability of the Jagirdar. The first respondent was entitled to get that amount from the Jagir. In other words it was a charge on the Jagir. Therefore it is an interest in property.9. We are unable to agree with Mr. Bindra that the decision of this Court in Civil Appeals Nos. 517---534 of 1965 = (AIR 1968 SC 1481 ) State of Gujarat etc. v. Vakhatsingh Vajesinghji Vaghela to which two of the members of this Bench were parties is of any assistance to the appellant. Therein this Court was called upon to consider the scope of S. 14 (1) of the Bombay Taluqdari Abolition Act, 1949. The language of that provision is substantially different from the language of S. 14 (1) of the Act. Further therein this Court held that the concerned Taluqdar was not entitled to enjoy the lands with the liability of paying only 60 per cent of the assessed assessment though for some years only 60 per cent of the assessed assessment was collected as a matter of concession. That was only a concession and not a right. Mr. Bindra tried to extract one or two sentences from the decision of the Bombay High Court in Shapurji Jivanji v. Collector of Bombay, (1885) ILR 9 Bom 483 and found an argument on the basis of those sentences to the effect that the right to collect assessment can never be given up. Far from supporting that contention the decision actually proceeded on the basis that the said right can be given up either by contract or on the basis of legislation.
### Response:
0
### Explanation:
Admittedly the first respondent was enjoying those lands without any liability to pay assessment. That was a right conferred on him under the compromise decree. No material was placed before us to show that the Jagirdar was competent in spite of the compromise decree to collect assessment from him in respect of those lands. This was not a case of suspension of land revenue. The first respondents right was to enjoy the land free of the liability to pay the land revenue. That was the position on the date the Act came into force. So far as the Thakore was concerned the right to collect the assessment of those lands had been given as Jagir to the Jagirdar. We see no merit in the contention of Mr. N. S. Bindra, the learned Counsel for the appellant that the Sovereign had an inherent right to levy assessment and any agreement not to collect assessment has necessarily to be considered as a concession and not a right. That question is wholly irrelevant for our present purpose. In this case we are not called upon to consider the nature of the power of the Sovereign to levy assessment. The only question for our decision is that whether by abolishing the Jagir and by levying assessment on the Gharkhed lands any of the respondents rights to or interest in property were abolished, extinguished or modified. We are considering the plaintiff-respondents right to or interest in property as it stood before the Act and not after S. 5 of the Act came into force.There is no denying the fact that right to enjoy a property without the liability to pay assessment is a more valuable right than the right to enjoy the same property with the liability to pay assessment. Before the Act, the first respondent was enjoying Gharkhed lands without the liability to pay assessment but after the Act came into force he is enjoying those very lands with the liability to pay assessment. Therefore there is hardly any doubt that his interest in that property stands modified. In this case it is not necessary to consider whether that interest can be considered as a right in the property.8. We are also in agreement with the High Court that the right to receive cash allowance of Rs. 234/12/- annually from the Jagir is one of those rights that have got to be compensated under S. 14 (1). That liability was not the personal liability of the Jagirdar. The first respondent was entitled to get that amount from the Jagir. In other words it was a charge on the Jagir. Therefore it is an interest in property.
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Union of India and Ors Vs. Mukesh Kumar Meena | a person belonging to general category. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Union of India and others have preferred the present appeal. 3. Shri Nachiketa Joshi, learned counsel appearing on behalf of the appellants – Union of India and others has vehemently submitted that the impugned judgment and order passed by the High Court is beyond the grace marks policy declared by the Central Board of Direct Taxes. 3.1 It is submitted that while passing the impugned judgment and order, the Honble High Court has not at all appreciated the object and purpose of allowing the grace marks. It is submitted that as rightly observed by the learned Tribunal, the grace marks were to be provided only for the purpose of enabling marginally failing candidates to pass the examination. 3.2 It is submitted that as rightly observed by the learned Tribunal, the grace marks policy was not applicable in favour of a person, who has passed in his own category. It is submitted that it was not meant to give further grace marks to enable a person, who has passed in his own category to move to the general category on his own merit. 3.3 It is further submitted that the Honble High Court has as such erred in applying the decision of this Court in the case of Rajesh Kumar Daria (supra). It is submitted that the said decision shall not be applicable to the facts of the case on hand. 3.4 Making above submissions, it is prayed to allow the present appeal. 4. Present appeal is vehemently opposed by Dr. Sumant Bhardwaj, learned counsel appearing on behalf of the respondent – original applicant. 4.1 It is vehemently submitted that in the facts and circumstances of the case and relying upon the decision of this Court in the case of Rajesh Kumar Daria (supra), the Honble High Court has rightly directed the Department to give grace marks to the original applicant in the subject of Other Taxes so that he may switch over to general category and/or get the promotion in the general category. It is submitted that if the grace marks are given to the original applicant, in that case, he may get the promotion in the general category. 4.2 It is submitted that some other employees belonging to reserved categories were awarded five grace marks despite the fact that they were having the requisite minimum passing marks of 40% meant for SC/ST category. 4.3 Making above submissions and relying upon the decision of this Court in the case of Rajesh Kumar Daria (supra), it is prayed to dismiss the present appeal. 5. We have heard the learned counsel for the respective parties at length. We have also considered and gone through the grace marks policy declared by the Central Board of Direct Taxes (CBDT). 6. The CBDT introduced the grace marks policy with the purpose of enabling marginally failing candidates to pass the examination. At this stage, it is required to be noted that as per the Rules, 1998, the minimum marks provided for general category candidate was 45% and in the case of SC/ST category candidate, it was 40%. In the present case, the respondent – original applicant secured more than 45% marks in each subject except the subject of Other Taxes. In the subject of Other Taxes, he secured 43% marks. However, the minimum requirement was 40% so far as the respondent – original applicant is concerned, as he belonged to ST category and so he passed in his own category. However, it is the case on behalf of the original applicant that as the minimum marks required for general category candidate was 45% and if he would have been awarded two marks by way of grace in the subject of Other Taxes, in that case, he would have secured the minimum 45% marks required for general category candidate and therefore, he would have got the promotion in the general category. The aforesaid was rightly not accepted by the learned Tribunal. The benefit of the grace marks was not to allow the reserved category candidate to switch over to general category. 6.1 At the cost of repetition, it is observed that the CBDT introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination. Once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks. If the contention on behalf of the respondent – original applicant is accepted, in that case, granting the grace marks in the aforesaid case would be beyond the object and purpose of granting grace marks and beyond the policy declared by CBDT. Only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing upto five grace marks. By passing the impugned judgment and order, the High Court has not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT. It was never meant for a person, who has passed in his own category and still to allow him further grace marks to enable him to move to the general category. That was not the object and purpose of the grace marks policy. 7. Now, so far as the reliance placed upon the decision of this Court in the case of Rajesh Kumar Daria (supra) followed by the High Court is concerned, the said decision is not appliable to the facts of the case on hand. The specific grace marks policy was introduced by the CBDT, which was for marginally failing candidates so as to enable them to pass the examination. Therefore, the said decision relied upon by the respondent herein – original applicant is not applicable at all. | 0[ds]In the present case, the respondent – original applicant secured more than 45% marks in each subject except the subject of Other Taxes. In the subject of Other Taxes, he secured 43% marks. However, the minimum requirement was 40% so far as the respondent – original applicant is concerned, as he belonged to ST category and so he passed in his own category. However, it is the case on behalf of the original applicant that as the minimum marks required for general category candidate was 45% and if he would have been awarded two marks by way of grace in the subject of Other Taxes, in that case, he would have secured the minimum 45% marks required for general category candidate and therefore, he would have got the promotion in the general category. The aforesaid was rightly not accepted by the learned Tribunal. The benefit of the grace marks was not to allow the reserved category candidate to switch over to general category.6.1 At the cost of repetition, it is observed that the CBDT introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination. Once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks. If the contention on behalf of the respondent – original applicant is accepted, in that case, granting the grace marks in the aforesaid case would be beyond the object and purpose of granting grace marks and beyond the policy declared by CBDT. Only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing upto five grace marks. By passing the impugned judgment and order, the High Court has not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT. It was never meant for a person, who has passed in his own category and still to allow him further grace marks to enable him to move to the general category. That was not the object and purpose of the grace marks policy.7. Now, so far as the reliance placed upon the decision of this Court in the case of Rajesh Kumar Daria (supra) followed by the High Court is concerned, the said decision is not appliable to the facts of the case on hand. The specific grace marks policy was introduced by the CBDT, which was for marginally failing candidates so as to enable them to pass the examination. Therefore, the said decision relied upon by the respondent herein – original applicant is not applicable at all. | 0 | 1,948 | 509 | ### 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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a person belonging to general category. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Union of India and others have preferred the present appeal. 3. Shri Nachiketa Joshi, learned counsel appearing on behalf of the appellants – Union of India and others has vehemently submitted that the impugned judgment and order passed by the High Court is beyond the grace marks policy declared by the Central Board of Direct Taxes. 3.1 It is submitted that while passing the impugned judgment and order, the Honble High Court has not at all appreciated the object and purpose of allowing the grace marks. It is submitted that as rightly observed by the learned Tribunal, the grace marks were to be provided only for the purpose of enabling marginally failing candidates to pass the examination. 3.2 It is submitted that as rightly observed by the learned Tribunal, the grace marks policy was not applicable in favour of a person, who has passed in his own category. It is submitted that it was not meant to give further grace marks to enable a person, who has passed in his own category to move to the general category on his own merit. 3.3 It is further submitted that the Honble High Court has as such erred in applying the decision of this Court in the case of Rajesh Kumar Daria (supra). It is submitted that the said decision shall not be applicable to the facts of the case on hand. 3.4 Making above submissions, it is prayed to allow the present appeal. 4. Present appeal is vehemently opposed by Dr. Sumant Bhardwaj, learned counsel appearing on behalf of the respondent – original applicant. 4.1 It is vehemently submitted that in the facts and circumstances of the case and relying upon the decision of this Court in the case of Rajesh Kumar Daria (supra), the Honble High Court has rightly directed the Department to give grace marks to the original applicant in the subject of Other Taxes so that he may switch over to general category and/or get the promotion in the general category. It is submitted that if the grace marks are given to the original applicant, in that case, he may get the promotion in the general category. 4.2 It is submitted that some other employees belonging to reserved categories were awarded five grace marks despite the fact that they were having the requisite minimum passing marks of 40% meant for SC/ST category. 4.3 Making above submissions and relying upon the decision of this Court in the case of Rajesh Kumar Daria (supra), it is prayed to dismiss the present appeal. 5. We have heard the learned counsel for the respective parties at length. We have also considered and gone through the grace marks policy declared by the Central Board of Direct Taxes (CBDT). 6. The CBDT introduced the grace marks policy with the purpose of enabling marginally failing candidates to pass the examination. At this stage, it is required to be noted that as per the Rules, 1998, the minimum marks provided for general category candidate was 45% and in the case of SC/ST category candidate, it was 40%. In the present case, the respondent – original applicant secured more than 45% marks in each subject except the subject of Other Taxes. In the subject of Other Taxes, he secured 43% marks. However, the minimum requirement was 40% so far as the respondent – original applicant is concerned, as he belonged to ST category and so he passed in his own category. However, it is the case on behalf of the original applicant that as the minimum marks required for general category candidate was 45% and if he would have been awarded two marks by way of grace in the subject of Other Taxes, in that case, he would have secured the minimum 45% marks required for general category candidate and therefore, he would have got the promotion in the general category. The aforesaid was rightly not accepted by the learned Tribunal. The benefit of the grace marks was not to allow the reserved category candidate to switch over to general category. 6.1 At the cost of repetition, it is observed that the CBDT introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination. Once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks. If the contention on behalf of the respondent – original applicant is accepted, in that case, granting the grace marks in the aforesaid case would be beyond the object and purpose of granting grace marks and beyond the policy declared by CBDT. Only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing upto five grace marks. By passing the impugned judgment and order, the High Court has not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT. It was never meant for a person, who has passed in his own category and still to allow him further grace marks to enable him to move to the general category. That was not the object and purpose of the grace marks policy. 7. Now, so far as the reliance placed upon the decision of this Court in the case of Rajesh Kumar Daria (supra) followed by the High Court is concerned, the said decision is not appliable to the facts of the case on hand. The specific grace marks policy was introduced by the CBDT, which was for marginally failing candidates so as to enable them to pass the examination. Therefore, the said decision relied upon by the respondent herein – original applicant is not applicable at all.
### Response:
0
### Explanation:
In the present case, the respondent – original applicant secured more than 45% marks in each subject except the subject of Other Taxes. In the subject of Other Taxes, he secured 43% marks. However, the minimum requirement was 40% so far as the respondent – original applicant is concerned, as he belonged to ST category and so he passed in his own category. However, it is the case on behalf of the original applicant that as the minimum marks required for general category candidate was 45% and if he would have been awarded two marks by way of grace in the subject of Other Taxes, in that case, he would have secured the minimum 45% marks required for general category candidate and therefore, he would have got the promotion in the general category. The aforesaid was rightly not accepted by the learned Tribunal. The benefit of the grace marks was not to allow the reserved category candidate to switch over to general category.6.1 At the cost of repetition, it is observed that the CBDT introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination. Once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks. If the contention on behalf of the respondent – original applicant is accepted, in that case, granting the grace marks in the aforesaid case would be beyond the object and purpose of granting grace marks and beyond the policy declared by CBDT. Only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing upto five grace marks. By passing the impugned judgment and order, the High Court has not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT. It was never meant for a person, who has passed in his own category and still to allow him further grace marks to enable him to move to the general category. That was not the object and purpose of the grace marks policy.7. Now, so far as the reliance placed upon the decision of this Court in the case of Rajesh Kumar Daria (supra) followed by the High Court is concerned, the said decision is not appliable to the facts of the case on hand. The specific grace marks policy was introduced by the CBDT, which was for marginally failing candidates so as to enable them to pass the examination. Therefore, the said decision relied upon by the respondent herein – original applicant is not applicable at all.
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Hari Shankar Lal Vs. Shambhunath Prasad And Others | alternative in the sense that when no reference was entered upon at all then the time ran from the notice calling upon the arbitrators to act, and that if they had entered on the reference, they had three months from that moment for making their award. In that case, the notice to act was given before the arbitrators entered upon the reference, and as the award was made within the prescribed time from the date of entering upon the reference, though beyond the prescribed time from the notice asking the arbitrators to act, they held that the award was within time on the basis of the second alternative. In neither of the two cases the question that now falls to be considered had directly arisen, namely whether, if the notice to act was given subsequent to the arbitrators entering on the reference, the period should be computed from the former date or from the latter date. That question arises in this case.8. The said discussion leads us to the conclusion that though entering on the reference is an act of the arbitrators, that is not exhaustive of the content of the word "act" in the second alternative.9. But this wide construction, without limitation, would defeat the purpose of R. 3. The object of the rule is to prescribe a time limit in the interest of expeditious disposal of arbitration proceedings. If under the second alternative notice to act can be given at any time, it would enable one of the parties to enlarge the period of time prescribed indefinitely : not only the time limit, prescribed would become meaningless but one of the parties could also, without the consent of the other, resuscitate a dead or stale reference. This could not have been the intention of the Legislature and, therefore, a reasonable construction should be placed upon the provision. Such a limitation on the right of a party to reopen an abandoned reference is implicit in the words "to act". A party can ask the arbitrator to act if he is legally bound to act under the reference. If after the expiry of four months from the date of entering on the reference an arbitrator can no longer act, a notice given thereafter cannot ask him to act. Realizing this difficulty, learned counsel for the respondents suggests, that an arbitrator can act even after four months, though the award cannot be filed without getting an extension of time from the court. But the relevant provisions do not support this contention.10. The third alternative in R. 3 shows that an award can be made within the extended time allowed by the Court. Section 28 of the Act enables the court to extend the time for the making of the award; extension of time may be given even after the award has been factually made. So till the time is extended an award cannot be made, though, when extended, the award factually made may be treated as an award made within the time so extended. To put it differently, if time was not extended by court, the document described as an award would be treated as non est. In this view, the second alternative in R. 3 can be invoked only in a case where a notice to act has been given to the arbitrators either before the arbitrators entered on the reference or after they have entered on the reference but before the period of four months from that date has run out.11. It is said that this construction also may start off a chain of notices which may lead to the same result sought to be avoided by it. The argument is that if one of the parties gives a notice to act, it gives the arbitrators 4 months from that date to act and if before the expiry of the 4 months from that date of notice another notice is given, they will get another lease of life and so on indefinitely. Though there is some plausibility in the criticism, it is answered by our confining the right to give notice by a party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that a party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving a fresh period of 4 months, has any basis. A notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty. Therefore, every notice cannot give a fresh period unless in fact the arbitrators refused or neglected to act before such notice is given. The legal position may be formulated thus : (a) A notice to act may be given before or after the arbitrators entered upon the reference. (b) If notice to act is given before they entered upon the reference, the four months would be computed from the date they entered upon the reference. (c) If a party gives notice to act within 4 months after the arbitrators entered upon the reference, the arbitrators can make an award within 4 months from the date of such notice. And (d) in that event, after the expiry of the said 4 months the arbitrators become functus officio, unless the period is extended by court under S. 28 of the Act; such period may also be extended by the court, though the award has been factually made.12. In the present case, the notice was given long after the expiry of four months from the date when the arbitrators entered on the reference and, therefore , they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the court for extension of time under S. 28 of the Act. We, therefore, agree with the conclusion arrived at by the High Court, though on different grounds. | 0[ds]No doubt in the above case, unlike in the present case, the arbitrators were called on to act before they entered on the reference; but that cannot make any difference in the application of the principle, namely, that "to act" is not the same as "to enter on the reference", and that the former is of a wider import than the latter.The said discussion leads us to the conclusion that though entering on the reference is an act of the arbitrators, that is not exhaustive of the content of the word "act" in the secondthe relevant provisions do not support thisthis view, the second alternative in R. 3 can be invoked only in a case where a notice to act has been given to the arbitrators either before the arbitrators entered on the reference or after they have entered on the reference but before the period of four months from that date has runthere is some plausibility in the criticism, it is answered by our confining the right to give notice by a party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that a party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving a fresh period of 4 months, has any basis. A notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty. Therefore, every notice cannot give a fresh period unless in fact the arbitrators refused or neglected to act before such notice is given. The legal position may be formulated thus : (a) A notice to act may be given before or after the arbitrators entered upon the reference. (b) If notice to act is given before they entered upon the reference, the four months would be computed from the date they entered upon the reference. (c) If a party gives notice to act within 4 months after the arbitrators entered upon the reference, the arbitrators can make an award within 4 months from the date of such notice. And (d) in that event, after the expiry of the said 4 months the arbitrators become functus officio, unless the period is extended by court under S. 28 of the Act; such period may also be extended by the court, though the award has been factually made.12. In the present case, the notice was given long after the expiry of four months from the date when the arbitrators entered on the reference and, therefore , they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the court for extension of time under S. 28 of the Act. We, therefore, agree with the conclusion arrived at by the High Court, though on different grounds. | 0 | 2,761 | 544 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
alternative in the sense that when no reference was entered upon at all then the time ran from the notice calling upon the arbitrators to act, and that if they had entered on the reference, they had three months from that moment for making their award. In that case, the notice to act was given before the arbitrators entered upon the reference, and as the award was made within the prescribed time from the date of entering upon the reference, though beyond the prescribed time from the notice asking the arbitrators to act, they held that the award was within time on the basis of the second alternative. In neither of the two cases the question that now falls to be considered had directly arisen, namely whether, if the notice to act was given subsequent to the arbitrators entering on the reference, the period should be computed from the former date or from the latter date. That question arises in this case.8. The said discussion leads us to the conclusion that though entering on the reference is an act of the arbitrators, that is not exhaustive of the content of the word "act" in the second alternative.9. But this wide construction, without limitation, would defeat the purpose of R. 3. The object of the rule is to prescribe a time limit in the interest of expeditious disposal of arbitration proceedings. If under the second alternative notice to act can be given at any time, it would enable one of the parties to enlarge the period of time prescribed indefinitely : not only the time limit, prescribed would become meaningless but one of the parties could also, without the consent of the other, resuscitate a dead or stale reference. This could not have been the intention of the Legislature and, therefore, a reasonable construction should be placed upon the provision. Such a limitation on the right of a party to reopen an abandoned reference is implicit in the words "to act". A party can ask the arbitrator to act if he is legally bound to act under the reference. If after the expiry of four months from the date of entering on the reference an arbitrator can no longer act, a notice given thereafter cannot ask him to act. Realizing this difficulty, learned counsel for the respondents suggests, that an arbitrator can act even after four months, though the award cannot be filed without getting an extension of time from the court. But the relevant provisions do not support this contention.10. The third alternative in R. 3 shows that an award can be made within the extended time allowed by the Court. Section 28 of the Act enables the court to extend the time for the making of the award; extension of time may be given even after the award has been factually made. So till the time is extended an award cannot be made, though, when extended, the award factually made may be treated as an award made within the time so extended. To put it differently, if time was not extended by court, the document described as an award would be treated as non est. In this view, the second alternative in R. 3 can be invoked only in a case where a notice to act has been given to the arbitrators either before the arbitrators entered on the reference or after they have entered on the reference but before the period of four months from that date has run out.11. It is said that this construction also may start off a chain of notices which may lead to the same result sought to be avoided by it. The argument is that if one of the parties gives a notice to act, it gives the arbitrators 4 months from that date to act and if before the expiry of the 4 months from that date of notice another notice is given, they will get another lease of life and so on indefinitely. Though there is some plausibility in the criticism, it is answered by our confining the right to give notice by a party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that a party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving a fresh period of 4 months, has any basis. A notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty. Therefore, every notice cannot give a fresh period unless in fact the arbitrators refused or neglected to act before such notice is given. The legal position may be formulated thus : (a) A notice to act may be given before or after the arbitrators entered upon the reference. (b) If notice to act is given before they entered upon the reference, the four months would be computed from the date they entered upon the reference. (c) If a party gives notice to act within 4 months after the arbitrators entered upon the reference, the arbitrators can make an award within 4 months from the date of such notice. And (d) in that event, after the expiry of the said 4 months the arbitrators become functus officio, unless the period is extended by court under S. 28 of the Act; such period may also be extended by the court, though the award has been factually made.12. In the present case, the notice was given long after the expiry of four months from the date when the arbitrators entered on the reference and, therefore , they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the court for extension of time under S. 28 of the Act. We, therefore, agree with the conclusion arrived at by the High Court, though on different grounds.
### Response:
0
### Explanation:
No doubt in the above case, unlike in the present case, the arbitrators were called on to act before they entered on the reference; but that cannot make any difference in the application of the principle, namely, that "to act" is not the same as "to enter on the reference", and that the former is of a wider import than the latter.The said discussion leads us to the conclusion that though entering on the reference is an act of the arbitrators, that is not exhaustive of the content of the word "act" in the secondthe relevant provisions do not support thisthis view, the second alternative in R. 3 can be invoked only in a case where a notice to act has been given to the arbitrators either before the arbitrators entered on the reference or after they have entered on the reference but before the period of four months from that date has runthere is some plausibility in the criticism, it is answered by our confining the right to give notice by a party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that a party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving a fresh period of 4 months, has any basis. A notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty. Therefore, every notice cannot give a fresh period unless in fact the arbitrators refused or neglected to act before such notice is given. The legal position may be formulated thus : (a) A notice to act may be given before or after the arbitrators entered upon the reference. (b) If notice to act is given before they entered upon the reference, the four months would be computed from the date they entered upon the reference. (c) If a party gives notice to act within 4 months after the arbitrators entered upon the reference, the arbitrators can make an award within 4 months from the date of such notice. And (d) in that event, after the expiry of the said 4 months the arbitrators become functus officio, unless the period is extended by court under S. 28 of the Act; such period may also be extended by the court, though the award has been factually made.12. In the present case, the notice was given long after the expiry of four months from the date when the arbitrators entered on the reference and, therefore , they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the court for extension of time under S. 28 of the Act. We, therefore, agree with the conclusion arrived at by the High Court, though on different grounds.
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Jt.Collector Ranga Reddy Dist.& Anr.Etc Vs. D.Narsing Rao & Ors. Etc.Etc | at any time, the suo motu power under subsection (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power at any time only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But that does not mean that at any time should be unguided and arbitrary. In this view, at any time must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation. 9. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli. Khasra Pahani is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazette under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358-F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978. In the 2nd edition (1997) of The Law Lexicon by P. Ramanatha Aiyer (at page 1053) Khasra is described as follows: Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed. 10. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here. Regulation 166B reads as follows: 166-B. Revision:— (1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358 F, the Government or any Revenue officer not lower in rank to a Collector the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf; Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the concerned parties are summoned and heard. (2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case and with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1). (3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision. 11. No time limit is prescribed in the above Regulation for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-sites to the government employees. In other words the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. 12. In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law. | 0[ds]we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors10. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here11. No time limit is prescribed in the above Regulation for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-sites to the government employees. In other words the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties12. In the light of what is stated abovewe are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of | 0 | 3,939 | 578 | ### 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:
at any time, the suo motu power under subsection (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power at any time only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But that does not mean that at any time should be unguided and arbitrary. In this view, at any time must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation. 9. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli. Khasra Pahani is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazette under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358-F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978. In the 2nd edition (1997) of The Law Lexicon by P. Ramanatha Aiyer (at page 1053) Khasra is described as follows: Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed. 10. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here. Regulation 166B reads as follows: 166-B. Revision:— (1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358 F, the Government or any Revenue officer not lower in rank to a Collector the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf; Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the concerned parties are summoned and heard. (2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case and with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1). (3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision. 11. No time limit is prescribed in the above Regulation for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-sites to the government employees. In other words the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. 12. In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.
### Response:
0
### Explanation:
we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors10. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here11. No time limit is prescribed in the above Regulation for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-sites to the government employees. In other words the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties12. In the light of what is stated abovewe are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of
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V. Lakshmikanthan & Another Vs. Union of India & Others | rule of reservation) shall not be counted as reserved category candidates.(ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies.(iii) So far as Railway Guards in Railway service are concerned - that is the only category we are concerned herewith - the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade C at any given point of time provided that at that given point of time, both the general candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.xxx xxx xxx33. Shri Dhavan points out yet another anomaly. Where a candidate belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and on that account he suffers prejudice vis-a-vis another reserved category candidate who could not be selected on his own merit (i.e., in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at Sl. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No.33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl. No.33 will be be appointed against the first roster-point, whereas the Scheduled Caste candidate at S. No.18, being a general candidate has to wait for his turn. This, the learned counsel says, amounts, in effect, to punishing the Scheduled Caste candidate at Sl. No.18 for his merit. Because he was meritorious, he was selected in general category and is treated as a general candidate. He suffers all the disadvantages any other general candidate suffers while another Scheduled Caste candidate, far less meritorious than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter of initial appointment and in promotion after promotion thereafter. This is undoubtedly a piquant situation and may have to be appropriately rectified as and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be foretold now. According to the general category candidates herein concerned, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the representation of the reserved categories in Guard Grade A Special has reached 40 per cent as against the prescribed 22.5 percent. It is not possible for us to say, on the material before us, how and why the said situation has come about. It may be partly because the rule now enunciated in R.K. Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation - assuming that it is what is described by the general candidates - cannot be rectified with retrospective effect now. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway authorities shall hereinafter follows Rules (i), (ii) and (iii) [stated in Para No.29] with effect from the date of judgment in R.K. Sabharwal, i.e., 10.02.1995. "2. However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from 16.11.2005. In fact, it has been said so in an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on 17.11.2017 read as follows:-"(5) That it shall be clarified as to whether the Railway Board has followed post based roster in any other vacancy after 15.07.2005?In terms of Railway Boards letter Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and E(GP)2005/2/61 dated 22.11.2005 and 14.09.2006, instructions were issued regarding introduction of post based reservation rosters in promotion from Group C to Group B or within Group B.In terms of aforementioned letter dated 14.09.2006, Railway Board clarified that that post based roster shall be adopted from the next cycle of selections commencing after the issue of Railway Boards letter No.2005/E(SCT)I/25/14 dated 16.11.2005.Hence Post based roster for Gazetted cadre was not followed for any vacancy filled up to 16.11.2005. Thereafter, Post-based rosters were applied in all selections conducted in Group B."3. We are afraid that this stand cannot be justified. This Court in Virpal Singh Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995. | 1[ds]2. However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from 16.11.2005. In fact, it has been said so in an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on 17.11.2017 read asThat it shall be clarified as to whether the Railway Board has followed post based roster in any other vacancy after 15.07.2005?In terms of Railway Boards letter Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and E(GP)2005/2/61 dated 22.11.2005 and 14.09.2006, instructions were issued regarding introduction of post based reservation rosters in promotion from Group C to Group B or within Group B.In terms of aforementioned letter dated 14.09.2006, Railway Board clarified that that post based roster shall be adopted from the next cycle of selections commencing after the issue of Railway Boards letter No.2005/E(SCT)I/25/14 dated 16.11.2005.Hence Post based roster for Gazetted cadre was not followed for any vacancy filled up to 16.11.2005. Thereafter,rosters were applied in all selections conducted in Group B.We are afraid that this stand cannot be justified. This Court in Virpal Singh Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995. | 1 | 1,589 | 289 | ### Instruction:
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rule of reservation) shall not be counted as reserved category candidates.(ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies.(iii) So far as Railway Guards in Railway service are concerned - that is the only category we are concerned herewith - the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade C at any given point of time provided that at that given point of time, both the general candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.xxx xxx xxx33. Shri Dhavan points out yet another anomaly. Where a candidate belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and on that account he suffers prejudice vis-a-vis another reserved category candidate who could not be selected on his own merit (i.e., in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate selected on merit stands at Sl. No.18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No.33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl. No.33 will be be appointed against the first roster-point, whereas the Scheduled Caste candidate at S. No.18, being a general candidate has to wait for his turn. This, the learned counsel says, amounts, in effect, to punishing the Scheduled Caste candidate at Sl. No.18 for his merit. Because he was meritorious, he was selected in general category and is treated as a general candidate. He suffers all the disadvantages any other general candidate suffers while another Scheduled Caste candidate, far less meritorious than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter of initial appointment and in promotion after promotion thereafter. This is undoubtedly a piquant situation and may have to be appropriately rectified as and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be foretold now. According to the general category candidates herein concerned, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the representation of the reserved categories in Guard Grade A Special has reached 40 per cent as against the prescribed 22.5 percent. It is not possible for us to say, on the material before us, how and why the said situation has come about. It may be partly because the rule now enunciated in R.K. Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation - assuming that it is what is described by the general candidates - cannot be rectified with retrospective effect now. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway authorities shall hereinafter follows Rules (i), (ii) and (iii) [stated in Para No.29] with effect from the date of judgment in R.K. Sabharwal, i.e., 10.02.1995. "2. However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from 16.11.2005. In fact, it has been said so in an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on 17.11.2017 read as follows:-"(5) That it shall be clarified as to whether the Railway Board has followed post based roster in any other vacancy after 15.07.2005?In terms of Railway Boards letter Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and E(GP)2005/2/61 dated 22.11.2005 and 14.09.2006, instructions were issued regarding introduction of post based reservation rosters in promotion from Group C to Group B or within Group B.In terms of aforementioned letter dated 14.09.2006, Railway Board clarified that that post based roster shall be adopted from the next cycle of selections commencing after the issue of Railway Boards letter No.2005/E(SCT)I/25/14 dated 16.11.2005.Hence Post based roster for Gazetted cadre was not followed for any vacancy filled up to 16.11.2005. Thereafter, Post-based rosters were applied in all selections conducted in Group B."3. We are afraid that this stand cannot be justified. This Court in Virpal Singh Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995.
### Response:
1
### Explanation:
2. However, it is the case of the Railways that it took some more time for them to take a call on the issue of following post based reservation and finally it was clarified on 14.09.2006 that the post based reservation would be followed only with effect from 16.11.2005. In fact, it has been said so in an affidavit filed before this Court in an answer to a query from this Court in the order dated 25.10.2017. The query and answer given in the affidavit filed on 17.11.2017 read asThat it shall be clarified as to whether the Railway Board has followed post based roster in any other vacancy after 15.07.2005?In terms of Railway Boards letter Nos.2005/E(SCT)I/25/14 dated 16.11.2005 and E(GP)2005/2/61 dated 22.11.2005 and 14.09.2006, instructions were issued regarding introduction of post based reservation rosters in promotion from Group C to Group B or within Group B.In terms of aforementioned letter dated 14.09.2006, Railway Board clarified that that post based roster shall be adopted from the next cycle of selections commencing after the issue of Railway Boards letter No.2005/E(SCT)I/25/14 dated 16.11.2005.Hence Post based roster for Gazetted cadre was not followed for any vacancy filled up to 16.11.2005. Thereafter,rosters were applied in all selections conducted in Group B.We are afraid that this stand cannot be justified. This Court in Virpal Singh Chauhan (supra), having directed the Railways to specifically follow the principles as laid down in R.K. Sabharwal (supra) with effect from 10.02.1995, the post based roster has to be followed from 10.02.1995.
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Jaimal & Anr Vs. Financial Commissioner, Punjab & Ors | money.(6) If there is no such charge as aforesaid the Assistant Collector shall, subject to any direction which he may receive from any court, "pay the purchase money to the landowner.(7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the landowner, or retain the purchase money pending the decision of a civil Court as to the person or persons entitled thereto."4. "Land-owner" is defined in S. 2 (l) of the Act to mean "a person defined as such in the Punjab Land Revenue Act 1887 (Act XVII of 1887), and shall include an "allottee" and "lessee" as defined in clauses (b) and (c) respectively, of Section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 949 (Act XXXW of 1949), hereinafter referred to as the Resettlement Act." The explanation to S. 2 (1) reads:"In respect of land mortgaged with possession, the mortgagee shall be deemed to be the land-owner."5. The word tenant is defined in S. 2 (6) as follows:"Tenant" has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a subtenant and self-cultivating lessee, but shall not include a present holder, as defined in Section 2 of the Resettlement Act."6. In the Land Revenue Act, 1887, land-owner" has been defined as follows, in S. 3 (2):"land-owner " does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate."7. It will be noticed that before a person can apply under S. 18 of the Act he must be a tenant of a land-owner other than a small land-owner. there is no dispute that the land-owner in this case is not a small land-owner. The only question is whether the appellants, who were sub-tenants, can said to be tenants of the land-owner within the meaning of S. 18. If we look at the definitions of the words "tenant" and "land-owne", it seems clear that a tenant of a tenant cannot be a tenant of the land-owner, because the definition expressly says that a land-owner does not include a tenant. Apart from this, the first proviso to sub-s. (1) of S. 18 makes it clear that a tenant who has sublet the land or a portion, as the case may be, to any other person during the period of his continuous occupation is disabled from applying under Section 18 unless during the period of his continuous occupation the tenant was suffering from legal disability or physical infirmity or if a woman was a widow or was unmarried.In other words, for example, a tenant who is a widow would be entitled to apply under S. 18 even though she had sublet the land which she desired to purchase. No satisfactory answer was given by the learned counsel for the appellants as to what would happen if both the subtenant and the widow applied to purchase.8. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do not assist us in determining this question. It is well known that the main objects of the Act were to provide security to the tenants, settle tenants on land declared surplus and fix a ceiling on the total holding of land-owners an tenants. It is also well known that it was a measure of agrarian reform. But these matters do not assist us in interpreting S. 18.9. The answer must depend upon the language of S. 18, fairly construed. If it was intended that a sub-tenant should be entitled to purchase under S.18, we would have expected some provision in the Act to solve the difficulties which would arise if there was competition between the tenant and the subtenant.10. There was some debate before us whether a tenant who has sublet would be treated to be in continuous occupation of the land during the period of sub-tenancy within S. 18 (1) (i), but we think that the proviso to S. 18 (1) proceeds on the basis that the tenant is in continuous occupation even though he has sublet the land.11. It will again be noticed that under sub-s. (4) (b) of S. 18 on the purchase price being deposited, the tenant becomes owner of the land. If the contention of the appellant was correct, the sub-tenant would become the owner under sub-s. (4) (b); but what will happen to the rights of the tenant? No satisfactory answer was given to this question.12. Again it will further be noticed that sub-s. (5) of S. 18 talks of the mortgage of the land but it does not speak of the mortgage of the rights of a tenant.13. It seems to us that the High Court was right in holding that the legislature did not intend to confer any rights under S. 18 on the sub-tenant. The fact that by sub-letting the tenant is also not able to apply under S. 18 by virtue of the first proviso to sub-s. (1) cannot confer rights on the sub-tenant because he must himself be a tenant of land-owner within S. 18 of the Act.14. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases. | 0[ds]8. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do not assist us in determining this question. It is well known that the main objects of the Act were to provide security to the tenants, settle tenants on land declared surplus and fix a ceiling on the total holding of land-owners an tenants. It is also well known that it was a measure of agrarian reform. But these matters do not assist us in interpreting S. 18.9. The answer must depend upon the language of S. 18, fairly construed. If it was intended that a sub-tenant should be entitled to purchase under S.18, we would have expected some provision in the Act to solve the difficulties which would arise if there was competition between the tenant and the subtenant.10. There was some debate before us whether a tenant who has sublet would be treated to be in continuous occupation of the land during the period of sub-tenancy within S. 18 (1) (i), but we think that the proviso to S. 18 (1) proceeds on the basis that the tenant is in continuous occupation even though he has sublet the land.11. It will again be noticed that under sub-s. (4) (b) of S. 18 on the purchase price being deposited, the tenant becomes owner of the land. If the contention of the appellant was correct, the sub-tenant would become the owner under sub-s. (4) (b); but what will happen to the rights of the tenant? No satisfactory answer was given to this question.12. Again it will further be noticed that sub-s. (5) of S. 18 talks of the mortgage of the land but it does not speak of the mortgage of the rights of a tenant.13. It seems to us that the High Court was right in holding that the legislature did not intend to confer any rights under S. 18 on the sub-tenant. The fact that by sub-letting the tenant is also not able to apply under S. 18 by virtue of the first proviso to sub-s. (1) cannot confer rights on the sub-tenant because he must himself be a tenant of land-owner within S. 18 of the Act.14. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases. | 0 | 2,306 | 466 | ### Instruction:
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money.(6) If there is no such charge as aforesaid the Assistant Collector shall, subject to any direction which he may receive from any court, "pay the purchase money to the landowner.(7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the landowner, or retain the purchase money pending the decision of a civil Court as to the person or persons entitled thereto."4. "Land-owner" is defined in S. 2 (l) of the Act to mean "a person defined as such in the Punjab Land Revenue Act 1887 (Act XVII of 1887), and shall include an "allottee" and "lessee" as defined in clauses (b) and (c) respectively, of Section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 949 (Act XXXW of 1949), hereinafter referred to as the Resettlement Act." The explanation to S. 2 (1) reads:"In respect of land mortgaged with possession, the mortgagee shall be deemed to be the land-owner."5. The word tenant is defined in S. 2 (6) as follows:"Tenant" has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a subtenant and self-cultivating lessee, but shall not include a present holder, as defined in Section 2 of the Resettlement Act."6. In the Land Revenue Act, 1887, land-owner" has been defined as follows, in S. 3 (2):"land-owner " does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate."7. It will be noticed that before a person can apply under S. 18 of the Act he must be a tenant of a land-owner other than a small land-owner. there is no dispute that the land-owner in this case is not a small land-owner. The only question is whether the appellants, who were sub-tenants, can said to be tenants of the land-owner within the meaning of S. 18. If we look at the definitions of the words "tenant" and "land-owne", it seems clear that a tenant of a tenant cannot be a tenant of the land-owner, because the definition expressly says that a land-owner does not include a tenant. Apart from this, the first proviso to sub-s. (1) of S. 18 makes it clear that a tenant who has sublet the land or a portion, as the case may be, to any other person during the period of his continuous occupation is disabled from applying under Section 18 unless during the period of his continuous occupation the tenant was suffering from legal disability or physical infirmity or if a woman was a widow or was unmarried.In other words, for example, a tenant who is a widow would be entitled to apply under S. 18 even though she had sublet the land which she desired to purchase. No satisfactory answer was given by the learned counsel for the appellants as to what would happen if both the subtenant and the widow applied to purchase.8. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do not assist us in determining this question. It is well known that the main objects of the Act were to provide security to the tenants, settle tenants on land declared surplus and fix a ceiling on the total holding of land-owners an tenants. It is also well known that it was a measure of agrarian reform. But these matters do not assist us in interpreting S. 18.9. The answer must depend upon the language of S. 18, fairly construed. If it was intended that a sub-tenant should be entitled to purchase under S.18, we would have expected some provision in the Act to solve the difficulties which would arise if there was competition between the tenant and the subtenant.10. There was some debate before us whether a tenant who has sublet would be treated to be in continuous occupation of the land during the period of sub-tenancy within S. 18 (1) (i), but we think that the proviso to S. 18 (1) proceeds on the basis that the tenant is in continuous occupation even though he has sublet the land.11. It will again be noticed that under sub-s. (4) (b) of S. 18 on the purchase price being deposited, the tenant becomes owner of the land. If the contention of the appellant was correct, the sub-tenant would become the owner under sub-s. (4) (b); but what will happen to the rights of the tenant? No satisfactory answer was given to this question.12. Again it will further be noticed that sub-s. (5) of S. 18 talks of the mortgage of the land but it does not speak of the mortgage of the rights of a tenant.13. It seems to us that the High Court was right in holding that the legislature did not intend to confer any rights under S. 18 on the sub-tenant. The fact that by sub-letting the tenant is also not able to apply under S. 18 by virtue of the first proviso to sub-s. (1) cannot confer rights on the sub-tenant because he must himself be a tenant of land-owner within S. 18 of the Act.14. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases.
### Response:
0
### Explanation:
8. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do not assist us in determining this question. It is well known that the main objects of the Act were to provide security to the tenants, settle tenants on land declared surplus and fix a ceiling on the total holding of land-owners an tenants. It is also well known that it was a measure of agrarian reform. But these matters do not assist us in interpreting S. 18.9. The answer must depend upon the language of S. 18, fairly construed. If it was intended that a sub-tenant should be entitled to purchase under S.18, we would have expected some provision in the Act to solve the difficulties which would arise if there was competition between the tenant and the subtenant.10. There was some debate before us whether a tenant who has sublet would be treated to be in continuous occupation of the land during the period of sub-tenancy within S. 18 (1) (i), but we think that the proviso to S. 18 (1) proceeds on the basis that the tenant is in continuous occupation even though he has sublet the land.11. It will again be noticed that under sub-s. (4) (b) of S. 18 on the purchase price being deposited, the tenant becomes owner of the land. If the contention of the appellant was correct, the sub-tenant would become the owner under sub-s. (4) (b); but what will happen to the rights of the tenant? No satisfactory answer was given to this question.12. Again it will further be noticed that sub-s. (5) of S. 18 talks of the mortgage of the land but it does not speak of the mortgage of the rights of a tenant.13. It seems to us that the High Court was right in holding that the legislature did not intend to confer any rights under S. 18 on the sub-tenant. The fact that by sub-letting the tenant is also not able to apply under S. 18 by virtue of the first proviso to sub-s. (1) cannot confer rights on the sub-tenant because he must himself be a tenant of land-owner within S. 18 of the Act.14. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases.
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Bihar State Electricity Board, Patna & Others Vs. M/s. Green Rubber Industries & Others | scheme of the Act seems to show that the provision made in any contract for a minimum charge was really to provide for a fair return on the outlay of the licensee, and it was for this reason that the law allowed the contract of this kind to be entered into. Clause XI-A of the schedule to the Act, as it then stood, provided: "A licensee may charge a consumer a minimum charge for energy of such amount and determine in such manner as may be specified by his licence, and such minimum charge shall be payable notwithstanding that no energy has been used by the consumer during the period for which such minimum charge is made." The court accordingly held that there was nothing illegal in the insertion of the term for payment of a minimum charge in the agreement for supply of energy and held that it had not been made out that it was an unreasonable levy. 21. A Division Bench of Allahabad High Court, in Hari Shankar v. U. P. State Electricity Board (AIR 1974 All 70 : 1974 All LJ 83), held that when the electrical supply was being made on the footing that the consumer would pay the minimum guaranteed charges that charge was one of the terms and conditions for supply and the fixation of that would be included in the fixation rates for the supply of electricity. Similarly in Bhagwan Industries Pvt. Ltd. Lucknow v. U. P. State Electricity Board (AIR 1979 All 249 ), a Division Bench held that an agreement for supply of electricity with the Board empowered it to revise the rates and that imposition of minimum consumption guarantee charge imposed by new tariff schedule under Section 49 of the Supply Act was valid. A Division Bench of the Andhra Pradesh High Court in Md. Abdul Gaffar v. Andhra Pradesh Electricity Board ((1975) 2 APLJ 119), also held that fixation of monthly minimum charges based on connected load and revisional rates for electrical consumption by non-domestic consumers in accordance with the factors in Section 49(2) was neither ultra vires not arbitrary. 22. The High Court in the case at hand relied on Rajeshwar Singh v. State of Bihar (AIR 1983 Pat 194 : 1983 BLJR 429 : 1983 Pat LJR 747), wherein it was held that when the disconnection of electric energy was effected by the Board then it could not ask for the minimum guaranteed charges. That decision must be confined to the facts of that case only. 23. It is true that the agreement is in a standard from a contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed : "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable." Schroeder (A.) Music Publishing Co. Ltd. v. Macaulay ((1974) 3 All ER 616, 624). In such contracts a standard from enables the supplier to say : "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." It is type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pactum and the maxim nudum pactum ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the arrangement comes to an end. Even contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Differences between this contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. In case where such agreement are made the terms are supposed to have been negotiated between the consumer and the Board, and unless specifically assigned, the agreement normally would have affected the consumer with whom it is made, as was held in Northern Ontario Power Co. Ltd. v. La Roche Mines Ltd. ((1938) 3 All ER 755 (PC). 24. For the foregoing reasons we have no hesitation in holding that the agreement was reasonable and valid and it was not determined with the disconnection of supply to the respondent firm by the Board on September 28, 1981 but only according to the stipulations in clause 9(b) of the agreement as discussed above. The liability to pay the minimum guaranteed charges, therefore, continued till the determination of the contract. The Board was, therefore, entitled to submit the bills and make the demand on that account, and recover the same according to law. | 1[ds]11. It is seen that in case of disconnection of the supply by the Board in exercise of its powers under the agreement it would be open for the consumer to apply for reconnection in accordance with the law within the remainder period of the above given compulsorily availing of supply or that of notice whichever is longer, (sic and on his failure to do so) he will be deemed to have given a notice on the date of disconnection in terms of aforesaid clause 9(a) for determination of the agreement and on expiry of the remainder period of compulsorily availing of supply or notice, whichever is longer, the agreement shall cease and determine. It is therefore, clear that in the instant case the disconnection on the default of the consumer have been effected on September 28, 1981 and the consumer having not applied for reconnection, it would be deemed to have given a notice on the date of disconnection in terms of clause 9(a) for the determination of the agreement and the agreement must be taken to have ceased and determined either at the end of the notice or at the end of the period of compulsorily availing of supply i.e. two years of the agreement whichever is longer. The (fresh) agreement having been executed on May 2, 1981 it would expire on May 1, 1983. The disconnection having been effected on September 28, 1981 the period of deemed notice of seven days expired before the period of compulsorily availing of supply under the agreement expired and hence the agreement must be deemed to have determined only on May 1, 1983. During this period the consumers liability to pay the minimum guaranteed charges must be held to have continued12. Mr. Soli J. Sorabjee submits, and we think rightly, that the High Court overlooked this important stipulation in the agreement which was binding on both the parties. However, as the respondents are not before us, it is necessary to consider the reasonability of the stipulation as to minimum guaranteed charges as argued by the learned counsel for the appellant Board. Was there any power of the Board to enter into the agreement ? If so, to what extent ?23. It is true that the agreement is in a standard from a contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed : "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable." Schroeder (A.) Music Publishing Co. Ltd. v. Macaulay ((1974) 3 All ER 616, 624). In such contracts a standard from enables the supplier to say : "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." It is type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pactum and the maxim nudum pactum ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the arrangement comes to an end. Even contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Differences between this contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. In case where such agreement are made the terms are supposed to have been negotiated between the consumer and the Board, and unless specifically assigned, the agreement normally would have affected the consumer with whom it is made, as was held inNorthern Ontario Power Co. Ltd. v. La Roche Mines Ltd. ((1938) 3 All ER 755 (PC)24. For the foregoing reasons we have no hesitation in holding that the agreement was reasonable and valid and it was not determined with the disconnection of supply to the respondent firm by the Board on September 28, 1981 but only according to the stipulations in clause 9(b) of the agreement as discussed above. The liability to pay the minimum guaranteed charges, therefore, continued till the determination of the contract. The Board was, therefore, entitled to submit the bills and make the demand on that account, and recover the same according to law | 1 | 4,769 | 1,042 | ### Instruction:
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scheme of the Act seems to show that the provision made in any contract for a minimum charge was really to provide for a fair return on the outlay of the licensee, and it was for this reason that the law allowed the contract of this kind to be entered into. Clause XI-A of the schedule to the Act, as it then stood, provided: "A licensee may charge a consumer a minimum charge for energy of such amount and determine in such manner as may be specified by his licence, and such minimum charge shall be payable notwithstanding that no energy has been used by the consumer during the period for which such minimum charge is made." The court accordingly held that there was nothing illegal in the insertion of the term for payment of a minimum charge in the agreement for supply of energy and held that it had not been made out that it was an unreasonable levy. 21. A Division Bench of Allahabad High Court, in Hari Shankar v. U. P. State Electricity Board (AIR 1974 All 70 : 1974 All LJ 83), held that when the electrical supply was being made on the footing that the consumer would pay the minimum guaranteed charges that charge was one of the terms and conditions for supply and the fixation of that would be included in the fixation rates for the supply of electricity. Similarly in Bhagwan Industries Pvt. Ltd. Lucknow v. U. P. State Electricity Board (AIR 1979 All 249 ), a Division Bench held that an agreement for supply of electricity with the Board empowered it to revise the rates and that imposition of minimum consumption guarantee charge imposed by new tariff schedule under Section 49 of the Supply Act was valid. A Division Bench of the Andhra Pradesh High Court in Md. Abdul Gaffar v. Andhra Pradesh Electricity Board ((1975) 2 APLJ 119), also held that fixation of monthly minimum charges based on connected load and revisional rates for electrical consumption by non-domestic consumers in accordance with the factors in Section 49(2) was neither ultra vires not arbitrary. 22. The High Court in the case at hand relied on Rajeshwar Singh v. State of Bihar (AIR 1983 Pat 194 : 1983 BLJR 429 : 1983 Pat LJR 747), wherein it was held that when the disconnection of electric energy was effected by the Board then it could not ask for the minimum guaranteed charges. That decision must be confined to the facts of that case only. 23. It is true that the agreement is in a standard from a contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed : "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable." Schroeder (A.) Music Publishing Co. Ltd. v. Macaulay ((1974) 3 All ER 616, 624). In such contracts a standard from enables the supplier to say : "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." It is type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pactum and the maxim nudum pactum ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the arrangement comes to an end. Even contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Differences between this contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. In case where such agreement are made the terms are supposed to have been negotiated between the consumer and the Board, and unless specifically assigned, the agreement normally would have affected the consumer with whom it is made, as was held in Northern Ontario Power Co. Ltd. v. La Roche Mines Ltd. ((1938) 3 All ER 755 (PC). 24. For the foregoing reasons we have no hesitation in holding that the agreement was reasonable and valid and it was not determined with the disconnection of supply to the respondent firm by the Board on September 28, 1981 but only according to the stipulations in clause 9(b) of the agreement as discussed above. The liability to pay the minimum guaranteed charges, therefore, continued till the determination of the contract. The Board was, therefore, entitled to submit the bills and make the demand on that account, and recover the same according to law.
### Response:
1
### Explanation:
11. It is seen that in case of disconnection of the supply by the Board in exercise of its powers under the agreement it would be open for the consumer to apply for reconnection in accordance with the law within the remainder period of the above given compulsorily availing of supply or that of notice whichever is longer, (sic and on his failure to do so) he will be deemed to have given a notice on the date of disconnection in terms of aforesaid clause 9(a) for determination of the agreement and on expiry of the remainder period of compulsorily availing of supply or notice, whichever is longer, the agreement shall cease and determine. It is therefore, clear that in the instant case the disconnection on the default of the consumer have been effected on September 28, 1981 and the consumer having not applied for reconnection, it would be deemed to have given a notice on the date of disconnection in terms of clause 9(a) for the determination of the agreement and the agreement must be taken to have ceased and determined either at the end of the notice or at the end of the period of compulsorily availing of supply i.e. two years of the agreement whichever is longer. The (fresh) agreement having been executed on May 2, 1981 it would expire on May 1, 1983. The disconnection having been effected on September 28, 1981 the period of deemed notice of seven days expired before the period of compulsorily availing of supply under the agreement expired and hence the agreement must be deemed to have determined only on May 1, 1983. During this period the consumers liability to pay the minimum guaranteed charges must be held to have continued12. Mr. Soli J. Sorabjee submits, and we think rightly, that the High Court overlooked this important stipulation in the agreement which was binding on both the parties. However, as the respondents are not before us, it is necessary to consider the reasonability of the stipulation as to minimum guaranteed charges as argued by the learned counsel for the appellant Board. Was there any power of the Board to enter into the agreement ? If so, to what extent ?23. It is true that the agreement is in a standard from a contract. The standard clauses of this contract have been settled over the years and have been widely adopted because experience shows that they facilitate the supply of electric energy. Lord Diplock has observed : "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable." Schroeder (A.) Music Publishing Co. Ltd. v. Macaulay ((1974) 3 All ER 616, 624). In such contracts a standard from enables the supplier to say : "If you want these goods or services at all, these are the only terms on which they are available. Take it or leave it." It is type of contract on which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance and is not open to discussion. It is settled law that a person who signs a document which contains contractual terms is normally bound by them even though he has not read them, even though he is ignorant of the precise legal effect. In view of clause 4 having formed one of the stipulations in the contract along with others it cannot be said to be nudum pactum and the maxim nudum pactum ex quo non oritur actio does not apply. Considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to a consumer involves incurring of overhead installation expenses by the Board which do not vary with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not until the arrangement comes to an end. Even contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause. This agreement with the stipulation of minimum guaranteed charges cannot be held to be ultra vires on the ground that it is incompatible with the statutory duty. Differences between this contractual element and the statutory duty have to be observed. A supply agreement to a consumer makes his relation with the Board mainly contractual, where the basis of supply is held to be statutory rather than contractual. In case where such agreement are made the terms are supposed to have been negotiated between the consumer and the Board, and unless specifically assigned, the agreement normally would have affected the consumer with whom it is made, as was held inNorthern Ontario Power Co. Ltd. v. La Roche Mines Ltd. ((1938) 3 All ER 755 (PC)24. For the foregoing reasons we have no hesitation in holding that the agreement was reasonable and valid and it was not determined with the disconnection of supply to the respondent firm by the Board on September 28, 1981 but only according to the stipulations in clause 9(b) of the agreement as discussed above. The liability to pay the minimum guaranteed charges, therefore, continued till the determination of the contract. The Board was, therefore, entitled to submit the bills and make the demand on that account, and recover the same according to law
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Lakshmi Bangle Stores Vs. Union of India & Others | be on the railway administration who want to non-suit the plaintiff on the ground of limitation to establish that the loss or injury occurred more than one year before the institution of the suit." * 8. No evidence whatsoever was produced by the respondent railway administration to show that the damage to the goods occurred more than 3 years before the suit was instituted. There is on finding in this respect by any of the court below. The High Court decided the issue against the appellant in the following words: "In the present case, the plaintiff deposed that after taking open delivery he made enquiries and came to known that the damage was due to the collision and to the transhipment. Knowing when the collision and transhipment had taken place the plaintiff was himself to blame if he did not file the suit within the prescribed period of limitation." * "In the case before us, the very case of the plaintiff was that the goods were damaged on the date of collision and the date of transhipment. The railway administration was thus relieved of the burden of establishing when the damage was caused. The suit was filed beyond the period prescribed by Article 10 of the Limitation Act read with Section 15 of the Limitation Act." * 9. We do not agree with the High Court. The date of accident was mentioned in the plaint to narrate a fact. It was also averred that the plaintiff came to know about the damage on September 4, 1964 when he received open delivery of the goods. The knowledge of the accident may have given rise to an assumption that the goods were damaged in the accident but the burden of proving that the damage occurred 3 years beyond the date of suit has to be discharged by the railway. There is no material on the record to show that the respondents have done so. The High Court was not justified in relieving the railway administration of its burden. We, therefore, set aside the findings of the High Court on this issue. 10. Since we have decided the limitation issue against the railways it has become necessary to deal with the argument of Mr. R.B. Datar, learned senior advocate appearing for the respondents, on the other issue. He has contended that the High Court wrongly set aside the finding of the trial court on the issue of valuation of the goods. According to him, the appellant cannot be permitted to go back from the valuation of the goods which he declared at the time of booking the consignment. The appellant having declared the value of the consigned goods to be Rs. 25, 000, he cannot now claim Rs. 56, 837.04 for the same.11. The question for our consideration is whether the railway administration is liable to pay the appellant compensation in excess of the valuation which was declared by him at the time of booking the goods, though he was under no legal obligation to make such a declaration. 12. Mr. Datar seeks support from Chunilal v. Governor General in Council 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). Mack, J. who delivered the judgment observed as under : (AIR p. 755, para 3) "An interesting point for determination is whether if plaintiff, though under no legal obligation to value the contents of the box, does so of his own accord, the railway company is legally liable to pay him compensation in excess of his own valuation.... I am of the opinion that where a consignor takes it upon himself specifically to value a box and its contents consigned by rail, it is not open to him to claim from the railway company anything in excess of that valuation and to contend that the box contained more valuable things, an averment, which the railway company may have great difficult in refuting." * 13. Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ) was notice by the High Court but the High Court disagreed with the view taken by Mack, J. in the following words: "The learned Judge did not state the principal on which he was basing his conclusion. If it was his view that the consignor was estopped from claiming more than the value mentioned in the declaration we do not see how there can be any estoppel unless the railway administration had done something in furtherance of the representation contained in the declaration. The learned Judge referred to the difficulty of the railway administration in refuting a claim about the actual value of the goods. That is only a matter of evidence and proof and we would think that the consignor would be under a greater difficulty in proving that the actual value of the goods was higher than that which he himself had voluntarily declared. We, therefore, hold that the valuation mentioned in the forwarding note does not bind the plaintiff." * 14. We have given our thoughtful consideration to the point in issue. We are of the view that the appellant should not be permitted to change the value of the consigned goods at his convenience and to his advantage. The bill produced by the appellant before the trial court to substantiate the value of the goods must be in existence at the time of booking the consignment. There is no explanation whatsoever as to why he declared Rs. 25, 000 as the value of the goods at the time of booking against his claim of Rs. 56, 837.04 at the trial. We see no equity in the stand of the appellant. The rule of fair play in action demands that the appellant be pinned down to the valuation of the consigned goods declared by him voluntarily. We approve the view expressed by Mack, J. in Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). We set aside the findings of the High Court in this respect and restore that of the trial court. | 0[ds]9. We do not agree with the High Court. The date of accident was mentioned in the plaint to narrate a fact. It was also averred that the plaintiff came to know about the damage on September 4, 1964 when he received open delivery of the goods. The knowledge of the accident may have given rise to an assumption that the goods were damaged in the accident but the burden of proving that the damage occurred 3 years beyond the date of suit has to be discharged by the railway. There is no material on the record to show that the respondents have done so. The High Court was not justified in relieving the railway administration of its burden. We, therefore, set aside the findings of the High Court on thisSince we have decided the limitation issue against the railways it has become necessary to deal with the argument of Mr. R.B. Datar, learned senior advocate appearing for the respondents, on the other issue. He has contended that the High Court wrongly set aside the finding of the trial court on the issue of valuation of the goods. According to him, the appellant cannot be permitted to go back from the valuation of the goods which he declared at the time of booking the consignment. The appellant having declared the value of the consigned goods to be Rs. 25, 000, he cannot now claim Rs. 56, 837.04 for theWe have given our thoughtful consideration to the point in issue. We are of the view that the appellant should not be permitted to change the value of the consigned goods at his convenience and to his advantage. The bill produced by the appellant before the trial court to substantiate the value of the goods must be in existence at the time of booking the consignment. There is no explanation whatsoever as to why he declared Rs. 25, 000 as the value of the goods at the time of booking against his claim of Rs. 56, 837.04 at the trial. We see no equity in the stand of the appellant. The rule of fair play in action demands that the appellant be pinned down to the valuation of the consigned goods declared by him voluntarily. We approve the view expressed by Mack, J. in Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). We set aside the findings of the High Court in this respect and restore that of the trial court | 0 | 2,186 | 457 | ### Instruction:
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be on the railway administration who want to non-suit the plaintiff on the ground of limitation to establish that the loss or injury occurred more than one year before the institution of the suit." * 8. No evidence whatsoever was produced by the respondent railway administration to show that the damage to the goods occurred more than 3 years before the suit was instituted. There is on finding in this respect by any of the court below. The High Court decided the issue against the appellant in the following words: "In the present case, the plaintiff deposed that after taking open delivery he made enquiries and came to known that the damage was due to the collision and to the transhipment. Knowing when the collision and transhipment had taken place the plaintiff was himself to blame if he did not file the suit within the prescribed period of limitation." * "In the case before us, the very case of the plaintiff was that the goods were damaged on the date of collision and the date of transhipment. The railway administration was thus relieved of the burden of establishing when the damage was caused. The suit was filed beyond the period prescribed by Article 10 of the Limitation Act read with Section 15 of the Limitation Act." * 9. We do not agree with the High Court. The date of accident was mentioned in the plaint to narrate a fact. It was also averred that the plaintiff came to know about the damage on September 4, 1964 when he received open delivery of the goods. The knowledge of the accident may have given rise to an assumption that the goods were damaged in the accident but the burden of proving that the damage occurred 3 years beyond the date of suit has to be discharged by the railway. There is no material on the record to show that the respondents have done so. The High Court was not justified in relieving the railway administration of its burden. We, therefore, set aside the findings of the High Court on this issue. 10. Since we have decided the limitation issue against the railways it has become necessary to deal with the argument of Mr. R.B. Datar, learned senior advocate appearing for the respondents, on the other issue. He has contended that the High Court wrongly set aside the finding of the trial court on the issue of valuation of the goods. According to him, the appellant cannot be permitted to go back from the valuation of the goods which he declared at the time of booking the consignment. The appellant having declared the value of the consigned goods to be Rs. 25, 000, he cannot now claim Rs. 56, 837.04 for the same.11. The question for our consideration is whether the railway administration is liable to pay the appellant compensation in excess of the valuation which was declared by him at the time of booking the goods, though he was under no legal obligation to make such a declaration. 12. Mr. Datar seeks support from Chunilal v. Governor General in Council 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). Mack, J. who delivered the judgment observed as under : (AIR p. 755, para 3) "An interesting point for determination is whether if plaintiff, though under no legal obligation to value the contents of the box, does so of his own accord, the railway company is legally liable to pay him compensation in excess of his own valuation.... I am of the opinion that where a consignor takes it upon himself specifically to value a box and its contents consigned by rail, it is not open to him to claim from the railway company anything in excess of that valuation and to contend that the box contained more valuable things, an averment, which the railway company may have great difficult in refuting." * 13. Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ) was notice by the High Court but the High Court disagreed with the view taken by Mack, J. in the following words: "The learned Judge did not state the principal on which he was basing his conclusion. If it was his view that the consignor was estopped from claiming more than the value mentioned in the declaration we do not see how there can be any estoppel unless the railway administration had done something in furtherance of the representation contained in the declaration. The learned Judge referred to the difficulty of the railway administration in refuting a claim about the actual value of the goods. That is only a matter of evidence and proof and we would think that the consignor would be under a greater difficulty in proving that the actual value of the goods was higher than that which he himself had voluntarily declared. We, therefore, hold that the valuation mentioned in the forwarding note does not bind the plaintiff." * 14. We have given our thoughtful consideration to the point in issue. We are of the view that the appellant should not be permitted to change the value of the consigned goods at his convenience and to his advantage. The bill produced by the appellant before the trial court to substantiate the value of the goods must be in existence at the time of booking the consignment. There is no explanation whatsoever as to why he declared Rs. 25, 000 as the value of the goods at the time of booking against his claim of Rs. 56, 837.04 at the trial. We see no equity in the stand of the appellant. The rule of fair play in action demands that the appellant be pinned down to the valuation of the consigned goods declared by him voluntarily. We approve the view expressed by Mack, J. in Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). We set aside the findings of the High Court in this respect and restore that of the trial court.
### Response:
0
### Explanation:
9. We do not agree with the High Court. The date of accident was mentioned in the plaint to narrate a fact. It was also averred that the plaintiff came to know about the damage on September 4, 1964 when he received open delivery of the goods. The knowledge of the accident may have given rise to an assumption that the goods were damaged in the accident but the burden of proving that the damage occurred 3 years beyond the date of suit has to be discharged by the railway. There is no material on the record to show that the respondents have done so. The High Court was not justified in relieving the railway administration of its burden. We, therefore, set aside the findings of the High Court on thisSince we have decided the limitation issue against the railways it has become necessary to deal with the argument of Mr. R.B. Datar, learned senior advocate appearing for the respondents, on the other issue. He has contended that the High Court wrongly set aside the finding of the trial court on the issue of valuation of the goods. According to him, the appellant cannot be permitted to go back from the valuation of the goods which he declared at the time of booking the consignment. The appellant having declared the value of the consigned goods to be Rs. 25, 000, he cannot now claim Rs. 56, 837.04 for theWe have given our thoughtful consideration to the point in issue. We are of the view that the appellant should not be permitted to change the value of the consigned goods at his convenience and to his advantage. The bill produced by the appellant before the trial court to substantiate the value of the goods must be in existence at the time of booking the consignment. There is no explanation whatsoever as to why he declared Rs. 25, 000 as the value of the goods at the time of booking against his claim of Rs. 56, 837.04 at the trial. We see no equity in the stand of the appellant. The rule of fair play in action demands that the appellant be pinned down to the valuation of the consigned goods declared by him voluntarily. We approve the view expressed by Mack, J. in Chunilal case 1949 AIR(Mad) 754 : 1949 (1) MLJ 538 ). We set aside the findings of the High Court in this respect and restore that of the trial court
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M.S. Narayana Menon @ Mani Vs. State Of Kerala | fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law." 50. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent: (i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding. In Harbhajan Singh v. State of Punjab and another [AIR 1966 SC 97 ], this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of exception 9 to Section 499 of the Indian Penal Code stated the law as under: "In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him..." 51. In V.D. Jhingan v. State of Uttar Pradesh, [AIR 1966 SC 1762 ], it was stated: "It is well-established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt" [See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186 ] 52. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808] , Khanna, J., speaking for the 3-Judge Bench, held: "One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal." 53. In The State through the Delhi Administration v. Sanjay Gandhi [AIR 1978 SC 961 ], it was stated: "Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused" 54. The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to do so. 55. The submission of the Second Respondent that the Appellant had not denied his entire responsibility and the dispute relating only to the quantum of debt cannot be accepted. 56. We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act. 57. We have gone through the oral evidences. The Second Respondent has even failed to prove that the Appellant had paid to him a sum of Rs. 5000/- by cash. 58. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.59. | 1[ds]The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to dosubmission of the Second Respondent that the Appellant had not denied his entire responsibility and the dispute relating only to the quantum of debt cannot bein the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of thehave gone through the oral evidences. The Second Respondent has even failed to prove that the Appellant had paid to him a sum of Rs. 5000/- byany event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. | 1 | 7,715 | 341 | ### 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:
fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law." 50. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent: (i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding. In Harbhajan Singh v. State of Punjab and another [AIR 1966 SC 97 ], this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of exception 9 to Section 499 of the Indian Penal Code stated the law as under: "In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him..." 51. In V.D. Jhingan v. State of Uttar Pradesh, [AIR 1966 SC 1762 ], it was stated: "It is well-established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt" [See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186 ] 52. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808] , Khanna, J., speaking for the 3-Judge Bench, held: "One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal." 53. In The State through the Delhi Administration v. Sanjay Gandhi [AIR 1978 SC 961 ], it was stated: "Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused" 54. The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to do so. 55. The submission of the Second Respondent that the Appellant had not denied his entire responsibility and the dispute relating only to the quantum of debt cannot be accepted. 56. We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act. 57. We have gone through the oral evidences. The Second Respondent has even failed to prove that the Appellant had paid to him a sum of Rs. 5000/- by cash. 58. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.59.
### Response:
1
### Explanation:
The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to dosubmission of the Second Respondent that the Appellant had not denied his entire responsibility and the dispute relating only to the quantum of debt cannot bein the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of thehave gone through the oral evidences. The Second Respondent has even failed to prove that the Appellant had paid to him a sum of Rs. 5000/- byany event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
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THE ASSISTANT COMMISSIONER OF INCOME TAX 12(3)(2) & ORS Vs. MARICO LTD | 1. Delay condoned. 2. In the present matter, the assessment order was passed on 30.01.2018 as regards the Assessment Year 2014-15. 3. According to the record, certain queries were raised by the Assessing Officer on 25.09.2017 during the assessment proceedings which were responded to by the Assessee vide letters dated 10.10.2017 and 21.12.2017. 4. After considering said responses, the assessment order was passed on 30.01.2018. 5. Subsequently, by notice dated 27.03.2019 issued under Section 148 of the Income-Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its judgment observed as under: 12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside. | 0[ds]5. Subsequently, by notice dated 27.03.2019 issued under Section 148 of the Income-Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its judgment observed as under:12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside. | 0 | 260 | 186 | ### 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:
1. Delay condoned. 2. In the present matter, the assessment order was passed on 30.01.2018 as regards the Assessment Year 2014-15. 3. According to the record, certain queries were raised by the Assessing Officer on 25.09.2017 during the assessment proceedings which were responded to by the Assessee vide letters dated 10.10.2017 and 21.12.2017. 4. After considering said responses, the assessment order was passed on 30.01.2018. 5. Subsequently, by notice dated 27.03.2019 issued under Section 148 of the Income-Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its judgment observed as under: 12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside.
### Response:
0
### Explanation:
5. Subsequently, by notice dated 27.03.2019 issued under Section 148 of the Income-Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its judgment observed as under:12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside.
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Pardeep Kumar Jain Vs. Citi Bank | damages payable towards those who died in the accident. The complaint before the Commission was based on the deficiency in service on the part of the first and second respondent inasmuch as he had suffered a loss to the extent of Rs. 1,55,000/- being the market value of the car on the date of the accident and he was likely to be fastened with the liability of the third party claims to the tune of Rs. 18 lakhs filed by the legal representative of the deceased occupants of the car before the Motor Accident Claims Tribunal, Rewari and to keep the appellant indemnified against all such claims. He also claimed a sum of Rs. 1 lakh for mental agony and suffering caused to him due to gross negligence of the opposite parties to discharge their services. 2. The Commission, however, felt that the question of payment of compensation arising out of fatal accident would fall within the ambit of Section 165 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), and following the decision of this Court in Chairman, Thiruvalluvar Transport Corporation v. The Consumer Protection Council, JT 1995(2) SC 441 , did not advert to the allegations or material on record in that regard. The Commission also noticed that a claim by the legal heirs of the deceased occupants had already been made before the appropriate Tribunal. Thus the Commission refrained from going to the liability of the insurer for the third party claims or grant any relief into the appellant. 3. On the question of the manner in which the first respondent-bank treated the two cheques, the stand of the Bank is that it may be assumed for the purpose of proceedings before the Commission without prejudice to their rights in other proceedings that the premium cheques were not delivered by the Citi Bank to the insurance company although undertaken by the Citi Bank and thus there has been negligence on the part of the Citi Bank and there is deficiency of service. Therefore, the Commission took the view that the loss payable by the insurer arising out of the accident to the vehicle is Rs. 76,990/- on the basis of the sum assured for the first year less 10% depreciation for one year and ordered accordingly. The Commission proceeded on the basis that if the first respondent had not neglected in its duty to take the renewal of the policy for the next year and had, in fact, got the policy renewed then the insurance company would have settled the claim within a reasonable period and thus the concession made by the first respondent would have to be taken to its logical end. The Commission passed an order to that effect. 4. In this Court the contention put forth before us now in this appeal is that the Commission should have proceeded further and held that the Bank is liable for damages payable by the appellant for want of insurance of the vehicle as determined by the Motor Accident Claims Tribunal. Inasmuch as insurance policy had not been taken out, the appellant has been left high and dry and, therefore, he had to meet that damage. 5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent. 6. In the case of life insurance policy certain sum agreed to be paid by the insurance company in the event of the death of the insured or a contingency arising as indicated in the policy. The obligation is then on the insured to pay the premiums periodically. There is no other obligation upon him. In the case of a motor vehicle, the risk to be covered is not only in respect of a vehicle but also towards the injury to others or damage caused to the property arising out of an accident. In such an event, when the policy is renewed or a fresh policy is applied for, an application has to be given and it is to be indicated whether any claim had been made in the previous year or not and to furnish appropriate material as regards the valuation of the vehicle. It can also be made clear as to the nature and extent of the risk covered whether it is only third party or comprehensive or otherwise. The obligation under the Act is only at least to cover third party risk. Thus mere payment of premium could not result in an automatic renewal of the policy. In the circumstances, we find that the appellant also had certain duties to discharge in the matter of obtaining insurance policy and cannot merely put the blame on the first respondent. | 1[ds]5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent6. In the case of life insurance policy certain sum agreed to be paid by the insurance company in the event of the death of the insured or a contingency arising as indicated in the policy. The obligation is then on the insured to pay the premiums periodically. There is no other obligation upon him. In the case of a motor vehicle, the risk to be covered is not only in respect of a vehicle but also towards the injury to others or damage caused to the property arising out of an accident. In such an event, when the policy is renewed or a fresh policy is applied for, an application has to be given and it is to be indicated whether any claim had been made in the previous year or not and to furnish appropriate material as regards the valuation of the vehicle. It can also be made clear as to the nature and extent of the risk covered whether it is only third party or comprehensive or otherwise. The obligation under the Act is only at least to cover third party risk. Thus mere payment of premium could not result in an automatic renewal of the policy. In the circumstances, we find that the appellant also had certain duties to discharge in the matter of obtaining insurance policy and cannot merely put the blame on the first respondent. | 1 | 1,455 | 499 | ### 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:
damages payable towards those who died in the accident. The complaint before the Commission was based on the deficiency in service on the part of the first and second respondent inasmuch as he had suffered a loss to the extent of Rs. 1,55,000/- being the market value of the car on the date of the accident and he was likely to be fastened with the liability of the third party claims to the tune of Rs. 18 lakhs filed by the legal representative of the deceased occupants of the car before the Motor Accident Claims Tribunal, Rewari and to keep the appellant indemnified against all such claims. He also claimed a sum of Rs. 1 lakh for mental agony and suffering caused to him due to gross negligence of the opposite parties to discharge their services. 2. The Commission, however, felt that the question of payment of compensation arising out of fatal accident would fall within the ambit of Section 165 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), and following the decision of this Court in Chairman, Thiruvalluvar Transport Corporation v. The Consumer Protection Council, JT 1995(2) SC 441 , did not advert to the allegations or material on record in that regard. The Commission also noticed that a claim by the legal heirs of the deceased occupants had already been made before the appropriate Tribunal. Thus the Commission refrained from going to the liability of the insurer for the third party claims or grant any relief into the appellant. 3. On the question of the manner in which the first respondent-bank treated the two cheques, the stand of the Bank is that it may be assumed for the purpose of proceedings before the Commission without prejudice to their rights in other proceedings that the premium cheques were not delivered by the Citi Bank to the insurance company although undertaken by the Citi Bank and thus there has been negligence on the part of the Citi Bank and there is deficiency of service. Therefore, the Commission took the view that the loss payable by the insurer arising out of the accident to the vehicle is Rs. 76,990/- on the basis of the sum assured for the first year less 10% depreciation for one year and ordered accordingly. The Commission proceeded on the basis that if the first respondent had not neglected in its duty to take the renewal of the policy for the next year and had, in fact, got the policy renewed then the insurance company would have settled the claim within a reasonable period and thus the concession made by the first respondent would have to be taken to its logical end. The Commission passed an order to that effect. 4. In this Court the contention put forth before us now in this appeal is that the Commission should have proceeded further and held that the Bank is liable for damages payable by the appellant for want of insurance of the vehicle as determined by the Motor Accident Claims Tribunal. Inasmuch as insurance policy had not been taken out, the appellant has been left high and dry and, therefore, he had to meet that damage. 5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent. 6. In the case of life insurance policy certain sum agreed to be paid by the insurance company in the event of the death of the insured or a contingency arising as indicated in the policy. The obligation is then on the insured to pay the premiums periodically. There is no other obligation upon him. In the case of a motor vehicle, the risk to be covered is not only in respect of a vehicle but also towards the injury to others or damage caused to the property arising out of an accident. In such an event, when the policy is renewed or a fresh policy is applied for, an application has to be given and it is to be indicated whether any claim had been made in the previous year or not and to furnish appropriate material as regards the valuation of the vehicle. It can also be made clear as to the nature and extent of the risk covered whether it is only third party or comprehensive or otherwise. The obligation under the Act is only at least to cover third party risk. Thus mere payment of premium could not result in an automatic renewal of the policy. In the circumstances, we find that the appellant also had certain duties to discharge in the matter of obtaining insurance policy and cannot merely put the blame on the first respondent.
### Response:
1
### Explanation:
5. Under Section 146 of the Act there is an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act. If any vehicle is driven without obtaining such an insurance policy it is punishable under Section 196 of the Act. The policy may be comprehensive or only covering third parties or liability may be limited. Thus when the obligation was upon the appellant to obtain such a policy, merely by passing of a cheque to be sent to the insurance company would not obviate his liability to obtain such policy. It is not clear on the record as to the nature of policy that had been obtained by the appellant earlier when he purchased the vehicle and which was to be renewed from time to time. It is also not clear whether even in the case of renewal, a fresh application has to be made by the appellant or on the old policy itself an endorsement would have been made. In the absence of such material on record, and the nature of the insurance policy or any anxiety shown by the appellant in obtaining the policy as he could not ply such vehicle without such an insurance policy being obtained, he cannot claim that merely because he had passed on the cheques, the entire liability to pay all damages arising would be upon the first respondent6. In the case of life insurance policy certain sum agreed to be paid by the insurance company in the event of the death of the insured or a contingency arising as indicated in the policy. The obligation is then on the insured to pay the premiums periodically. There is no other obligation upon him. In the case of a motor vehicle, the risk to be covered is not only in respect of a vehicle but also towards the injury to others or damage caused to the property arising out of an accident. In such an event, when the policy is renewed or a fresh policy is applied for, an application has to be given and it is to be indicated whether any claim had been made in the previous year or not and to furnish appropriate material as regards the valuation of the vehicle. It can also be made clear as to the nature and extent of the risk covered whether it is only third party or comprehensive or otherwise. The obligation under the Act is only at least to cover third party risk. Thus mere payment of premium could not result in an automatic renewal of the policy. In the circumstances, we find that the appellant also had certain duties to discharge in the matter of obtaining insurance policy and cannot merely put the blame on the first respondent.
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State of West Bengal and Another Vs. Surendra Nath Bhattacharya and Another | the products of the company and have stressed the fact that the articles produced by the company are used for the benefit of the people and as it saves lot of foreign exchange, it is unmistakably for the general good of the country particularly from the economic point of view. In these circumstances, it cannot be said that the object of the company in extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the company, its various activities, the general public good that it seeks to achieve and the great benefit that the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court it is sufficient if it is shown that the building sought to be built or the work undertaken subserves the public purpose of the company which is completely fulfilled in this case. The High Court seems to have been impressed by the argument advanced before it that the land acquisition proceedings in the instant c ase are hit by s. 44B of the Act. The High Court, however, has failed to consider that s. 44B is purely prospective in character and has absolutely no application to acquisition proceedings taken before July 20, 1962, the date when the amendment wa s enacted.The High Court also seems to have accepted the argument of the first respondent that s. 40(aa) violates Art. 14 of the Constitution inasmuch as it permits acquisition of land for a company but not for an individual or a private company though these persons may also be engaged in an industry which was for a public purpose. This argument was repelled by this Court and it was held that s. 40(aa) was not violative of Art. 14. In this connection, this Court observed as follows:-"Therefore a distinction in the matter of acquisition of land between public companies and Government companies on the one hand and private individuals and private companies on the other is in our opinion justified, considering the object behind cl. (aa) as introduced into the Act. The contention under this head must therefore also fail."10. Some of the High Courts also have taken a similar view which has found favour with us in vie w of the second Arora case, referred to above. In the case of P. Girdharan Prasad Missir and Anr. v. State of Bihar &Anr. a Division Bench of the Patna High Court while dealing with this question observed as follows:-"Thirdly, it was urged that the acquisition was not for a public purpose but merely for the purpose of helping a person (here the company) to make profits. This argument, however, is no longer available. It is well known that sugar industry is one of the important industries of India engaged in the production of an essential commodity, and the fostering of the growth of that industry is undoubtedly for a public purpose. A company engaged in the manufacture of sugar would, therefore, come within the scope of clause (a) of sub-section (1) of section 40 of the Act."11. A Division Bench of the Gujarat High Court in Chhotubhai Babarbhai Patel v. State of Gujarat and Anr. while construing the second Arora case referred to above clearly held that s. 40(aa) contemplated that the building or work which the company intended to construct was to subserve the public purpose of the industry or work for which it was being constructed. In that case also, the company concerned was manufacturing caustic soda, dyes, chemicals, colours and drugs (caustic soda is one of the products of the company in the instant case also). Dwelling on the importance of the public purpose of the industry concerned in that case, Shelat, C. J., observed as follows:-"Taking all these factors into consideration, it is not possible to deny that the industry in which the second respondent company is already engaged and is about to be engaged in, and for the buildings or works for which the lands in question are being acquired is such that it will promote public purpose and will be in the interest of the public."12. We find ourselves in complete agreement with the aforesaid observations of the learned Chief Justice.Finally, even in the second Arora case, it would appear that the company in question was engaged in the production of textile machinery and its parts which were for the use of the general public. This was held by this Court to be a definite public purpose behind the acquisition. In this connection, this Court observed as follows:-"We are concerned here with acquisition for a public purpose, which is undisputed. This is not a case of a house of one person being requisitioned for another; this is a case of constructing some work which will be useful to the public and will subserve the public purpose of the production of textile machinery and its parts for the use of the general public. In the circumstances we are of opinion that there being a definite public purpose behind the acquisition in the present case, the acquisition would be justified under the Act irrespective of the intention of the previous owner of the land to use it for some other public purpose."13. The industrial venture in which respondent No. 2 was engaged was undoubtedly of much greater use than a company producing textile machinery because apart from being useful to the people at large and producing chemicals it has also resulted in saving lot of foreign exchange and thus improving the economy of our country so as to be an efficient instrument of economic benefit. We are satisfied that all the conditions of s. 7 of the Amending Act as also that of s. 40(aa) have been fulfilled in the instant case and the High Court was wrong in law in quashing the said proceedings.14. | 1[ds]The High Court undoubtedly referred to the "first Arora case" as also to the "second Arora case" but, with due respect, we might observe that the High Court relied mainly on the observations made in the "first Arora case" and has not correctly interpreted the later decision of this Court and the effect of the amendment which completely superseded the "first Arora case". The argument of the learned counsel before us centered round the interpretation of s. 40(aa) as amended by the amendment as also s. 7 of the Amending Act. In order to understand the scope of the argument it may be necessary to extract both s. 40(a a) and s. 7 of the Amending Act, which runValidation of certain acquisitions Notwithstanding any judgment, decree or order of any court, every acquisition of land for a company made or purporting to have been made under Part VII of the principal Act before the 20th day of July 1962, shall, in so far as such acquisition is not for any of the purposes mentioned in clause (a) or clause (b) of sub- section (1) of section 40 of the principal Act, be deemed to have been made for the purpose mentioned in clause (aa) of the said sub-section, and accordingly every such acquisition and any proceeding, order, agreement or action in connection with such acquisition shall be, and shall be deemed always to have been, as valid as if the provisions of sections 40 and 41 of the principal Act, as amended by this Act, were in force at all material times when such acquisition was made or proceeding was held or order was made or agreement was entered into or action wasthis aspect of the matter, the view taken by this Court in the "second Arora case" was followed in a recent decision of this Court in Himalayan Tiles and Marbles v. Francis Victor Coutinho (dead) by Lrs. In the instant case, it is not disputed that the proceedings for acquisition were started long before July 20, 1962, that is to say, as early as December 9, 1954 when notification under s. 6 of the Act was issued. Secondly, it is also not disputed that after inviting objections, etc., an Award was made by the Collector on October 14, 1957 and after the property in dispute fully vested in the Government, the Collector then delivered the same to the company-respondent No. 2 on October 23, 1957. For these reasons, the facts of the present case squarely fall within the ambit of the conditions laid down by s. 7 of the Amending Act and hence the challenge on the ground of the constitutional validity of the acquisition must necessarilywe have to see whether the provision in cl. (aa) bears another construction also in the setting in which it appears and in the circumstances in which it was put on the statute book and also in view of the language used in the clause. The circumstances in which the amendment came to be made have already been mentioned by us and the intention of Parliament clearly was to fill up the lacuna in the Act which became evident on the decision of this Court in R. L. Aroras case (1962 Supp. 2 SCR 149)...... It was only for such a company that land was to be acquired compulsorily and the acquisition was for the construction of some building or work for such a company, i.e., a company engaged or about to be engaged in some industry or work which is for a public purpose. In this setting it seems to us reasonable to hold that the intention of Parliament could only have been that land should be acquired for such building or work for a company as would subserve the public purpose of the company; it could not have been intended, considering the setting in which cl. (aa) was introduced, that land could be acquired for a building or work which would not subserve the public purpose of the company....Further, acquisition is for the construction of some building or work for a company a nd the nature of that company is that it is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. When therefore the building or work is for such a company it seems to us that it is reasonable to hold that the nature of the building or work to be constructed takes colour from the nature of the company for which it is to be constructed. We are therefore of opinion that the literal and mechanical construction for which the petitioner contends is neither the only nor the true construction of cl. (aa) and that when cl. (aa) provides for acquisition of land needed for construction of some building or work it implicitly intends that the building or work which is to be constructed must be such as to subserve the public purpose of the industry or work in which the company is engaged or is about to be engaged. In short, the words "building or work" used in cl. (aa) take their colour from the adjectival clause which governs the company for which the building or work is being constructed.... It is only in these cases where the company is engaged in an industry or work of that kind and where the building or work is also constructed for a purpose of that kind, which is a public purpose, that acquisition can be made under cl. (aa). As we read the clause we are of opinion that the public purpose of the company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a company to acquire land under cl. (aa) for a building or work which will not subserve the public purpose of the company." (Emphasiseffect of the observations made above leads to the irresistible conclusion that the words public purpose are not to be interpreted in a restricted sense but take colour fro m the nature of the industry itself, the articles that it manufactures and the benefit to the people that it subserves. This Court clearly indicated that the land should be acquired for building or work which would serve the public purpose of the company and not public purpose as it is generally understood. In the instant case, we have also set out the nature of the products of the company and have stressed the fact that the articles produced by the company are used for the benefit of the people and as it saves lot of foreign exchange, it is unmistakably for the general good of the country particularly from the economic point of view. In these circumstances, it cannot be said that the object of the company in extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the company, its various activities, the general public good that it seeks to achieve and the great benefit that the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court it is sufficient if it is shown that the building sought to be built or the work undertaken subserves the public purpose of the company which is completely fulfilled in this case. The High Court seems to have been impressed by the argument advanced before it that the land acquisition proceedings in the instant c ase are hit by s. 44B of the Act. The High Court, however, has failed to consider that s. 44B is purely prospective in character and has absolutely no application to acquisition proceedings taken before July 20, 1962, the date when the amendment wa s enacted.The High Court also seems to have accepted the argument of the first respondent that s. 40(aa) violates Art. 14 of the Constitution inasmuch as it permits acquisition of land for a company but not for an individual or a private company though these persons may also be engaged in an industry which was for a public purpose. This argument was repelled by this Court and it was held that s. 40(aa) was not violative of Art.find ourselves in complete agreement with the aforesaid observations of the learned Chief Justice.Finally, even in the second Arora case, it would appear that the company in question was engaged in the production of textile machinery and its parts which were for the use of the general public. This was held by this Court to be a definite public purpose behind theindustrial venture in which respondent No. 2 was engaged was undoubtedly of much greater use than a company producing textile machinery because apart from being useful to the people at large and producing chemicals it has also resulted in saving lot of foreign exchange and thus improving the economy of our country so as to be an efficient instrument of economic benefit. We are satisfied that all the conditions of s. 7 of the Amending Act as also that of s. 40(aa) have been fulfilled in the instant case and the High Court was wrong in law in quashing the said proceedings. | 1 | 4,211 | 1,712 | ### Instruction:
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the products of the company and have stressed the fact that the articles produced by the company are used for the benefit of the people and as it saves lot of foreign exchange, it is unmistakably for the general good of the country particularly from the economic point of view. In these circumstances, it cannot be said that the object of the company in extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the company, its various activities, the general public good that it seeks to achieve and the great benefit that the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court it is sufficient if it is shown that the building sought to be built or the work undertaken subserves the public purpose of the company which is completely fulfilled in this case. The High Court seems to have been impressed by the argument advanced before it that the land acquisition proceedings in the instant c ase are hit by s. 44B of the Act. The High Court, however, has failed to consider that s. 44B is purely prospective in character and has absolutely no application to acquisition proceedings taken before July 20, 1962, the date when the amendment wa s enacted.The High Court also seems to have accepted the argument of the first respondent that s. 40(aa) violates Art. 14 of the Constitution inasmuch as it permits acquisition of land for a company but not for an individual or a private company though these persons may also be engaged in an industry which was for a public purpose. This argument was repelled by this Court and it was held that s. 40(aa) was not violative of Art. 14. In this connection, this Court observed as follows:-"Therefore a distinction in the matter of acquisition of land between public companies and Government companies on the one hand and private individuals and private companies on the other is in our opinion justified, considering the object behind cl. (aa) as introduced into the Act. The contention under this head must therefore also fail."10. Some of the High Courts also have taken a similar view which has found favour with us in vie w of the second Arora case, referred to above. In the case of P. Girdharan Prasad Missir and Anr. v. State of Bihar &Anr. a Division Bench of the Patna High Court while dealing with this question observed as follows:-"Thirdly, it was urged that the acquisition was not for a public purpose but merely for the purpose of helping a person (here the company) to make profits. This argument, however, is no longer available. It is well known that sugar industry is one of the important industries of India engaged in the production of an essential commodity, and the fostering of the growth of that industry is undoubtedly for a public purpose. A company engaged in the manufacture of sugar would, therefore, come within the scope of clause (a) of sub-section (1) of section 40 of the Act."11. A Division Bench of the Gujarat High Court in Chhotubhai Babarbhai Patel v. State of Gujarat and Anr. while construing the second Arora case referred to above clearly held that s. 40(aa) contemplated that the building or work which the company intended to construct was to subserve the public purpose of the industry or work for which it was being constructed. In that case also, the company concerned was manufacturing caustic soda, dyes, chemicals, colours and drugs (caustic soda is one of the products of the company in the instant case also). Dwelling on the importance of the public purpose of the industry concerned in that case, Shelat, C. J., observed as follows:-"Taking all these factors into consideration, it is not possible to deny that the industry in which the second respondent company is already engaged and is about to be engaged in, and for the buildings or works for which the lands in question are being acquired is such that it will promote public purpose and will be in the interest of the public."12. We find ourselves in complete agreement with the aforesaid observations of the learned Chief Justice.Finally, even in the second Arora case, it would appear that the company in question was engaged in the production of textile machinery and its parts which were for the use of the general public. This was held by this Court to be a definite public purpose behind the acquisition. In this connection, this Court observed as follows:-"We are concerned here with acquisition for a public purpose, which is undisputed. This is not a case of a house of one person being requisitioned for another; this is a case of constructing some work which will be useful to the public and will subserve the public purpose of the production of textile machinery and its parts for the use of the general public. In the circumstances we are of opinion that there being a definite public purpose behind the acquisition in the present case, the acquisition would be justified under the Act irrespective of the intention of the previous owner of the land to use it for some other public purpose."13. The industrial venture in which respondent No. 2 was engaged was undoubtedly of much greater use than a company producing textile machinery because apart from being useful to the people at large and producing chemicals it has also resulted in saving lot of foreign exchange and thus improving the economy of our country so as to be an efficient instrument of economic benefit. We are satisfied that all the conditions of s. 7 of the Amending Act as also that of s. 40(aa) have been fulfilled in the instant case and the High Court was wrong in law in quashing the said proceedings.14.
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was for the construction of some building or work for such a company, i.e., a company engaged or about to be engaged in some industry or work which is for a public purpose. In this setting it seems to us reasonable to hold that the intention of Parliament could only have been that land should be acquired for such building or work for a company as would subserve the public purpose of the company; it could not have been intended, considering the setting in which cl. (aa) was introduced, that land could be acquired for a building or work which would not subserve the public purpose of the company....Further, acquisition is for the construction of some building or work for a company a nd the nature of that company is that it is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. When therefore the building or work is for such a company it seems to us that it is reasonable to hold that the nature of the building or work to be constructed takes colour from the nature of the company for which it is to be constructed. We are therefore of opinion that the literal and mechanical construction for which the petitioner contends is neither the only nor the true construction of cl. (aa) and that when cl. (aa) provides for acquisition of land needed for construction of some building or work it implicitly intends that the building or work which is to be constructed must be such as to subserve the public purpose of the industry or work in which the company is engaged or is about to be engaged. In short, the words "building or work" used in cl. (aa) take their colour from the adjectival clause which governs the company for which the building or work is being constructed.... It is only in these cases where the company is engaged in an industry or work of that kind and where the building or work is also constructed for a purpose of that kind, which is a public purpose, that acquisition can be made under cl. (aa). As we read the clause we are of opinion that the public purpose of the company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a company to acquire land under cl. (aa) for a building or work which will not subserve the public purpose of the company." (Emphasiseffect of the observations made above leads to the irresistible conclusion that the words public purpose are not to be interpreted in a restricted sense but take colour fro m the nature of the industry itself, the articles that it manufactures and the benefit to the people that it subserves. This Court clearly indicated that the land should be acquired for building or work which would serve the public purpose of the company and not public purpose as it is generally understood. In the instant case, we have also set out the nature of the products of the company and have stressed the fact that the articles produced by the company are used for the benefit of the people and as it saves lot of foreign exchange, it is unmistakably for the general good of the country particularly from the economic point of view. In these circumstances, it cannot be said that the object of the company in extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the company, its various activities, the general public good that it seeks to achieve and the great benefit that the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court it is sufficient if it is shown that the building sought to be built or the work undertaken subserves the public purpose of the company which is completely fulfilled in this case. The High Court seems to have been impressed by the argument advanced before it that the land acquisition proceedings in the instant c ase are hit by s. 44B of the Act. The High Court, however, has failed to consider that s. 44B is purely prospective in character and has absolutely no application to acquisition proceedings taken before July 20, 1962, the date when the amendment wa s enacted.The High Court also seems to have accepted the argument of the first respondent that s. 40(aa) violates Art. 14 of the Constitution inasmuch as it permits acquisition of land for a company but not for an individual or a private company though these persons may also be engaged in an industry which was for a public purpose. This argument was repelled by this Court and it was held that s. 40(aa) was not violative of Art.find ourselves in complete agreement with the aforesaid observations of the learned Chief Justice.Finally, even in the second Arora case, it would appear that the company in question was engaged in the production of textile machinery and its parts which were for the use of the general public. This was held by this Court to be a definite public purpose behind theindustrial venture in which respondent No. 2 was engaged was undoubtedly of much greater use than a company producing textile machinery because apart from being useful to the people at large and producing chemicals it has also resulted in saving lot of foreign exchange and thus improving the economy of our country so as to be an efficient instrument of economic benefit. We are satisfied that all the conditions of s. 7 of the Amending Act as also that of s. 40(aa) have been fulfilled in the instant case and the High Court was wrong in law in quashing the said proceedings.
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The State Of Bombay Vs. Ali Gulshan | it was wanted for a public purpose.5. The ultimate source of authority to requisition or acquire property is to be found in Art. 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This Article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I and List II of the Seventh Schedule to the Constitution empowers respectively Parliament and the State Legislatures to enact laws with respect to them.6. The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this. There can be no public purpose, which is not a purpose of the Union or a purpose of the State.There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the state".The provision of accommodation for a member of the foreign consulate staff is a "purpose of the Union" and not a "purpose of the State".7. We are unable to uphold this view as regards both the standpoints. Item 33 in the Union Legislative List (List I) refers to "acquisition or requisitioning of property for the purposes of the union." Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III." Item 42 of the Concurrent Legislative List (List Ill) speaks of "the purpose of the Union or of a State or any other public purpose".Reading the three items together, it is fairly obvious thatthe categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose. Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose.Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not strictly be a State or Union purpose.When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular thing for the benefit of the public or a section of the public.Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at heart, will fall within the third category above mentioned.8. With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the Court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has scarcely any application.Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should received their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied.9. If the words "any other public purpose, in the statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.10. Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.Item II in the Union list specifies " diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, And under Art. 73 of the Constitution, the executive power of the Union shall extend to all such matters.11. It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate. It was conceded by Mr. Rajinder Narain, Counsel for the respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador.12. The trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is Primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.13.In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.14. There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose. In this view also the requisition in this case must be held to have been validly made.15. For the reasons given above, | 1[ds]4. The validity of the Act is not questioned as unconstitutional or us beyond the scope of the legislative competence of the State. As the premises were required for housing a member of the staff of a Consulate, there can be no doubt that it was wanted for a public purpose.5. The ultimate source of authority to requisition or acquire property is to be found in Art. 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This Article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I and List II of the Seventh Schedule to the Constitution empowers respectively Parliament and the State Legislatures to enact laws with respect to them.With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the Court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has scarcely any application.Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should received their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can bethe words "any other public purpose, in the statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is Primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Unionany event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose. In this view also the requisition in this case must be held to have been validly made. | 1 | 1,451 | 519 | ### 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 was wanted for a public purpose.5. The ultimate source of authority to requisition or acquire property is to be found in Art. 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This Article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I and List II of the Seventh Schedule to the Constitution empowers respectively Parliament and the State Legislatures to enact laws with respect to them.6. The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this. There can be no public purpose, which is not a purpose of the Union or a purpose of the State.There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the state".The provision of accommodation for a member of the foreign consulate staff is a "purpose of the Union" and not a "purpose of the State".7. We are unable to uphold this view as regards both the standpoints. Item 33 in the Union Legislative List (List I) refers to "acquisition or requisitioning of property for the purposes of the union." Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III." Item 42 of the Concurrent Legislative List (List Ill) speaks of "the purpose of the Union or of a State or any other public purpose".Reading the three items together, it is fairly obvious thatthe categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose. Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose.Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not strictly be a State or Union purpose.When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular thing for the benefit of the public or a section of the public.Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at heart, will fall within the third category above mentioned.8. With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the Court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has scarcely any application.Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should received their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied.9. If the words "any other public purpose, in the statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.10. Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.Item II in the Union list specifies " diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, And under Art. 73 of the Constitution, the executive power of the Union shall extend to all such matters.11. It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate. It was conceded by Mr. Rajinder Narain, Counsel for the respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador.12. The trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is Primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.13.In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.14. There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose. In this view also the requisition in this case must be held to have been validly made.15. For the reasons given above,
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4. The validity of the Act is not questioned as unconstitutional or us beyond the scope of the legislative competence of the State. As the premises were required for housing a member of the staff of a Consulate, there can be no doubt that it was wanted for a public purpose.5. The ultimate source of authority to requisition or acquire property is to be found in Art. 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This Article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I and List II of the Seventh Schedule to the Constitution empowers respectively Parliament and the State Legislatures to enact laws with respect to them.With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the Court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has scarcely any application.Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should received their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can bethe words "any other public purpose, in the statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is Primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Unionany event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose. In this view also the requisition in this case must be held to have been validly made.
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STEEL AUTHORITY OF INDIA LTD Vs. JAGGU | Rule 29, to comply with certain conditions enumerated under sub-rule (2) of Rule 25 of the Rules 1971 which includes clause (iv) and (v) to be complied with by the contractor and, if at all, there is any breach of the conditions of licence, complaint can be made to the prescribed authority and its consequences are imbedded under the Scheme of the CLRA Act, 1970.40. At the same time, an obligation to provide amenities conferred by the Act to the workers has been referred to under Chapter V of the CLRA Act and the primary responsibility is of a contractor that each worker employed by him as contract labour has to be paid his due wages before the expiry of such period as may be prescribed with an exception provided under Section 21(4) of the Act, in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor under any of the methods prescribed by law.41. In the instant case, after issuance of the prohibition notification dated 17 th March, 1993 under Section 10(1) of the CLRA Act having being published, in our considered view, the provisions of the CLRA Act or CLRA Central Rules, 1971 framed thereunder would not be available to either of the party to strengthen its claim. As stated earlier, minimum wages as prayed for in the application filed by respondents before the prescribed authority under Section 20(1) of the Minimum Wages Act, 1948 could be claimed independently under the Minimum Wages Act, 1948 which indisputedly in the instant case was Rs. 11.65/- per day over the minimum wages to be paid by the appellant to each of the respondent (2040 employees) in terms of the agreement executed between the parties and that was indeed complied with by the appellants in its true spirit.42. The submission made by the learned counsel for the respondents that the respondent workmen were doing the jobs of perennial in nature and the contract labour was banned under agreements entered between SAIL and the workers union from 1970 onwards and their performance of same or similar kind of work as the workmen directly employed by the principal employer make them entitled for wages in terms of NJCS Memorandum of agreement is without substance for the reason that for fixation of Minimum Wages under the Minimum Wages Act, 1948, there are number of considerations which are to be kept in mind by the committees while prescribing the minimum rate of wages payable to the workmen of a different category. Under Section 3 of the Minimum Wages Act, 1948 the appropriate Government may fix minimum wages for time work, minimum rate of wages for piece work, minimum wages in respect of overtime work defined under sub-Section 2 of Section 3 of the Act and the amendment made in Section 3 of the Act also take note of different classes/categories of employees in such employment while the notification under the Minimum Wages Act, 1948 came to be published by the appropriate Government.43. In the given circumstances, a mere assertion of fact that the contract labour which was allowed to continue after the prohibition notification came to be published dated 17 th March, 1993 in the establishment of the appellant SAIL performing same or similar kind of work in the establishment of the principal employer is not sufficient to endorse their entitlement of claiming wages notified by the NJCS memorandum of agreement for direct/regular employees of the establishment applicable universally to all the steel industries. The Judgment relied upon by the learned counsel for the respondents in BHEL Workers Association, Hardwar and Others (supra) may not be of any assistance in the facts of the instant case for the reason that it was a writ petition filed under Article 32 of the Constitution of India by the workers union seeking declaration from this Court for abolition of contract labour and be treated as direct employees of the establishment and entitled to equal pay as workmen of the BHEL but that being a matter of enquiry by the competent authority, their petition came to be dismissed with the direction to the Union of India to examine their grievance in accordance with law.44. In addition to it, in terms of reference made by the appropriate Government dated 27 th January, 2003 read with Corrigendum dated 9 th April, 2003 followed with 22 nd February, 2005, the CGIT framed various issues including issue nos. V & VI and answered it accordingly.Issue nos. V & VI are reproduced as under:-?V. Whether lime stone mines violated the provision of Clause-8 of the memorandum of agreement signed between the SAIL, New Delhi and their Unions and employing workers through contractors on jobs of permanent and perennial nature was justified, legal and fair?VI. Whether the workmen/heirs are entitled to the wages to the post in which they were engaged with parity of wages with that of regular employees of the management with all consequential benefits??It has been answered as under:-?It is evident that it is not established that the alleged contract labours were the employees of the SAIL, as such they were not entitled to any wages as per the agreement. Moreover they were not regular employees of the management and the said agreement appears to be for the regular employees of the management. Thus these issues are also decided against the Union and in favour of the management.?45. The answer thereto has been upheld by us in the independent proceedings.46. In our considered view, the order of the prescribed authority under the Minimum Wages Act, 1948 dated 2 nd December, 2003 and confirmed by the High Court under the impugned judgment dated 11 th December, 2006 are unsustainable and deserves to be set aside. | 1[ds]30. It may be noticed that there are no pleadings on record and primarily the burden was on the respondent applicants to establish that the duties discharged by each of the employee was same or similar to that of a regular/direct employee appointed/employed by the establishment and this can be discerned from the facts pleaded in the application filed by one Jaggu of which a reference has been made. In absence of the initial burden being discharged in the first instance by the respondent employees, the onus could not have been shifted upon the appellant SAIL to counter the nature of work discharged by each of the workmen as to whether it was the same or similar to that of a permanent/regular employee of the establishment and how far the principles of equal pay for equal work claimed as enshrined under Article 14 and 39(d) of the Constitution of India would be attracted in the facts of the case.31. In this backdrop of the matter, it would be apposite to first take note of the scheme of the Minimum Wages Act, 1948. If we look into the objects and reasons of the scheme of the Act, it clearly manifests that the main object of the Act is to provide minimum rates of wages for certain scheduled employment and also provides for fixation and revision of minimum wages of the workers, overtime rates, remuneration for the work done on a day of rest, just to ensure that the employee has enough to provide to his family and to ensure a decent living standard that pertains to a social comfort of the employee and the cost of living index. The procedure for fixing and revising minimum rate of wages, which has to be prescribed, is supported by the recommendation of Advisory Committees/Advisory Board/ Central Advisory Board being constituted under Sections 7 and 8 of the Minimum Wages Act, 1948 and the appropriate Government on its acceptance notified the minimum wages which are payable to the category of employees referred to under Section 2(i) of the Minimum Wages Act, 1948.The scheme of the Act of which reference has been made by this Court clearly manifests that the Act is primarily concerned with fixing rates of minimum wages, overtime rates, rate for payment of work on a day of rest and is not really intended to be an Act for enforcement of payment of wages for which provision has been made in other laws such as the Payment of Wages Act, 1936 and the Industrial Disputes Act, 1947. Section 20 of the Minimum Wages Act, 1948 is primarily enacted to resolve disputes about the rates of wages, rates of payment of work done on days of rest and overtime rates and to ensure that the rates of wages which are notified by the appropriate Government for various categories of employees under the Minimum Wages Act are to be strictly complied with by the employer in making payments and if any payment is made at the rates lower than the minimum rates of wages prescribed by the appropriate Government, the remedy has been provided to the workmen/employee to invoke Section 20(1) of the Act and being a self-contained Code and a beneficial legislation, it is a social protection to ensure and secure adequate living wage in the interest of public and looking to the nature of enquiry postulated under the scheme of Minimum Wages Act, 1948, there appears no scope of enquiry to examine the principles of equal pay for equal work which is a dispute to be determined by a adjudicatory mechanism provided under the law.35. It was not the case of the respondent employees(2040 in number) that the minimum rates of wages which were notified by the appropriate Government from time to time or as agreed between the parties under the Minimum Wages Act, 1948 have not been paid. But their claim in the application under Section 20(1) of the Act, was that, once they have been allowed to work after the prohibition notification dated 17 th March, 1993 has come into force, pursuant to which their status as contract labour in the establishment ceased to operate as a result of contract of principal employer with the contractor in regard to the contract labour having been statutorily extinguished, their relationship stood automatically converted into the employer (i.e., SAIL in the instant case) and the employee (i.e. contract labour) making them entitled for wages which are notified by the NJCS as per the memorandum of agreement which is payable to direct/regular employees of SAIL.The submission, in our view, is misplaced for the reason that the CLRA Act is a complete code in itself and regulate the employment of contract labour in certain establishments and provide for its abolition in certain circumstances and for matters connected therewith. The title of the Act itself indicates that the Act does not provide for total abolition of the contract labour, but only for its abolition in certain circumstances, and to regulate the employment of contract labour in the establishments which are registered under Section 7 and working through the contractors who are holding licence under Section 12 of the Act. Section 8 provides for the revocation of registration in certain cases and Section 9 provides the effect of non-registration. Section 10 is one of the back bone of the Act which provides for prohibition of employment of contract labour in any establishment and we are fortified in our view supported by the Judgment of this Court in Hindustan Steel Works Construction Ltd.(supra).38. In the instant case, the establishment was duly registered under Section 7 of the Act and the contractor through whom the contract labour was engaged was holding its licence under Section 12 of the Act but in the changed circumstances, the appropriate Government took a decision to put a prohibition in making employment of contract labour in scheduled employment for various reasons which is not a subject matter of enquiry in the instant case and in consequence of the prohibition notification dated 17 th March, 1993 published under Section 10(1) of the CLRA Act, the contract labour working in the establishment ceased to function and the contract between the principal employer and contractor stands extinguished.39. To make it further clear, Rule 25 of the Rules, 1971 of which there was an emphasis before the High Court, may not come to the rescue of the respondent employees for the reason that it was an obligation upon the contractor who are holding a licence under Section 12 of the Act and as per the terms and conditions of the licence granted under sub-rule (1) of Rule 25 or renewed under Rule 29, to comply with certain conditions enumerated under sub-rule (2) of Rule 25 of the Rules 1971 which includes clause (iv) and (v) to be complied with by the contractor and, if at all, there is any breach of the conditions of licence, complaint can be made to the prescribed authority and its consequences are imbedded under the Scheme of the CLRA Act, 1970.40. At the same time, an obligation to provide amenities conferred by the Act to the workers has been referred to under Chapter V of the CLRA Act and the primary responsibility is of a contractor that each worker employed by him as contract labour has to be paid his due wages before the expiry of such period as may be prescribed with an exception provided under Section 21(4) of the Act, in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor under any of the methods prescribed by law.41. In the instant case, after issuance of the prohibition notification dated 17 th March, 1993 under Section 10(1) of the CLRA Act having being published, in our considered view, the provisions of the CLRA Act or CLRA Central Rules, 1971 framed thereunder would not be available to either of the party to strengthen its claim. As stated earlier, minimum wages as prayed for in the application filed by respondents before the prescribed authority under Section 20(1) of the Minimum Wages Act, 1948 could be claimed independently under the Minimum Wages Act, 1948 which indisputedly in the instant case was Rs. 11.65/- per day over the minimum wages to be paid by the appellant to each of the respondent (2040 employees) in terms of the agreement executed between the parties and that was indeed complied with by the appellants in its true spirit.42. The submission made by the learned counsel for the respondents that the respondent workmen were doing the jobs of perennial in nature and the contract labour was banned under agreements entered between SAIL and the workers union from 1970 onwards and their performance of same or similar kind of work as the workmen directly employed by the principal employer make them entitled for wages in terms of NJCS Memorandum of agreement is without substance for the reason that for fixation of Minimum Wages under the Minimum Wages Act, 1948, there are number of considerations which are to be kept in mind by the committees while prescribing the minimum rate of wages payable to the workmen of a different category. Under Section 3 of the Minimum Wages Act, 1948 the appropriate Government may fix minimum wages for time work, minimum rate of wages for piece work, minimum wages in respect of overtime work defined under sub-Section 2 of Section 3 of the Act and the amendment made in Section 3 of the Act also take note of different classes/categories of employees in such employment while the notification under the Minimum Wages Act, 1948 came to be published by the appropriate Government.43. In the given circumstances, a mere assertion of fact that the contract labour which was allowed to continue after the prohibition notification came to be published dated 17 th March, 1993 in the establishment of the appellant SAIL performing same or similar kind of work in the establishment of the principal employer is not sufficient to endorse their entitlement of claiming wages notified by the NJCS memorandum of agreement for direct/regular employees of the establishment applicable universally to all the steel industries. The Judgment relied upon by the learned counsel for the respondents in BHEL Workers Association, Hardwar and Others (supra) may not be of any assistance in the facts of the instant case for the reason that it was a writ petition filed under Article 32 of the Constitution of India by the workers union seeking declaration from this Court for abolition of contract labour and be treated as direct employees of the establishment and entitled to equal pay as workmen of the BHEL but that being a matter of enquiry by the competent authority, their petition came to be dismissed with the direction to the Union of India to examine their grievance in accordance with law.The answer thereto has been upheld by us in the independent proceedings.46. In our considered view, the order of the prescribed authority under the Minimum Wages Act, 1948 dated 2 nd December, 2003 and confirmed by the High Court under the impugned judgment dated 11 th December, 2006 are unsustainable and deserves to be set aside. | 1 | 8,934 | 2,056 | ### 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:
Rule 29, to comply with certain conditions enumerated under sub-rule (2) of Rule 25 of the Rules 1971 which includes clause (iv) and (v) to be complied with by the contractor and, if at all, there is any breach of the conditions of licence, complaint can be made to the prescribed authority and its consequences are imbedded under the Scheme of the CLRA Act, 1970.40. At the same time, an obligation to provide amenities conferred by the Act to the workers has been referred to under Chapter V of the CLRA Act and the primary responsibility is of a contractor that each worker employed by him as contract labour has to be paid his due wages before the expiry of such period as may be prescribed with an exception provided under Section 21(4) of the Act, in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor under any of the methods prescribed by law.41. In the instant case, after issuance of the prohibition notification dated 17 th March, 1993 under Section 10(1) of the CLRA Act having being published, in our considered view, the provisions of the CLRA Act or CLRA Central Rules, 1971 framed thereunder would not be available to either of the party to strengthen its claim. As stated earlier, minimum wages as prayed for in the application filed by respondents before the prescribed authority under Section 20(1) of the Minimum Wages Act, 1948 could be claimed independently under the Minimum Wages Act, 1948 which indisputedly in the instant case was Rs. 11.65/- per day over the minimum wages to be paid by the appellant to each of the respondent (2040 employees) in terms of the agreement executed between the parties and that was indeed complied with by the appellants in its true spirit.42. The submission made by the learned counsel for the respondents that the respondent workmen were doing the jobs of perennial in nature and the contract labour was banned under agreements entered between SAIL and the workers union from 1970 onwards and their performance of same or similar kind of work as the workmen directly employed by the principal employer make them entitled for wages in terms of NJCS Memorandum of agreement is without substance for the reason that for fixation of Minimum Wages under the Minimum Wages Act, 1948, there are number of considerations which are to be kept in mind by the committees while prescribing the minimum rate of wages payable to the workmen of a different category. Under Section 3 of the Minimum Wages Act, 1948 the appropriate Government may fix minimum wages for time work, minimum rate of wages for piece work, minimum wages in respect of overtime work defined under sub-Section 2 of Section 3 of the Act and the amendment made in Section 3 of the Act also take note of different classes/categories of employees in such employment while the notification under the Minimum Wages Act, 1948 came to be published by the appropriate Government.43. In the given circumstances, a mere assertion of fact that the contract labour which was allowed to continue after the prohibition notification came to be published dated 17 th March, 1993 in the establishment of the appellant SAIL performing same or similar kind of work in the establishment of the principal employer is not sufficient to endorse their entitlement of claiming wages notified by the NJCS memorandum of agreement for direct/regular employees of the establishment applicable universally to all the steel industries. The Judgment relied upon by the learned counsel for the respondents in BHEL Workers Association, Hardwar and Others (supra) may not be of any assistance in the facts of the instant case for the reason that it was a writ petition filed under Article 32 of the Constitution of India by the workers union seeking declaration from this Court for abolition of contract labour and be treated as direct employees of the establishment and entitled to equal pay as workmen of the BHEL but that being a matter of enquiry by the competent authority, their petition came to be dismissed with the direction to the Union of India to examine their grievance in accordance with law.44. In addition to it, in terms of reference made by the appropriate Government dated 27 th January, 2003 read with Corrigendum dated 9 th April, 2003 followed with 22 nd February, 2005, the CGIT framed various issues including issue nos. V & VI and answered it accordingly.Issue nos. V & VI are reproduced as under:-?V. Whether lime stone mines violated the provision of Clause-8 of the memorandum of agreement signed between the SAIL, New Delhi and their Unions and employing workers through contractors on jobs of permanent and perennial nature was justified, legal and fair?VI. Whether the workmen/heirs are entitled to the wages to the post in which they were engaged with parity of wages with that of regular employees of the management with all consequential benefits??It has been answered as under:-?It is evident that it is not established that the alleged contract labours were the employees of the SAIL, as such they were not entitled to any wages as per the agreement. Moreover they were not regular employees of the management and the said agreement appears to be for the regular employees of the management. Thus these issues are also decided against the Union and in favour of the management.?45. The answer thereto has been upheld by us in the independent proceedings.46. In our considered view, the order of the prescribed authority under the Minimum Wages Act, 1948 dated 2 nd December, 2003 and confirmed by the High Court under the impugned judgment dated 11 th December, 2006 are unsustainable and deserves to be set aside.
### Response:
1
### Explanation:
view supported by the Judgment of this Court in Hindustan Steel Works Construction Ltd.(supra).38. In the instant case, the establishment was duly registered under Section 7 of the Act and the contractor through whom the contract labour was engaged was holding its licence under Section 12 of the Act but in the changed circumstances, the appropriate Government took a decision to put a prohibition in making employment of contract labour in scheduled employment for various reasons which is not a subject matter of enquiry in the instant case and in consequence of the prohibition notification dated 17 th March, 1993 published under Section 10(1) of the CLRA Act, the contract labour working in the establishment ceased to function and the contract between the principal employer and contractor stands extinguished.39. To make it further clear, Rule 25 of the Rules, 1971 of which there was an emphasis before the High Court, may not come to the rescue of the respondent employees for the reason that it was an obligation upon the contractor who are holding a licence under Section 12 of the Act and as per the terms and conditions of the licence granted under sub-rule (1) of Rule 25 or renewed under Rule 29, to comply with certain conditions enumerated under sub-rule (2) of Rule 25 of the Rules 1971 which includes clause (iv) and (v) to be complied with by the contractor and, if at all, there is any breach of the conditions of licence, complaint can be made to the prescribed authority and its consequences are imbedded under the Scheme of the CLRA Act, 1970.40. At the same time, an obligation to provide amenities conferred by the Act to the workers has been referred to under Chapter V of the CLRA Act and the primary responsibility is of a contractor that each worker employed by him as contract labour has to be paid his due wages before the expiry of such period as may be prescribed with an exception provided under Section 21(4) of the Act, in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor under any of the methods prescribed by law.41. In the instant case, after issuance of the prohibition notification dated 17 th March, 1993 under Section 10(1) of the CLRA Act having being published, in our considered view, the provisions of the CLRA Act or CLRA Central Rules, 1971 framed thereunder would not be available to either of the party to strengthen its claim. As stated earlier, minimum wages as prayed for in the application filed by respondents before the prescribed authority under Section 20(1) of the Minimum Wages Act, 1948 could be claimed independently under the Minimum Wages Act, 1948 which indisputedly in the instant case was Rs. 11.65/- per day over the minimum wages to be paid by the appellant to each of the respondent (2040 employees) in terms of the agreement executed between the parties and that was indeed complied with by the appellants in its true spirit.42. The submission made by the learned counsel for the respondents that the respondent workmen were doing the jobs of perennial in nature and the contract labour was banned under agreements entered between SAIL and the workers union from 1970 onwards and their performance of same or similar kind of work as the workmen directly employed by the principal employer make them entitled for wages in terms of NJCS Memorandum of agreement is without substance for the reason that for fixation of Minimum Wages under the Minimum Wages Act, 1948, there are number of considerations which are to be kept in mind by the committees while prescribing the minimum rate of wages payable to the workmen of a different category. Under Section 3 of the Minimum Wages Act, 1948 the appropriate Government may fix minimum wages for time work, minimum rate of wages for piece work, minimum wages in respect of overtime work defined under sub-Section 2 of Section 3 of the Act and the amendment made in Section 3 of the Act also take note of different classes/categories of employees in such employment while the notification under the Minimum Wages Act, 1948 came to be published by the appropriate Government.43. In the given circumstances, a mere assertion of fact that the contract labour which was allowed to continue after the prohibition notification came to be published dated 17 th March, 1993 in the establishment of the appellant SAIL performing same or similar kind of work in the establishment of the principal employer is not sufficient to endorse their entitlement of claiming wages notified by the NJCS memorandum of agreement for direct/regular employees of the establishment applicable universally to all the steel industries. The Judgment relied upon by the learned counsel for the respondents in BHEL Workers Association, Hardwar and Others (supra) may not be of any assistance in the facts of the instant case for the reason that it was a writ petition filed under Article 32 of the Constitution of India by the workers union seeking declaration from this Court for abolition of contract labour and be treated as direct employees of the establishment and entitled to equal pay as workmen of the BHEL but that being a matter of enquiry by the competent authority, their petition came to be dismissed with the direction to the Union of India to examine their grievance in accordance with law.The answer thereto has been upheld by us in the independent proceedings.46. In our considered view, the order of the prescribed authority under the Minimum Wages Act, 1948 dated 2 nd December, 2003 and confirmed by the High Court under the impugned judgment dated 11 th December, 2006 are unsustainable and deserves to be set aside.
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U.P. HOUSING AND DEVELOPMENT BOARD Vs. RAMESH CHANDRA AGARWAL | to place on record relevant documents including the Registration Booklet, the office order dated 1 November 2002 and the Rules of 1979. The appellant also sought to produce copies of the advertisements which were published from time to time.10. On 26 July 2018 the NCDRC directed the appellant to explore whether any plots/flats were available in any scheme of the appellant and to place relevant data including the particulars for allotment on affidavit.11. In pursuance of the above direction, the appellant filed anf affidavit on 8 August 2018 indicating the following position.“That … the flats which are available today are subject to auction wherein the rates are fixed according to the size of the flat, the location of the flat i.e. Ground floor, first floor, second floor and third floor. A perusal of the auction booklet of the answering respondent with regard to the aforesaid scheme of the Parishad would show the price at which the left over flats under different schemes are provided to general public. The allotment is done by way of auction and a perusal of the auction rates for Mandola Vihar Yojna, Ghaziabad residential flats is Rs.12.61 lakhs for ground floor; Rs.11.37 lakhs for first floor; Rs.11.23 lakhs for second floor and Rs.11.09 lakhs for third floor.”12. The NCDRC decided the revision by its order dated 11 December, 2018 which is impugned in the present appeal. A direction has been issued to the appellant to allot a flat on the ground floor in the Mandola Vihar Yojana, Ghaziabad to the respondent subject to his paying a sum of Rs 2,50,000 towards consideration for the flat within a period of six weeks from the date of the passing of the order.13. Assailing the judgment of the NCDRC, it has been urged by Mr Vishwajit Singh, learned counsel for the appellant that in the present case the respondent merely got himself registered for allotment. There was no allotment to the respondent. Moreover, it was submitted that the Rules for allotment which have been adverted to earlier, more specifically Rules 15 & 30, indicate that mere registration does not confer an entitlement to the allotment of a flat and every registered applicant is required to furnish written consent for participating in the draw of lots. In the present case, it was submitted that the appellant did nothing of the kind and eventually filed a consumer complaint only after eleven years after the date of registration. Learned counsel submitted that even before the SCDRC, the respondent consistently remained absent. Before the NCDRC, the appellant filed a statement indicating the current prices for the allotment of residential flats in the Mandola Vihar Yojana. It has been urged that the NCDRC by compelling the appellant to allot a flat to the respondent for a sum of Rs 2,50,000 has acted in a manner contrary to law. There was no contract between the appellant and the respondent.14. On the other hand, the respondent, who appeared in person, has submitted before the Court that after he registered himself with the appellant in 1982, he had from time to time made queries with the appellant in regard to the likelihood of his being allotted a flat in any of the schemes of the U.P. Awas Evam Vikas Parishad. The respondent submitted that he was never informed of any scheme or of any allotment in his favour. The respondent urged that the order which has been passed by the NCDRC is just and equitable. Having waited since 1982 for an allotment, he cannot be now compelled to get an allotment at the current market value.15. The appellant is governed by the terms and conditions advertised in its Registration Booklet and by the Rules of 1979. Clause 5 of the Registration Booklet indicates that mere registration does not confer a right for allotment. Rule 15 makes a provision to the effect that the Board is not bound to allot a house or plot to every registered holder. Rule 30 indicates that after the Board advertises the availability of a scheme in the newspaper, every registered applicant is at liberty to submit a consent letter for participation in the draw of lots. Mere registration does not oblige the authority to include every registered applicant in the draw of lots. The applicant must show readiness and willingness to participate in a draw of lots in respect of a specified scheme. This is evident from Rule 30(2 ). A set of priorities is provided in Rule 30 (5). In view of the clear position in the brochure and the Rules of 1979, the respondent had no vested right to seek an allotment. As a registered applicant, the respondent was at liberty to seek to participate in the draw of lots by indicating his consent to the appellant. After paying an initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondent did not pursue any remedies until 1993 when he moved the District Forum. The order of the District Forum gave liberty to the respondent to seek allotment at the current market value under any of the schemes of the appellant. The NCDRC was manifestly in error in issuing a direction to the appellant to make an allotment to the respondent for a total sum of Rs 2,50,000 in any of the flats available in the Mandola Vihar Yojna, Ghaziabad. There is no rationale basis or justification for the amount of Rs 2,50,000 which has been fixed by the NCDRC. This direction proceeds purely on the basis of the Ipse dixit of the forum. The appellant, as a public authority, could not have been compelled to enter into a contract with the respondent. There was no contractual entitlement of the respondent to the allotment of a flat much less for an allotment at a specified price. In its effort to render justice, the NCDRC has adopted a view which is contrary to the basic principles of contract governing the law on the subject. | 1[ds]15. The appellant is governed by the terms and conditions advertised in its Registration Booklet and by the Rules of 1979. Clause 5 of the Registration Booklet indicates that mere registration does not confer a right for allotment. Rule 15 makes a provision to the effect that the Board is not bound to allot a house or plot to every registered holder. Rule 30 indicates that after the Board advertises the availability of a scheme in the newspaper, every registered applicant is at liberty to submit a consent letter for participation in the draw of lots. Mere registration does not oblige the authority to include every registered applicant in the draw of lots. The applicant must show readiness and willingness to participate in a draw of lots in respect of a specified scheme. This is evident from Rule 30(2 ). A set of priorities is provided in Rule 30 (5). In view of the clear position in the brochure and the Rules of 1979, the respondent had no vested right to seek an allotment. As a registered applicant, the respondent was at liberty to seek to participate in the draw of lots by indicating his consent to the appellant. After paying an initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondent did not pursue any remedies until 1993 when he moved the District Forum. The order of the District Forum gave liberty to the respondent to seek allotment at the current market value under any of the schemes of the appellant. The NCDRC was manifestly in error in issuing a direction to the appellant to make an allotment to the respondent for a total sum of Rs 2,50,000 in any of the flats available in the Mandola Vihar Yojna, Ghaziabad. There is no rationale basis or justification for the amount of Rs 2,50,000 which has been fixed by the NCDRC. This direction proceeds purely on the basis of the Ipse dixit of the forum. The appellant, as a public authority, could not have been compelled to enter into a contract with the respondent. There was no contractual entitlement of the respondent to the allotment of a flat much less for an allotment at a specified price. In its effort to render justice, the NCDRC has adopted a view which is contrary to the basic principles of contract governing the law on the subject. | 1 | 2,087 | 437 | ### Instruction:
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to place on record relevant documents including the Registration Booklet, the office order dated 1 November 2002 and the Rules of 1979. The appellant also sought to produce copies of the advertisements which were published from time to time.10. On 26 July 2018 the NCDRC directed the appellant to explore whether any plots/flats were available in any scheme of the appellant and to place relevant data including the particulars for allotment on affidavit.11. In pursuance of the above direction, the appellant filed anf affidavit on 8 August 2018 indicating the following position.“That … the flats which are available today are subject to auction wherein the rates are fixed according to the size of the flat, the location of the flat i.e. Ground floor, first floor, second floor and third floor. A perusal of the auction booklet of the answering respondent with regard to the aforesaid scheme of the Parishad would show the price at which the left over flats under different schemes are provided to general public. The allotment is done by way of auction and a perusal of the auction rates for Mandola Vihar Yojna, Ghaziabad residential flats is Rs.12.61 lakhs for ground floor; Rs.11.37 lakhs for first floor; Rs.11.23 lakhs for second floor and Rs.11.09 lakhs for third floor.”12. The NCDRC decided the revision by its order dated 11 December, 2018 which is impugned in the present appeal. A direction has been issued to the appellant to allot a flat on the ground floor in the Mandola Vihar Yojana, Ghaziabad to the respondent subject to his paying a sum of Rs 2,50,000 towards consideration for the flat within a period of six weeks from the date of the passing of the order.13. Assailing the judgment of the NCDRC, it has been urged by Mr Vishwajit Singh, learned counsel for the appellant that in the present case the respondent merely got himself registered for allotment. There was no allotment to the respondent. Moreover, it was submitted that the Rules for allotment which have been adverted to earlier, more specifically Rules 15 & 30, indicate that mere registration does not confer an entitlement to the allotment of a flat and every registered applicant is required to furnish written consent for participating in the draw of lots. In the present case, it was submitted that the appellant did nothing of the kind and eventually filed a consumer complaint only after eleven years after the date of registration. Learned counsel submitted that even before the SCDRC, the respondent consistently remained absent. Before the NCDRC, the appellant filed a statement indicating the current prices for the allotment of residential flats in the Mandola Vihar Yojana. It has been urged that the NCDRC by compelling the appellant to allot a flat to the respondent for a sum of Rs 2,50,000 has acted in a manner contrary to law. There was no contract between the appellant and the respondent.14. On the other hand, the respondent, who appeared in person, has submitted before the Court that after he registered himself with the appellant in 1982, he had from time to time made queries with the appellant in regard to the likelihood of his being allotted a flat in any of the schemes of the U.P. Awas Evam Vikas Parishad. The respondent submitted that he was never informed of any scheme or of any allotment in his favour. The respondent urged that the order which has been passed by the NCDRC is just and equitable. Having waited since 1982 for an allotment, he cannot be now compelled to get an allotment at the current market value.15. The appellant is governed by the terms and conditions advertised in its Registration Booklet and by the Rules of 1979. Clause 5 of the Registration Booklet indicates that mere registration does not confer a right for allotment. Rule 15 makes a provision to the effect that the Board is not bound to allot a house or plot to every registered holder. Rule 30 indicates that after the Board advertises the availability of a scheme in the newspaper, every registered applicant is at liberty to submit a consent letter for participation in the draw of lots. Mere registration does not oblige the authority to include every registered applicant in the draw of lots. The applicant must show readiness and willingness to participate in a draw of lots in respect of a specified scheme. This is evident from Rule 30(2 ). A set of priorities is provided in Rule 30 (5). In view of the clear position in the brochure and the Rules of 1979, the respondent had no vested right to seek an allotment. As a registered applicant, the respondent was at liberty to seek to participate in the draw of lots by indicating his consent to the appellant. After paying an initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondent did not pursue any remedies until 1993 when he moved the District Forum. The order of the District Forum gave liberty to the respondent to seek allotment at the current market value under any of the schemes of the appellant. The NCDRC was manifestly in error in issuing a direction to the appellant to make an allotment to the respondent for a total sum of Rs 2,50,000 in any of the flats available in the Mandola Vihar Yojna, Ghaziabad. There is no rationale basis or justification for the amount of Rs 2,50,000 which has been fixed by the NCDRC. This direction proceeds purely on the basis of the Ipse dixit of the forum. The appellant, as a public authority, could not have been compelled to enter into a contract with the respondent. There was no contractual entitlement of the respondent to the allotment of a flat much less for an allotment at a specified price. In its effort to render justice, the NCDRC has adopted a view which is contrary to the basic principles of contract governing the law on the subject.
### Response:
1
### Explanation:
15. The appellant is governed by the terms and conditions advertised in its Registration Booklet and by the Rules of 1979. Clause 5 of the Registration Booklet indicates that mere registration does not confer a right for allotment. Rule 15 makes a provision to the effect that the Board is not bound to allot a house or plot to every registered holder. Rule 30 indicates that after the Board advertises the availability of a scheme in the newspaper, every registered applicant is at liberty to submit a consent letter for participation in the draw of lots. Mere registration does not oblige the authority to include every registered applicant in the draw of lots. The applicant must show readiness and willingness to participate in a draw of lots in respect of a specified scheme. This is evident from Rule 30(2 ). A set of priorities is provided in Rule 30 (5). In view of the clear position in the brochure and the Rules of 1979, the respondent had no vested right to seek an allotment. As a registered applicant, the respondent was at liberty to seek to participate in the draw of lots by indicating his consent to the appellant. After paying an initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondent did not pursue any remedies until 1993 when he moved the District Forum. The order of the District Forum gave liberty to the respondent to seek allotment at the current market value under any of the schemes of the appellant. The NCDRC was manifestly in error in issuing a direction to the appellant to make an allotment to the respondent for a total sum of Rs 2,50,000 in any of the flats available in the Mandola Vihar Yojna, Ghaziabad. There is no rationale basis or justification for the amount of Rs 2,50,000 which has been fixed by the NCDRC. This direction proceeds purely on the basis of the Ipse dixit of the forum. The appellant, as a public authority, could not have been compelled to enter into a contract with the respondent. There was no contractual entitlement of the respondent to the allotment of a flat much less for an allotment at a specified price. In its effort to render justice, the NCDRC has adopted a view which is contrary to the basic principles of contract governing the law on the subject.
|
UNION OF INDIA Vs. COASTAL CONTAINER TRANSPORTERS ASSOCIATION | companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra). 18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. There cannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmental authorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support. 19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage. | 1[ds]17. It is the case of the appellants that if service as a whole, is taken into consideration, it falls within the classifiable category of cargo handling service but not goods transport agency. On the other hand, it is the case of the respondents that they only undertake road transportation, and so far as cargo handled by shipping agencies is concerned, they prepare bills in the name of the respondent companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra)18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. Therecannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmentalauthorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained atthe show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case ofMalladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage. | 1 | 4,412 | 1,167 | ### Instruction:
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companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra). 18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. There cannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmental authorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support. 19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage.
### Response:
1
### Explanation:
in the name of the respondent companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra)18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. Therecannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmentalauthorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained atthe show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case ofMalladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage.
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Annamreddi Bodayya and Another Vs. Lokanarapu Ramaswamy (Dead) By Lrs | ryot in respect of the holding because jurisdiction to decide this dispute is conferred on the Settlement Officer and sub-section (2) of the Section 56 provides that the decision of the Settlement Officer on the questions set out in sub-section (1) of Section 56 shall be final and not liable to be questioned at any rate in any court of law, which would imply that the jurisdiction of the civil court to decide these questions is ousted. 5. The trial court decreed the suits in favour of plaintiff respondents. 6. It may at once be mentioned that the contention as to want of jurisdiction was not raised in the written statement filed in the trial court. In the first appeals A.S. Nos. 96, 97 and 98 of 1957 preferred by the present appellant an application for amendment of the written statements was moved seeking to raise a contention that the civil court had no jurisdiction to entertain the suits for the reasons hereinabove mentioned. Applications for amendment were granted. The contention as to want of jurisdiction found favour with the Appellate Court. The Appellate Court held that as the estate has vested in the State a question arose under the 1948 Act as to who is the lawful ryot in respect of the holding and the civil court had no jurisdiction to decide the contention. Accordingly appeals preferred by the appellants were allowed and the plaints in the suits filed by the respondents were ordered to be returned for presentation to the proper court. The respondents preferred appeals to the High Court of Andhra Pradesh. The view of the Andhra Pradesh High Court at that time was that the civil court had jurisdiction to entertain the suits more particularly where the prayers it the suits were for a decree for possession and mesne profits and accordingly the appeals were allowed and the judgment of the First Appellate Court was set aside and the matter was remitted to the First Appellate Court for disposal of appeals on merits. On remand the appeals of the appellants were dismissed and after unsuccessful appeals in the High Court they approached this Court under Article 136 of the Constitution. Hence these appeals by special leave. 7. The only contention Mr Vepa P. Sarathi, learned counsel for the appellants canvassed our consideration is that in view of the provision contained in Section 56 of 1948 Act the civil court had no jurisdiction to entertain the suits in which one of the questions required to be examined was as to who was the lawful ryot in respect of the holding because jurisdiction to decide that issue was conferred on the Settlement Officer and his decision so far as the court was concerned was to be final. We are spared a detailed enquiry into the merits of this contention in view of the decision of this Court in Muddada Chayana v. Karnam Narayana ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) in which this Court after taking note of the two larger bench later decisions of the Andhra Pradesh High Court categorically held that the civil court had no jurisdiction to entertain a suit in which on the advent of the 1948 Act and vesting of estate in the State one of the questions to be considered is as to who is the lawful ryot in respect of the holding. A full bench of three Judges of the High Court took the view that civil court had jurisdiction to decide that issue but a later five Judges bench overruled the same and took a contrary view. In T. Munuswami Naidu v. R. Venkata Reddi (AIR 1978 AP 200 ) a larger bench taking a contrary view reversed the earlier decision of the full bench in Cherukuru Muthayya v. Gadde Gopalakrishnayya (AIR 1974 AP 85 : (1973) 2 APLJ 209 : ILR 1973 AP 1204). This Court affirmed and approved the view taken in Munuswami Naidu (AIR 1978 AP 200 ) which in terms lays down that the civil court had no jurisdiction to decide the question as to who is the lawful ryot in respect of the holding. Such a contention goes to the root of the matter and its decision one way or other decides the availability of protection in matter of grant of patta. This very contention was directly and substantially raised in the suit that civil court had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with the same. Naturally, the suits filed by the respondents in civil court were bound to fail for want of jurisdiction according to the view taken by this Court in Muddada Chayana case ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) which was reaffirmed in the later decision in Oduru Chenchulakshmamma v. Duvvuru Subrahmanya Reddy ((1980) 1 SCR 1006 : (1980) 3 SCC 130 : AIR 1980 SC 133 ).8. Both the decisions of this Court were read over to us. They lay down the correct law. Language of Section 56 of 1948 Act more especially the provision in sub-section (1) which makes the order of Settlement Officer final and which cannot be questioned in any court leaves no room for doubt that the issues set out in sub-section (1) of Section 56 could be decided by Settlement Officer only and in respect of them the jurisdiction of the civil is ousted. The High Court was in error in holding that the civil court had jurisdiction to entertain the suits. It may be noted that the law in this behalf has been set right apart from the decisions of this Court by the decision of the larger bench of the same High Court. If the trial court had no jurisdiction to entertain the suits the first appellate court was right in directing that the plaints be returned for presentation to the proper court. | 1[ds]8. Both the decisions of this Court were read over to us. They lay down the correct law. Language of Section 56 of 1948 Act more especially the provision inn (1) which makes the order of Settlement Officer final and which cannot be questioned in any court leaves no room for doubt that the issues set out inn (1) of Section 56 could be decided by Settlement Officer only and in respect of them the jurisdiction of the civil is ousted. The High Court was in error in holding that the civil court had jurisdiction to entertain the suits. It may be noted that the law in this behalf has been set right apart from the decisions of this Court by the decision of the larger bench of the same High Court. If the trial court had no jurisdiction to entertain the suits the first appellate court was right in directing that the plaints be returned for presentation to the proper courtWe are spared a detailed enquiry into the merits of this contention in view of the decision of this Court in Muddada Chayana v. Karnam Narayana ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) in which this Court after taking note of the two larger bench later decisions of the Andhra Pradesh High Court categorically held that the civil court had no jurisdiction to entertain a suit in which on the advent of the 1948 Act and vesting of estate in the State one of the questions to be considered is as to who is the lawful ryot in respect of the holding. A full bench of three Judges of the High Court took the view that civil court had jurisdiction to decide that issue but a later five Judges bench overruled the same and took a contrary view. In T. Munuswami Naidu v. R. Venkata Reddi (AIR 1978 AP 200 ) a larger bench taking a contrary view reversed the earlier decision of the full bench in Cherukuru Muthayya v. Gadde Gopalakrishnayya (AIR 1974 AP 85 : (1973) 2 APLJ 209 : ILR 1973 AP 1204). This Court affirmed and approved the view taken in Munuswami Naidu (AIR 1978 AP 200 ) which in terms lays down that the civil court had no jurisdiction to decide the question as to who is the lawful ryot in respect of the holding. Such a contention goes to the root of the matter and its decision one way or other decides the availability of protection in matter of grant of patta. This very contention was directly and substantially raised in the suit that civil court had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with the same. Naturally, the suits filed by the respondents in civil court were bound to fail for want of jurisdiction according to the view taken by this Court in Muddada Chayana case ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) which was reaffirmed in the later decision in Oduru Chenchulakshmamma v. Duvvuru Subrahmanya Reddy ((1980) 1 SCR 1006 : (1980) 3 SCC 130 : AIR 1980 SC 133 ). | 1 | 1,507 | 583 | ### 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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ryot in respect of the holding because jurisdiction to decide this dispute is conferred on the Settlement Officer and sub-section (2) of the Section 56 provides that the decision of the Settlement Officer on the questions set out in sub-section (1) of Section 56 shall be final and not liable to be questioned at any rate in any court of law, which would imply that the jurisdiction of the civil court to decide these questions is ousted. 5. The trial court decreed the suits in favour of plaintiff respondents. 6. It may at once be mentioned that the contention as to want of jurisdiction was not raised in the written statement filed in the trial court. In the first appeals A.S. Nos. 96, 97 and 98 of 1957 preferred by the present appellant an application for amendment of the written statements was moved seeking to raise a contention that the civil court had no jurisdiction to entertain the suits for the reasons hereinabove mentioned. Applications for amendment were granted. The contention as to want of jurisdiction found favour with the Appellate Court. The Appellate Court held that as the estate has vested in the State a question arose under the 1948 Act as to who is the lawful ryot in respect of the holding and the civil court had no jurisdiction to decide the contention. Accordingly appeals preferred by the appellants were allowed and the plaints in the suits filed by the respondents were ordered to be returned for presentation to the proper court. The respondents preferred appeals to the High Court of Andhra Pradesh. The view of the Andhra Pradesh High Court at that time was that the civil court had jurisdiction to entertain the suits more particularly where the prayers it the suits were for a decree for possession and mesne profits and accordingly the appeals were allowed and the judgment of the First Appellate Court was set aside and the matter was remitted to the First Appellate Court for disposal of appeals on merits. On remand the appeals of the appellants were dismissed and after unsuccessful appeals in the High Court they approached this Court under Article 136 of the Constitution. Hence these appeals by special leave. 7. The only contention Mr Vepa P. Sarathi, learned counsel for the appellants canvassed our consideration is that in view of the provision contained in Section 56 of 1948 Act the civil court had no jurisdiction to entertain the suits in which one of the questions required to be examined was as to who was the lawful ryot in respect of the holding because jurisdiction to decide that issue was conferred on the Settlement Officer and his decision so far as the court was concerned was to be final. We are spared a detailed enquiry into the merits of this contention in view of the decision of this Court in Muddada Chayana v. Karnam Narayana ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) in which this Court after taking note of the two larger bench later decisions of the Andhra Pradesh High Court categorically held that the civil court had no jurisdiction to entertain a suit in which on the advent of the 1948 Act and vesting of estate in the State one of the questions to be considered is as to who is the lawful ryot in respect of the holding. A full bench of three Judges of the High Court took the view that civil court had jurisdiction to decide that issue but a later five Judges bench overruled the same and took a contrary view. In T. Munuswami Naidu v. R. Venkata Reddi (AIR 1978 AP 200 ) a larger bench taking a contrary view reversed the earlier decision of the full bench in Cherukuru Muthayya v. Gadde Gopalakrishnayya (AIR 1974 AP 85 : (1973) 2 APLJ 209 : ILR 1973 AP 1204). This Court affirmed and approved the view taken in Munuswami Naidu (AIR 1978 AP 200 ) which in terms lays down that the civil court had no jurisdiction to decide the question as to who is the lawful ryot in respect of the holding. Such a contention goes to the root of the matter and its decision one way or other decides the availability of protection in matter of grant of patta. This very contention was directly and substantially raised in the suit that civil court had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with the same. Naturally, the suits filed by the respondents in civil court were bound to fail for want of jurisdiction according to the view taken by this Court in Muddada Chayana case ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) which was reaffirmed in the later decision in Oduru Chenchulakshmamma v. Duvvuru Subrahmanya Reddy ((1980) 1 SCR 1006 : (1980) 3 SCC 130 : AIR 1980 SC 133 ).8. Both the decisions of this Court were read over to us. They lay down the correct law. Language of Section 56 of 1948 Act more especially the provision in sub-section (1) which makes the order of Settlement Officer final and which cannot be questioned in any court leaves no room for doubt that the issues set out in sub-section (1) of Section 56 could be decided by Settlement Officer only and in respect of them the jurisdiction of the civil is ousted. The High Court was in error in holding that the civil court had jurisdiction to entertain the suits. It may be noted that the law in this behalf has been set right apart from the decisions of this Court by the decision of the larger bench of the same High Court. If the trial court had no jurisdiction to entertain the suits the first appellate court was right in directing that the plaints be returned for presentation to the proper court.
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8. Both the decisions of this Court were read over to us. They lay down the correct law. Language of Section 56 of 1948 Act more especially the provision inn (1) which makes the order of Settlement Officer final and which cannot be questioned in any court leaves no room for doubt that the issues set out inn (1) of Section 56 could be decided by Settlement Officer only and in respect of them the jurisdiction of the civil is ousted. The High Court was in error in holding that the civil court had jurisdiction to entertain the suits. It may be noted that the law in this behalf has been set right apart from the decisions of this Court by the decision of the larger bench of the same High Court. If the trial court had no jurisdiction to entertain the suits the first appellate court was right in directing that the plaints be returned for presentation to the proper courtWe are spared a detailed enquiry into the merits of this contention in view of the decision of this Court in Muddada Chayana v. Karnam Narayana ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) in which this Court after taking note of the two larger bench later decisions of the Andhra Pradesh High Court categorically held that the civil court had no jurisdiction to entertain a suit in which on the advent of the 1948 Act and vesting of estate in the State one of the questions to be considered is as to who is the lawful ryot in respect of the holding. A full bench of three Judges of the High Court took the view that civil court had jurisdiction to decide that issue but a later five Judges bench overruled the same and took a contrary view. In T. Munuswami Naidu v. R. Venkata Reddi (AIR 1978 AP 200 ) a larger bench taking a contrary view reversed the earlier decision of the full bench in Cherukuru Muthayya v. Gadde Gopalakrishnayya (AIR 1974 AP 85 : (1973) 2 APLJ 209 : ILR 1973 AP 1204). This Court affirmed and approved the view taken in Munuswami Naidu (AIR 1978 AP 200 ) which in terms lays down that the civil court had no jurisdiction to decide the question as to who is the lawful ryot in respect of the holding. Such a contention goes to the root of the matter and its decision one way or other decides the availability of protection in matter of grant of patta. This very contention was directly and substantially raised in the suit that civil court had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with the same. Naturally, the suits filed by the respondents in civil court were bound to fail for want of jurisdiction according to the view taken by this Court in Muddada Chayana case ((1979) 3 SCR 201 : (1979) 3 SCC 42 : AIR 1979 SC 1320 ) which was reaffirmed in the later decision in Oduru Chenchulakshmamma v. Duvvuru Subrahmanya Reddy ((1980) 1 SCR 1006 : (1980) 3 SCC 130 : AIR 1980 SC 133 ).
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Commissioner of Income Tax, West Bengal II Vs. Rajasthan Mines Limited, Calcutta | Co. Ltd. and three other parties for a total sum of Rupees 7,50,000/-. The Income-tax Officer treated the entire arrears of rent and royalty amounting to Rs. 3,00,332/- as revenue receipts of the assessee taxable during the assessment year 1950-51. He also treated the sale of the lands by the assessee as a business transaction and taxed a sum of Rupees 2,20,000/- as the net profit of the assessee arising from the sale, which profit was recomputed by the Appellate Assistant Commissioner at Rupees 2,80,000/-. The Income-tax Appellate Tribunal agreed with those conclusions. 5. The High Court of Calcutta differing from the conclusions reached by the Income-tax Officer, Appellate Assistant Commissioner and the Tribunal came to the conclusion that the sums of Rs. 2,55,733/- and Rs. 3,00,332/- receivable by the assessee as arrears of royalty and rent were not assessable as the profits of the assessee for the assessment years 1948-49 and 1950-51 respectively. It also disagreed with the conclusions reached by the Income-tax Officer. Appellate Assistant Commissioner and the Tribunal that profit made by the assessee by the sale of the properties purchased from Raja of Ramgarh was assessable as the income of the assessee for the assessment year 1950-51. Aggrieved by that order, the Commissioner of Income-tax, West Bengal has come up in appeal to this Court. 6. We are in agreement with the High Court that the purchase of the right to collect arrears of rent and royalty cannot be considered as an income. It is true that the assessee purchased the lessors right from the Raja of Ramgarh in pursuance of the agreements entered into by the Raja of Ramgarh with third parties whose rights had been acquired by the assessee. The assessee company had been incorporated, as seen earlier, on January 23, 1947. Therefore it could not have got any right in the property prior to the conveyance in its favour on December 22, 1947. As per the terms of the said conveyance, the assessee became entitled to the arrears of rent and royalty as a purchaser of those rights. It had no right to collect those arrears of rent and royalty as the owner of the property. It may be that in determining the price payable under the conveyance, the arrears of rent and royalty were not taken into consideration. But that does not change the nature of the right acquired by the assessee. Hence we agree with the High Court that the first question referred of earlier must be answered in favour of the assessee. 7. Now coming to the second question, according to the assessee, it purchased the tracts of land in question with a view to win mines but for want of finance, it was compelled to sell the same. The primary facts found by the tribunal are: (1) the assessee was heavily indebted to Raja of Ramgarh but there was no evidence to show that the Raja was pressing for the payment of the amount due to him; (2) the memorandum of association of the assessee gave it power to acquire, sell and dispose of and deal with mines and mining properties; (3) as a major part of the land purchased by the assessee was in the possession of the other mining Companies, it was not possible for the assessee to undertake any large scale and profitable mining operation; (4) the assessee sold the lands purchased by it for a profit and (5) the properties purchased were sold very soon after they were purchased. 8. The above findings did not afford any basis to the tribunal to come to the conclusion that the purchases made by the assessee and the subsequent sale were in the nature of a trading adventure. The circumstance that the memorandum of association of the assessee permitted the assessee to acquire, and sell and dispose of and deal with mining properties is an inconclusive one. It is not shown that the assessee had acquired or sold any other property. The fact that the assessee sold property purchased by it for profit is not decisive in finding out whether the sale was effected in the course of the business of the assessee. From the fact that the assessee could not undertake large scale and profitable mining in the area which was in its possession, no inference may be drawn that lands were acquired with a view to sell later on, nor the circumstance that the properties were sold very soon after they were purchased affords any basis for the conclusion that the sale in question was effected in the course of the business. The primary facts found either individually, or collectively could not have afforded a basis for arriving at the conclusion that the transaction in question was an adventure in trade. 9. It was urged on behalf of the Revenue that the finding of the tribunal that the purchase and sale of lands were made in the course of business being a finding of fact, it was not open to the High Court to interfere with that finding. But as observed by this Court in G. Venkataswami Naidu and Co. v Commissioner of Income-tax, 35 ITR 594 = (AIR 1959 SC 359 )if the finding of fact is based on an inference from the primary evidentiary facts proved in the case, its correctness or validity is open to challenge in reference proceedings within narrow limits. It is open to the parties to challenge a conclusion of fact drawn by the tribunal on the ground that it is not supported by any legal evidence or that the impugned conclusion drawn from the relevant facts is not rationally possible. If such a plea is established, the Court has to consider whether the conclusion in question is not perverse and should not, therefore, be set aside. On the facts of this case the High Court was justified in examining the correctness of the inference drawn by the Tribunal on the basis of the primary facts found by that Tribunal. | 0[ds]As per the terms of the said conveyance, the assessee became entitled to the arrears of rent and royalty as a purchaser of those rights. It had no right to collect those arrears of rent and royalty as the owner of the property. It may be that in determining the price payable under the conveyance, the arrears of rent and royalty were not taken into consideration. But that does not change the nature of the right acquired by the assessee. Hence we agree with the High Court that the first question referred of earlier must be answered in favour of the assessee. | 0 | 1,755 | 113 | ### Instruction:
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Co. Ltd. and three other parties for a total sum of Rupees 7,50,000/-. The Income-tax Officer treated the entire arrears of rent and royalty amounting to Rs. 3,00,332/- as revenue receipts of the assessee taxable during the assessment year 1950-51. He also treated the sale of the lands by the assessee as a business transaction and taxed a sum of Rupees 2,20,000/- as the net profit of the assessee arising from the sale, which profit was recomputed by the Appellate Assistant Commissioner at Rupees 2,80,000/-. The Income-tax Appellate Tribunal agreed with those conclusions. 5. The High Court of Calcutta differing from the conclusions reached by the Income-tax Officer, Appellate Assistant Commissioner and the Tribunal came to the conclusion that the sums of Rs. 2,55,733/- and Rs. 3,00,332/- receivable by the assessee as arrears of royalty and rent were not assessable as the profits of the assessee for the assessment years 1948-49 and 1950-51 respectively. It also disagreed with the conclusions reached by the Income-tax Officer. Appellate Assistant Commissioner and the Tribunal that profit made by the assessee by the sale of the properties purchased from Raja of Ramgarh was assessable as the income of the assessee for the assessment year 1950-51. Aggrieved by that order, the Commissioner of Income-tax, West Bengal has come up in appeal to this Court. 6. We are in agreement with the High Court that the purchase of the right to collect arrears of rent and royalty cannot be considered as an income. It is true that the assessee purchased the lessors right from the Raja of Ramgarh in pursuance of the agreements entered into by the Raja of Ramgarh with third parties whose rights had been acquired by the assessee. The assessee company had been incorporated, as seen earlier, on January 23, 1947. Therefore it could not have got any right in the property prior to the conveyance in its favour on December 22, 1947. As per the terms of the said conveyance, the assessee became entitled to the arrears of rent and royalty as a purchaser of those rights. It had no right to collect those arrears of rent and royalty as the owner of the property. It may be that in determining the price payable under the conveyance, the arrears of rent and royalty were not taken into consideration. But that does not change the nature of the right acquired by the assessee. Hence we agree with the High Court that the first question referred of earlier must be answered in favour of the assessee. 7. Now coming to the second question, according to the assessee, it purchased the tracts of land in question with a view to win mines but for want of finance, it was compelled to sell the same. The primary facts found by the tribunal are: (1) the assessee was heavily indebted to Raja of Ramgarh but there was no evidence to show that the Raja was pressing for the payment of the amount due to him; (2) the memorandum of association of the assessee gave it power to acquire, sell and dispose of and deal with mines and mining properties; (3) as a major part of the land purchased by the assessee was in the possession of the other mining Companies, it was not possible for the assessee to undertake any large scale and profitable mining operation; (4) the assessee sold the lands purchased by it for a profit and (5) the properties purchased were sold very soon after they were purchased. 8. The above findings did not afford any basis to the tribunal to come to the conclusion that the purchases made by the assessee and the subsequent sale were in the nature of a trading adventure. The circumstance that the memorandum of association of the assessee permitted the assessee to acquire, and sell and dispose of and deal with mining properties is an inconclusive one. It is not shown that the assessee had acquired or sold any other property. The fact that the assessee sold property purchased by it for profit is not decisive in finding out whether the sale was effected in the course of the business of the assessee. From the fact that the assessee could not undertake large scale and profitable mining in the area which was in its possession, no inference may be drawn that lands were acquired with a view to sell later on, nor the circumstance that the properties were sold very soon after they were purchased affords any basis for the conclusion that the sale in question was effected in the course of the business. The primary facts found either individually, or collectively could not have afforded a basis for arriving at the conclusion that the transaction in question was an adventure in trade. 9. It was urged on behalf of the Revenue that the finding of the tribunal that the purchase and sale of lands were made in the course of business being a finding of fact, it was not open to the High Court to interfere with that finding. But as observed by this Court in G. Venkataswami Naidu and Co. v Commissioner of Income-tax, 35 ITR 594 = (AIR 1959 SC 359 )if the finding of fact is based on an inference from the primary evidentiary facts proved in the case, its correctness or validity is open to challenge in reference proceedings within narrow limits. It is open to the parties to challenge a conclusion of fact drawn by the tribunal on the ground that it is not supported by any legal evidence or that the impugned conclusion drawn from the relevant facts is not rationally possible. If such a plea is established, the Court has to consider whether the conclusion in question is not perverse and should not, therefore, be set aside. On the facts of this case the High Court was justified in examining the correctness of the inference drawn by the Tribunal on the basis of the primary facts found by that Tribunal.
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### Explanation:
As per the terms of the said conveyance, the assessee became entitled to the arrears of rent and royalty as a purchaser of those rights. It had no right to collect those arrears of rent and royalty as the owner of the property. It may be that in determining the price payable under the conveyance, the arrears of rent and royalty were not taken into consideration. But that does not change the nature of the right acquired by the assessee. Hence we agree with the High Court that the first question referred of earlier must be answered in favour of the assessee.
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India United Mills Ltd Vs. Commissioner Of Excess Profitstax, Bombay | relief which depended on facts then in existence. That that is the ratio of the decision will appear from the following passages in the judgment."I apprehend that there is no distinction in this matter between an original assessment and an additional assessment under section 125. Taking section 125 of the Income Tax Act 1918, for the purposes of illustration, and because it was the section under which the additional assessments were made in this case, it seems to me that section 18 of the Finance Act, 1920, and the Income Tax Act, 1918, relate to the facts as they exist at the time. The person chargeable was allowed a deduction, and he was rightly allowed a deduction at the time. He proved within the terms of section 18 of the Act of 1920 that his wife was living with him, and he was rightly allowed a deduction at that time."14. The principle of this decision is that assessments should not be reopened on the basis of subsequent events, when the facts on which the assessments had been made remained unaffected thereby. In this connection, reference may be made to the decision in Gray (H. M. Inspector of Taxes) v. Lord Penrhyn, where it was held that action under section 125 could be taken with reference to events which happened subsequently, those events having relation to the facts on which the assessments had been made. There, the assessee, who was the owner of a slate quarry had shown in his income-tax returns various amounts as paid to labourers, and those amounts had been allowed as business expenses. In fact, sums amount to Pound 5, 201 had been misappropriated by the officers employed by him and had not been expended. The defalcations were subsequently discovered, and in 1934 the assessee realised that amount from his auditor and his insurer as damages for negligence. The Income-tax Inspector sought to revise the assessments from 1930 to 1933 by claiming that amount as wrongly deducted during those years, or in the alternative, to assess it as a business income in 1934. The Commissioner held that the assessments for 1930 to 1933 could not be reopened on the basis of the receipt in 1934, as that was an event subsequent to the period of assessment, one of the cases relied on by him in support of his conclusion being Dodworth v. Dale. Finlay. J., disagreed with this view. He held firstly that the amount could be treated as a business receipt and added :"If I felt any difficulty about that, which I do not, I should be prepared to say that there is nothing in the authorities which prevents that re-opening which manifestly ought to be made, if necessary, and that if necessary the previous years ought to be re-opened."15. Then there is the decision in Anderton & Halstead Ltd. v. Birrell referred to in Dodworth v. Dale and relied on by Mr. Kolah. There, the assessees had written off certain debts as irrecoverable in 1921 and 1922. The Inspector of Taxes had, on a consideration of all the facts, agreed to this, and assessments were made on the footing that they were bad debts. Thereafter, the assessees continued to have dealings with those debtors, and gave them further credit in subsequent years. On this, the Inspector sought to review the assessments on the ground that the debts were not, in fact, bad debts. In negativing this contention, Rowlatt, J., observed that "the word discover does not, in my view, include a mere change of opinion on the same facts and figures upon the same question of accountancy, being a question of opinion", that under the rules, the estimate to what extent a debt is bad was "not a prophecy to be judged... by after events, but a valuation of an asset de praesenti upon an uncertain future to be judged with regard to its soundness as an estimate upon the then facts and probabilities", and that an estimate once made could not, on the same materials, be revised in subsequent years.16. Apart from the fact that some of the observation contained in this judgment were considered by Finlay, J., in Williams v. Trustees of W. W. Grundy and by the Court of Appeal in Commercial Structures Ltd. v. Briggs, to have been widely expressed, the decision itself has no application to the facts of the present case. We are concerned here not with a valuation in praesenti of a debt estimated to be bad, but with a relief granted with reference to a state of facts which were anticipated to come into existence only in the future. Moreover, Inland Revenue Commissioners v. Pearson; Same v. Pratt and Anderton & Halstead v. Birrell are decisions on section 125 of the English Income Tax Act of 1918.17. There has been quite a literature on the meaning of the word "discovers" occurring in that section and in the corresponding sections of other English Income Tax statutes, and the question has also been considered in the Indian Courts on the language of section 34 of the Indian Income-tax Act, as it stood prior to the amendment of 1948. Whatever the position if the question were to arise under the Indian Income Tax Act - and there is no need to express any final opinion on it - having regard to the nature and scope of the provisions of the Excess Profits Tax Act and in particular section 26 (3), we are of opinion that the word "discovers" in section 15 of the Act is of sufficient amplitude to take in subsequent events which have a material bearing on the facts and circumstances on which assessment had been made or relief grants, and that when the Excess Profits Tax Officer finds that an assessee to whom relief had been granted under section 26 (3) has utilised the buildings, plant or machinery in business after the termination of the war, he is entitled to proceed under section 15 of the Act. | 0[ds]The meaning given to it in the Oxford English Dictionary is "the finding out or bringing to light that which was previously unknown." (Vol. 3, page 433). It will therefore be correct to say that when a person comes to know of a fact of which he had no previous knowledge he discovers that fact, whether his want of knowledge is due to its not have been in existence during the material period, or to its having been unknown to him even though it might have been in existence. The word thus being one of wide import, what meaning it bears in any particular enactment must depend on thesection is, it should be emphasised, not a charging section, but a machinery section. And a machinery section should be so construed as to effectuate the charging sections. Section 15 is intended to vest in the Excess Profits Tax Officer a power to amend the assessment, when it is found that the relief granted is in excess of what the law allows. One of the sections under which relief could be granted under the Act is section 26 (3) and therefore section 15 must be so interpreted as to confer a power on the Excess Profits Tax Officer to revise the assessment when relief had been erroneously granted under that section. Now, section 26 (3) provides for relief being granted when the buildings, plant or machinery would not be required by the assessee for his business after the war. And when it is found that after obtaining a relief under that section, the assessee uses buildings, plant and machinery in his business after the war, and that he has in consequence obtained a relief to which he was not entitled under the Act, where is the machinery set up by the Act for imposing the correct charge, unless it be under section 15 ? And how is that section to be invoked if "discovery" is to be limited to facts, which were in existence during the chargeable accounting period ? The relief to be granted under section 26 (3) is by its very nature with reference to a state of affairs in futuro; and a finding that it has been erroneously granted could be reached only on the basis of facts which must arise subsequent to the chargeable accounting period. To hold that no action could be taken in such cases under section 15 is to hold that the statute has provided no machinery for carrying into effect the conditions prescribed in section 26condition had been imposed under the proviso to that section, and that condition was subsequently broken, the only action that could be taken thereon is initiation of proceedings for reassessing the profits, ignoring the relief granted under section 26 (3); and the machinery therefor is provided only in section 15 of the Act. The scope of the two sections being different, the proviso to section 26 (3) cannot be construed as affecting, to any extent, the jurisdiction conferred by section 15 of thesection 125 of the Income Tax Act 1918, for the purposes of illustration, and because it was the section under which the additional assessments were made in this case, it seems to me that section 18 of the Finance Act, 1920, and the Income Tax Act, 1918, relate to the facts as they exist at the time. The person chargeable was allowed a deduction, and he was rightly allowed a deduction at the time. He proved within the terms of section 18 of the Act of 1920 that his wife was living with him, and he was rightly allowed a deduction at thatprinciple of this decision is that assessments should not be reopened on the basis of subsequent events, when the facts on which the assessments had been made remained unaffectedhas been quite a literature on the meaning of the word "discovers" occurring in thatin the corresponding sections of other English Income Tax statutes, and the question has also been considered in the Indian Courts on the language of section 34 of the Indian Income-tax Act, as it stood prior to the amendment of 1948. Whatever the position if the question were to arise under the Indian Income Tax Act - and there is no need to express any final opinion on it - having regard to the nature and scope of the provisions of the Excess Profits Tax Act and in particular section 26 (3), we are of opinion that the word "discovers" in section 15 of the Act is of sufficient amplitude to take in subsequent events which have a material bearing on the facts and circumstances on which assessment had been made or relief grants, and that when the Excess Profits Tax Officer finds that an assessee to whom relief had been granted under section 26 (3) has utilised the buildings, plant or machinery in business after the termination of the war, he is entitled to proceed under section 15 of the | 0 | 4,326 | 911 | ### 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:
relief which depended on facts then in existence. That that is the ratio of the decision will appear from the following passages in the judgment."I apprehend that there is no distinction in this matter between an original assessment and an additional assessment under section 125. Taking section 125 of the Income Tax Act 1918, for the purposes of illustration, and because it was the section under which the additional assessments were made in this case, it seems to me that section 18 of the Finance Act, 1920, and the Income Tax Act, 1918, relate to the facts as they exist at the time. The person chargeable was allowed a deduction, and he was rightly allowed a deduction at the time. He proved within the terms of section 18 of the Act of 1920 that his wife was living with him, and he was rightly allowed a deduction at that time."14. The principle of this decision is that assessments should not be reopened on the basis of subsequent events, when the facts on which the assessments had been made remained unaffected thereby. In this connection, reference may be made to the decision in Gray (H. M. Inspector of Taxes) v. Lord Penrhyn, where it was held that action under section 125 could be taken with reference to events which happened subsequently, those events having relation to the facts on which the assessments had been made. There, the assessee, who was the owner of a slate quarry had shown in his income-tax returns various amounts as paid to labourers, and those amounts had been allowed as business expenses. In fact, sums amount to Pound 5, 201 had been misappropriated by the officers employed by him and had not been expended. The defalcations were subsequently discovered, and in 1934 the assessee realised that amount from his auditor and his insurer as damages for negligence. The Income-tax Inspector sought to revise the assessments from 1930 to 1933 by claiming that amount as wrongly deducted during those years, or in the alternative, to assess it as a business income in 1934. The Commissioner held that the assessments for 1930 to 1933 could not be reopened on the basis of the receipt in 1934, as that was an event subsequent to the period of assessment, one of the cases relied on by him in support of his conclusion being Dodworth v. Dale. Finlay. J., disagreed with this view. He held firstly that the amount could be treated as a business receipt and added :"If I felt any difficulty about that, which I do not, I should be prepared to say that there is nothing in the authorities which prevents that re-opening which manifestly ought to be made, if necessary, and that if necessary the previous years ought to be re-opened."15. Then there is the decision in Anderton & Halstead Ltd. v. Birrell referred to in Dodworth v. Dale and relied on by Mr. Kolah. There, the assessees had written off certain debts as irrecoverable in 1921 and 1922. The Inspector of Taxes had, on a consideration of all the facts, agreed to this, and assessments were made on the footing that they were bad debts. Thereafter, the assessees continued to have dealings with those debtors, and gave them further credit in subsequent years. On this, the Inspector sought to review the assessments on the ground that the debts were not, in fact, bad debts. In negativing this contention, Rowlatt, J., observed that "the word discover does not, in my view, include a mere change of opinion on the same facts and figures upon the same question of accountancy, being a question of opinion", that under the rules, the estimate to what extent a debt is bad was "not a prophecy to be judged... by after events, but a valuation of an asset de praesenti upon an uncertain future to be judged with regard to its soundness as an estimate upon the then facts and probabilities", and that an estimate once made could not, on the same materials, be revised in subsequent years.16. Apart from the fact that some of the observation contained in this judgment were considered by Finlay, J., in Williams v. Trustees of W. W. Grundy and by the Court of Appeal in Commercial Structures Ltd. v. Briggs, to have been widely expressed, the decision itself has no application to the facts of the present case. We are concerned here not with a valuation in praesenti of a debt estimated to be bad, but with a relief granted with reference to a state of facts which were anticipated to come into existence only in the future. Moreover, Inland Revenue Commissioners v. Pearson; Same v. Pratt and Anderton & Halstead v. Birrell are decisions on section 125 of the English Income Tax Act of 1918.17. There has been quite a literature on the meaning of the word "discovers" occurring in that section and in the corresponding sections of other English Income Tax statutes, and the question has also been considered in the Indian Courts on the language of section 34 of the Indian Income-tax Act, as it stood prior to the amendment of 1948. Whatever the position if the question were to arise under the Indian Income Tax Act - and there is no need to express any final opinion on it - having regard to the nature and scope of the provisions of the Excess Profits Tax Act and in particular section 26 (3), we are of opinion that the word "discovers" in section 15 of the Act is of sufficient amplitude to take in subsequent events which have a material bearing on the facts and circumstances on which assessment had been made or relief grants, and that when the Excess Profits Tax Officer finds that an assessee to whom relief had been granted under section 26 (3) has utilised the buildings, plant or machinery in business after the termination of the war, he is entitled to proceed under section 15 of the Act.
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### Explanation:
The meaning given to it in the Oxford English Dictionary is "the finding out or bringing to light that which was previously unknown." (Vol. 3, page 433). It will therefore be correct to say that when a person comes to know of a fact of which he had no previous knowledge he discovers that fact, whether his want of knowledge is due to its not have been in existence during the material period, or to its having been unknown to him even though it might have been in existence. The word thus being one of wide import, what meaning it bears in any particular enactment must depend on thesection is, it should be emphasised, not a charging section, but a machinery section. And a machinery section should be so construed as to effectuate the charging sections. Section 15 is intended to vest in the Excess Profits Tax Officer a power to amend the assessment, when it is found that the relief granted is in excess of what the law allows. One of the sections under which relief could be granted under the Act is section 26 (3) and therefore section 15 must be so interpreted as to confer a power on the Excess Profits Tax Officer to revise the assessment when relief had been erroneously granted under that section. Now, section 26 (3) provides for relief being granted when the buildings, plant or machinery would not be required by the assessee for his business after the war. And when it is found that after obtaining a relief under that section, the assessee uses buildings, plant and machinery in his business after the war, and that he has in consequence obtained a relief to which he was not entitled under the Act, where is the machinery set up by the Act for imposing the correct charge, unless it be under section 15 ? And how is that section to be invoked if "discovery" is to be limited to facts, which were in existence during the chargeable accounting period ? The relief to be granted under section 26 (3) is by its very nature with reference to a state of affairs in futuro; and a finding that it has been erroneously granted could be reached only on the basis of facts which must arise subsequent to the chargeable accounting period. To hold that no action could be taken in such cases under section 15 is to hold that the statute has provided no machinery for carrying into effect the conditions prescribed in section 26condition had been imposed under the proviso to that section, and that condition was subsequently broken, the only action that could be taken thereon is initiation of proceedings for reassessing the profits, ignoring the relief granted under section 26 (3); and the machinery therefor is provided only in section 15 of the Act. The scope of the two sections being different, the proviso to section 26 (3) cannot be construed as affecting, to any extent, the jurisdiction conferred by section 15 of thesection 125 of the Income Tax Act 1918, for the purposes of illustration, and because it was the section under which the additional assessments were made in this case, it seems to me that section 18 of the Finance Act, 1920, and the Income Tax Act, 1918, relate to the facts as they exist at the time. The person chargeable was allowed a deduction, and he was rightly allowed a deduction at the time. He proved within the terms of section 18 of the Act of 1920 that his wife was living with him, and he was rightly allowed a deduction at thatprinciple of this decision is that assessments should not be reopened on the basis of subsequent events, when the facts on which the assessments had been made remained unaffectedhas been quite a literature on the meaning of the word "discovers" occurring in thatin the corresponding sections of other English Income Tax statutes, and the question has also been considered in the Indian Courts on the language of section 34 of the Indian Income-tax Act, as it stood prior to the amendment of 1948. Whatever the position if the question were to arise under the Indian Income Tax Act - and there is no need to express any final opinion on it - having regard to the nature and scope of the provisions of the Excess Profits Tax Act and in particular section 26 (3), we are of opinion that the word "discovers" in section 15 of the Act is of sufficient amplitude to take in subsequent events which have a material bearing on the facts and circumstances on which assessment had been made or relief grants, and that when the Excess Profits Tax Officer finds that an assessee to whom relief had been granted under section 26 (3) has utilised the buildings, plant or machinery in business after the termination of the war, he is entitled to proceed under section 15 of the
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Fateh Mohd, Son Of Nathu Vs. Delhi Administration | born at Allahabad at "the time when it was His Majestys Dominion. He had left India for Pakistan but returned on a Passport granted by the Government of Pakistan on May 16, 1958. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November, 1953. Under Paragraph 7 of the Foreigners Order 1948 issued under S. 3 of the Foreigners Act, every foreigner entering India on the authority of a visa shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As the appellant stayed after November 15, 1953, without permission given under that order, he was prosecuted for breach of the said order. It would be seen from the said facts that the appellant therein was prosecuted for an offence committed by him before the Amending Act of 1957 came into force on January 19, 1957. This court on the said facts held that the appellant therein could not be convicted for the breach of Paragraph 7 of the Foreigners Order as he not being a foreigner at that time could not have committed a breach thereof, but clearly this decision cannot apply to an offense committed by a person who falls within the amended definition of foreigner, after the Amending Act came into force. Indeed this court in express terms let open that question at p. 1523 (of AIR 1961 SC 1522)."No question as to the effect of the amended definition on the appellants status fell for our decision in this case, for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under S.3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant."What has been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under the Act. Some of the relevant provisions of the Constitution and the Foreigners Act 31 of 1946, may conveniently be extracted. Article 5 of the Constitution says :"At the commencement of this Constitution, every person who has his domicile in the territory of India and(a) who was born in the territory of India; or(b) either of whose parents was born in the territory of India; or(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."Section 9 of the Foreigners Act 1946, is in these terms :-"If in any case not falling under S. 8 any question arises with reference to this Act or any order made or direction given thereunder whether any person is or is not a foreigner .....the onus of proving that such person is not a foreigner.......shall, notwithstanding anything contained in the Indian Evidence Act 1872 (1 of 1872) lie upon such person."10.Under Art. 5(a) of the Constitution the appellant cannot be a citizen of India unless he was born in the territory of India and had his domicile in the territory of India at the commencement of the Constitution. In this case the appellant claimed to be a citizen under Art. 5(a), of the Constitution. By reason of S. 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner. This court in Union of India v. Gyaus Mohammad, (1962) 1 SCR 744 : (AIR 1961 SC 1526 ), accepted this legal position and laid down at p. 748 (of SCR): (at p. 1527 of AIR), thus :"It does not seems to have realised that the burden of proving that he was not foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question."Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the Constitution. | 0[ds]There is a fallacy underlying in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment on the basis he was a foreigner; for instance an act done by him such as his entry into India or his non-compliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner. But the offense for which he is now charged is an act done by him in derogation of an order issued to him after the amendment. On the dale when the Delhi Administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the originalhas been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under thethrowing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the | 0 | 2,791 | 519 | ### 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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born at Allahabad at "the time when it was His Majestys Dominion. He had left India for Pakistan but returned on a Passport granted by the Government of Pakistan on May 16, 1958. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November, 1953. Under Paragraph 7 of the Foreigners Order 1948 issued under S. 3 of the Foreigners Act, every foreigner entering India on the authority of a visa shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As the appellant stayed after November 15, 1953, without permission given under that order, he was prosecuted for breach of the said order. It would be seen from the said facts that the appellant therein was prosecuted for an offence committed by him before the Amending Act of 1957 came into force on January 19, 1957. This court on the said facts held that the appellant therein could not be convicted for the breach of Paragraph 7 of the Foreigners Order as he not being a foreigner at that time could not have committed a breach thereof, but clearly this decision cannot apply to an offense committed by a person who falls within the amended definition of foreigner, after the Amending Act came into force. Indeed this court in express terms let open that question at p. 1523 (of AIR 1961 SC 1522)."No question as to the effect of the amended definition on the appellants status fell for our decision in this case, for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under S.3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant."What has been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under the Act. Some of the relevant provisions of the Constitution and the Foreigners Act 31 of 1946, may conveniently be extracted. Article 5 of the Constitution says :"At the commencement of this Constitution, every person who has his domicile in the territory of India and(a) who was born in the territory of India; or(b) either of whose parents was born in the territory of India; or(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."Section 9 of the Foreigners Act 1946, is in these terms :-"If in any case not falling under S. 8 any question arises with reference to this Act or any order made or direction given thereunder whether any person is or is not a foreigner .....the onus of proving that such person is not a foreigner.......shall, notwithstanding anything contained in the Indian Evidence Act 1872 (1 of 1872) lie upon such person."10.Under Art. 5(a) of the Constitution the appellant cannot be a citizen of India unless he was born in the territory of India and had his domicile in the territory of India at the commencement of the Constitution. In this case the appellant claimed to be a citizen under Art. 5(a), of the Constitution. By reason of S. 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner. This court in Union of India v. Gyaus Mohammad, (1962) 1 SCR 744 : (AIR 1961 SC 1526 ), accepted this legal position and laid down at p. 748 (of SCR): (at p. 1527 of AIR), thus :"It does not seems to have realised that the burden of proving that he was not foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question."Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the Constitution.
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### Explanation:
There is a fallacy underlying in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment on the basis he was a foreigner; for instance an act done by him such as his entry into India or his non-compliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner. But the offense for which he is now charged is an act done by him in derogation of an order issued to him after the amendment. On the dale when the Delhi Administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the originalhas been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under thethrowing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the
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Dr. Gopal Dass Verma Vs. Dr. S. K. Bhardwaj And Another | be said to have been let for use as a residence or for a commercial use and so they ceased to be premises under the Act. It is suggested that any other use which is specified by S. 2(g) would not include a combination of residence with commercial or professional purposes. The other use there referred to may be use for charity or something of that kind which is different from use as residence or commercial use.In our opinion this argument is not well founded. The three kinds of user to which the definition refers are residence commerce and any other purpose which necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Solicitor-General. As soon as it is shown that the premises have been let both for the use of residence and for commercial purposes it does not follow that the premises cease to be premises under S. 2(g); they continue to be premises under the last clause of S. 2(g). This position is wholly consistent with the division of the premises made with reference to their user in paragraphs 3, 4 and 5 of Part A in the Second Schedule to the Act.Therefore, in our opinion, the argument urged by the learned Solicitor-General on the construction of S. 2(g) cannot be sustained. It will be recalled that the present suit has been filed by the appellant himself praying for the respondents ejectment under the provisions of the Act, and so the argument that the Act does not apply to the premises in question can be justly characterised as an argument of desperation.9. Then it is contended that even if the appellant may not be entitled to claim ejectment under S. 13(1)(e) he would be justified in claiming a decree for ejectment against the respondent independently under S. 13(1)(h). It is urged that as soon as it is shown that respondent 1 has acquired a suitable residence he can be ejected even though S. 13(1)(e) may not apply to his tenancy. In our opinion even this argument is fallacious. Section 13(1)(h) applies to tenancies which are created for essential purposes, and it provides that in the case of such tenancies even if the landlord may not be able to prove his case under S. 13(1) (e) be would nevertheless be entitled to, eject the tenant once it is shown that the tenant has acquired another suitable residence. The requirement is that the tenant must have suitable residence. Both words of the requirement are significant; what he has acquired must be residence, that is to say the premises which ejectment is sought are used not only for residence but also for profession how could S. 13(1)(h) come into operation? One of the purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which are suitable for residence alone, and it is the suitability for residence along which is postulated by S. 13(1)(h).Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can by successfully terminated merely be showing that the tenant has acquired a suitable residence. That is the view taken by the High Court and we see no reason to differ from the conclusion of the High Court.10. The last argument urged by the learned Solicitor-General as that respondent 1 should not be allowed to approbate and reprobate as he has done in the present case. This argument is based on the conduct of the respondent at the previous stages of the dispute. It is true that in 1941 and onwards respondent 1 has successfully urged that the tenancy was for residence, and in consequence has secured the extension of tenancy under cl. 11A of the New Delhi House Rent Control Order, 1939, issued under R. 81(2)(bb) of the Defence of India Rules. The statements made by respondent 1 in that behalf indicate that he exercised his option of obtaining extension of the lease on the ground that the premises were let out to him for residence. The argument is that since by the said representations he had actually obtained an advantage he cannot be permitted now to contend that the lease is not only for residence.11. On the other hand the conduct of the appellant himself is also inconsistent with the stand taken by him in the present proceedings. In 1942 when he demanded an increased rent from respondent 1 he made out a case which is inconsistent with his present story that the premises were let out to respondent 1 only for residence. The case then made out by him appears to be that the tenancy fell under paragraph 4 of Part A in the Second Schedule to the Act and that would mean that the premises had not been let only for residence. Indeed the conduct of both the parties has been actuated solely by considerations of expediency and self-interest in this case, and so it would prima facie be idle for the appellant to contend that respondent 1 should not be allowed to approbate and reprobate. But, apart from this fact, it is obvious that the appellant cannot be allowed to raise this contention, for the first time before this Court. The plea sought to be raised can be decided only after relevant evidence is adduced by the parties, and since this plea has not been raised by the appellant at the proper stage respondent 1 has had no opportunity to meet the plea and that itself precludes the appellant from contending that though the lease may not be one for residence alone respondent 1 should not be permitted to urge that it is not for residence but for residence and profession. It is the settled practice of this Court that new pleas of this kind which need further evidence are not allowed to be raised in appeals under Art. 136 of the Constitution. | 0[ds]7. It would be noticed that as soon as it is found that the premises in question have been used by respondent 1 incidentally for professional purposes and it is further established that this use is made with the consent of the landlord then the case goes outside the purview of S. 13(1)(e) altogether. In the present case it has been found by the appellate Court and the High Court that right from the commencement of the tenancy a substantial part of the premises is used by respondent 1 for his professional purpose, and they have also found that this has been done obviously with the consent of the landlord. It is unnecessary to refer to the evidence on which this finding is based. Even the trial Court was apparently inclined to take the same view about this evidence but it did not fully appreciate the effect of the explanation; otherwise it would have realised that the professional use of a substantial part of the premises with the consent of the appellant clearly takes the case outside S. 13(1)(e).In other words, where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord the landlord would not be entitled to eject the tenant even if he groves that he needs the premises bona fide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone. This position cannot be seriouslyis suggested that any other use which is specified by S. 2(g) would not include a combination of residence with commercial or professional purposes. The other use there referred to may be use for charity or something of that kind which is different from use as residence or commercial use.In our opinion this argument is not well founded. The three kinds of user to which the definition refers are residence commerce and any other purpose which necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Solicitor-General. As soon as it is shown that the premises have been let both for the use of residence and for commercial purposes it does not follow that the premises cease to be premises under S. 2(g); they continue to be premises under the last clause of S. 2(g). This position is wholly consistent with the division of the premises made with reference to their user in paragraphs 3, 4 and 5 of Part A in the Second Schedule to the Act.Therefore, in our opinion, the argument urged by the learned Solicitor-General on the construction of S. 2(g) cannot be sustained. It will be recalled that the present suit has been filed by the appellant himself praying for the respondents ejectment under the provisions of the Act, and so the argument that the Act does not apply to the premises in question can be justly characterised as an argument ofour opinion even this argument is fallacious. Section 13(1)(h) applies to tenancies which are created for essential purposes, and it provides that in the case of such tenancies even if the landlord may not be able to prove his case under S. 13(1) (e) be would nevertheless be entitled to, eject the tenant once it is shown that the tenant has acquired another suitable residence. The requirement is that the tenant must have suitable residence. Both words of the requirement are significant; what he has acquired must be residence, that is to say the premises which ejectment is sought are used not only for residence but also for profession how could S. 13(1)(h) come into operation? One of the purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which are suitable for residence alone, and it is the suitability for residence along which is postulated by S. 13(1)(h).Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can by successfully terminated merely be showing that the tenant has acquired a suitable residence. That is the view taken by the High Court and we see no reason to differ from the conclusion of the Highis true that in 1941 and onwards respondent 1 has successfully urged that the tenancy was for residence, and in consequence has secured the extension of tenancy under cl. 11A of the New Delhi House Rent Control Order, 1939, issued under R. 81(2)(bb) of the Defence of India Rules. The statements made by respondent 1 in that behalf indicate that he exercised his option of obtaining extension of the lease on the ground that the premises were let out to him for residence.On the other hand the conduct of the appellant himself is also inconsistent with the stand taken by him in the present proceedings. In 1942 when he demanded an increased rent from respondent 1 he made out a case which is inconsistent with his present story that the premises were let out to respondent 1 only for residence. The case then made out by him appears to be that the tenancy fell under paragraph 4 of Part A in the Second Schedule to the Act and that would mean that the premises had not been let only for residence. Indeed the conduct of both the parties has been actuated solely by considerations of expediency and self-interest in this case, and so it would prima facie be idle for the appellant to contend that respondent 1 should not be allowed to approbate and reprobate. But, apart from this fact, it is obvious that the appellant cannot be allowed to raise this contention, for the first time before this Court. The plea sought to be raised can be decided only after relevant evidence is adduced by the parties, and since this plea has not been raised by the appellant at the proper stage respondent 1 has had no opportunity to meet the plea and that itself precludes the appellant from contending that though the lease may not be one for residence alone respondent 1 should not be permitted to urge that it is not for residence but for residence and profession. It is the settled practice of this Court that new pleas of this kind which need further evidence are not allowed to be raised in appeals under Art. 136 of the Constitution. | 0 | 2,996 | 1,194 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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be said to have been let for use as a residence or for a commercial use and so they ceased to be premises under the Act. It is suggested that any other use which is specified by S. 2(g) would not include a combination of residence with commercial or professional purposes. The other use there referred to may be use for charity or something of that kind which is different from use as residence or commercial use.In our opinion this argument is not well founded. The three kinds of user to which the definition refers are residence commerce and any other purpose which necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Solicitor-General. As soon as it is shown that the premises have been let both for the use of residence and for commercial purposes it does not follow that the premises cease to be premises under S. 2(g); they continue to be premises under the last clause of S. 2(g). This position is wholly consistent with the division of the premises made with reference to their user in paragraphs 3, 4 and 5 of Part A in the Second Schedule to the Act.Therefore, in our opinion, the argument urged by the learned Solicitor-General on the construction of S. 2(g) cannot be sustained. It will be recalled that the present suit has been filed by the appellant himself praying for the respondents ejectment under the provisions of the Act, and so the argument that the Act does not apply to the premises in question can be justly characterised as an argument of desperation.9. Then it is contended that even if the appellant may not be entitled to claim ejectment under S. 13(1)(e) he would be justified in claiming a decree for ejectment against the respondent independently under S. 13(1)(h). It is urged that as soon as it is shown that respondent 1 has acquired a suitable residence he can be ejected even though S. 13(1)(e) may not apply to his tenancy. In our opinion even this argument is fallacious. Section 13(1)(h) applies to tenancies which are created for essential purposes, and it provides that in the case of such tenancies even if the landlord may not be able to prove his case under S. 13(1) (e) be would nevertheless be entitled to, eject the tenant once it is shown that the tenant has acquired another suitable residence. The requirement is that the tenant must have suitable residence. Both words of the requirement are significant; what he has acquired must be residence, that is to say the premises which ejectment is sought are used not only for residence but also for profession how could S. 13(1)(h) come into operation? One of the purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which are suitable for residence alone, and it is the suitability for residence along which is postulated by S. 13(1)(h).Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can by successfully terminated merely be showing that the tenant has acquired a suitable residence. That is the view taken by the High Court and we see no reason to differ from the conclusion of the High Court.10. The last argument urged by the learned Solicitor-General as that respondent 1 should not be allowed to approbate and reprobate as he has done in the present case. This argument is based on the conduct of the respondent at the previous stages of the dispute. It is true that in 1941 and onwards respondent 1 has successfully urged that the tenancy was for residence, and in consequence has secured the extension of tenancy under cl. 11A of the New Delhi House Rent Control Order, 1939, issued under R. 81(2)(bb) of the Defence of India Rules. The statements made by respondent 1 in that behalf indicate that he exercised his option of obtaining extension of the lease on the ground that the premises were let out to him for residence. The argument is that since by the said representations he had actually obtained an advantage he cannot be permitted now to contend that the lease is not only for residence.11. On the other hand the conduct of the appellant himself is also inconsistent with the stand taken by him in the present proceedings. In 1942 when he demanded an increased rent from respondent 1 he made out a case which is inconsistent with his present story that the premises were let out to respondent 1 only for residence. The case then made out by him appears to be that the tenancy fell under paragraph 4 of Part A in the Second Schedule to the Act and that would mean that the premises had not been let only for residence. Indeed the conduct of both the parties has been actuated solely by considerations of expediency and self-interest in this case, and so it would prima facie be idle for the appellant to contend that respondent 1 should not be allowed to approbate and reprobate. But, apart from this fact, it is obvious that the appellant cannot be allowed to raise this contention, for the first time before this Court. The plea sought to be raised can be decided only after relevant evidence is adduced by the parties, and since this plea has not been raised by the appellant at the proper stage respondent 1 has had no opportunity to meet the plea and that itself precludes the appellant from contending that though the lease may not be one for residence alone respondent 1 should not be permitted to urge that it is not for residence but for residence and profession. It is the settled practice of this Court that new pleas of this kind which need further evidence are not allowed to be raised in appeals under Art. 136 of the Constitution.
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part of the premises is used by respondent 1 for his professional purpose, and they have also found that this has been done obviously with the consent of the landlord. It is unnecessary to refer to the evidence on which this finding is based. Even the trial Court was apparently inclined to take the same view about this evidence but it did not fully appreciate the effect of the explanation; otherwise it would have realised that the professional use of a substantial part of the premises with the consent of the appellant clearly takes the case outside S. 13(1)(e).In other words, where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord the landlord would not be entitled to eject the tenant even if he groves that he needs the premises bona fide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone. This position cannot be seriouslyis suggested that any other use which is specified by S. 2(g) would not include a combination of residence with commercial or professional purposes. The other use there referred to may be use for charity or something of that kind which is different from use as residence or commercial use.In our opinion this argument is not well founded. The three kinds of user to which the definition refers are residence commerce and any other purpose which necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Solicitor-General. As soon as it is shown that the premises have been let both for the use of residence and for commercial purposes it does not follow that the premises cease to be premises under S. 2(g); they continue to be premises under the last clause of S. 2(g). This position is wholly consistent with the division of the premises made with reference to their user in paragraphs 3, 4 and 5 of Part A in the Second Schedule to the Act.Therefore, in our opinion, the argument urged by the learned Solicitor-General on the construction of S. 2(g) cannot be sustained. It will be recalled that the present suit has been filed by the appellant himself praying for the respondents ejectment under the provisions of the Act, and so the argument that the Act does not apply to the premises in question can be justly characterised as an argument ofour opinion even this argument is fallacious. Section 13(1)(h) applies to tenancies which are created for essential purposes, and it provides that in the case of such tenancies even if the landlord may not be able to prove his case under S. 13(1) (e) be would nevertheless be entitled to, eject the tenant once it is shown that the tenant has acquired another suitable residence. The requirement is that the tenant must have suitable residence. Both words of the requirement are significant; what he has acquired must be residence, that is to say the premises which ejectment is sought are used not only for residence but also for profession how could S. 13(1)(h) come into operation? One of the purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which are suitable for residence alone, and it is the suitability for residence along which is postulated by S. 13(1)(h).Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can by successfully terminated merely be showing that the tenant has acquired a suitable residence. That is the view taken by the High Court and we see no reason to differ from the conclusion of the Highis true that in 1941 and onwards respondent 1 has successfully urged that the tenancy was for residence, and in consequence has secured the extension of tenancy under cl. 11A of the New Delhi House Rent Control Order, 1939, issued under R. 81(2)(bb) of the Defence of India Rules. The statements made by respondent 1 in that behalf indicate that he exercised his option of obtaining extension of the lease on the ground that the premises were let out to him for residence.On the other hand the conduct of the appellant himself is also inconsistent with the stand taken by him in the present proceedings. In 1942 when he demanded an increased rent from respondent 1 he made out a case which is inconsistent with his present story that the premises were let out to respondent 1 only for residence. The case then made out by him appears to be that the tenancy fell under paragraph 4 of Part A in the Second Schedule to the Act and that would mean that the premises had not been let only for residence. Indeed the conduct of both the parties has been actuated solely by considerations of expediency and self-interest in this case, and so it would prima facie be idle for the appellant to contend that respondent 1 should not be allowed to approbate and reprobate. But, apart from this fact, it is obvious that the appellant cannot be allowed to raise this contention, for the first time before this Court. The plea sought to be raised can be decided only after relevant evidence is adduced by the parties, and since this plea has not been raised by the appellant at the proper stage respondent 1 has had no opportunity to meet the plea and that itself precludes the appellant from contending that though the lease may not be one for residence alone respondent 1 should not be permitted to urge that it is not for residence but for residence and profession. It is the settled practice of this Court that new pleas of this kind which need further evidence are not allowed to be raised in appeals under Art. 136 of the Constitution.
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Southern Petrochemicals Industries Corporation Limited Vs. Administrator of Specified Undertaking of Unit Trust of India & Others | substance and has no merit. The provisions of section (2) of Section 4A can only be invoked in cases where a financial institution is not specifically specified under sub section (1) of Section 4A of the Companies Act 1 of 1956. In the light of the view we have taken that sub clause (v) of sub section (1) of Section 4A of the Companies Act 1 of 1956 stood amended by substituting the name of Unit Trust of India with that of Respondent Nos.1 and 2 herein, we are of the opinion that the said respondent being specifically specified as a financial institution under the said sub section (1), the question of issuing notification under sub section (2) of Section 4A cannot and does not arise. Sub section (2) gives a power to the Central Government to declare any entity as financial institutions which are not specified under sub-section (1) of Section 4A of the Companies Act 1 of 1956, and therefore, in the present case, the sub-section (2) of Section 4A has no application whatsoever. We thus reject the submission of the learned counsel for the petitioner in that behalf.16. Mr. Aney, the learned counsel for the petitioner has thereafter relied upon a judgment of the Division Bench of this Court in the case of Krishna Filaments Ltd. vs. Industrial Development Bank of India & Ors. reported in 2004 (2) Bombay Cases Reporter, 16, particularly paragraph 24 of the said judgment and contended that the respondent Nos.1 and 2 even if they are financial institution they are not entitled to maintain the original application before the Debt Recovery Tribunal. Before we consider the aforesaid submission, it would be proper to reproduce paragraph 24 of the said judgment of the Division Bench of this Court in the case of Krishna Filaments Ltd. v. Industrial Development Bank of India& Ors, (supra) which reads as under:-"24. On the other hand, it was pointed out that the fact remains that the amount contributed to the debentures was that of the subscribers and the debenture trustees had an obligation to act faithfully. It was submitted that this arrangement was made principally to secure the capital required by the company. At the same time, it was not required to face a litigation by each and every debentures holders. On the other hand, the debenture holders were given a protective mechanism by mortgaging the property of the company to the financial institutions and giving them the power, impliedly coupled therewith a duty to act in the interest of the debenture holders. In the present case, the predominant debenture holders were either banks or financial institutions or mutal funds or insurance companies. The respondent No.1 was acting on their behalf. Having considered the kind of arrangement that is created, it is very clear that though certain rights and responsibilities are given to the debenture trustees, that does not mean that they become the owners of the amounts contributed. They continue to remain trustees and the amounts contributed continue to be the claims of the contributors. There can be no doubt that the suit is not for recovery of any debt due to a financial institutions. An emphasis was led on behalf of the appellant on the aspect as to who has lodged the claim in the suit and on a part of the definition of "debt" under section 2(g) of the RDB Act which sates that it is liability claimed by a bank or a financial institution. It was also emphasized that the transaction has arisen during the course of a business activity which is undertaken under a law for the time being in force. As far as this aspect is concerned, there can be no dispute about this. However, if the phrase "any liability claimed by a bank or a financial institution." Is read to mean any claim by such a body even for others, then in that case all sorts of claim by such bodies would get covered under this definition. It was therefore rightly emphasized on behalf of the respondent No.1 that under section 6(h) of Banking Regulation Act undertaking and executing trusts and section 6(1) thereof undertaking and administration of estates as executor, trustees or otherwise is a permissible business for the banking companies. Thus if a bank is collecting rents as a trustee of if it is an executor under a Will and it would be collecting the amount due to the estate, such claims would also come under the definition of a "debt".17. In our view the said judgment has no application to the facts of the present case. In the said judgment Industrial Development Bank of India was admittedly a public financial institution and there was no dispute as to the status of the IDBI as the financial institution. The dispute in the said case was that when the IDBI is performing a mere role of the debenture trustee holders whether it will be right to assign a role of financial institution when the application is made by it only as debenture trustees and whether such an application would lie under the provisions of Section 19 of the said DRT Act 1993. The claim by the Debenture Trustee holders is not of recovery of dues payable to the financial institution in their capacity as a financial institution and therefore Division Bench has in the aforesaid judgment held that an application by debenture trustees even if it is a financial institution would not lie in Debt Recovery Tribunal but they have to file a civil suit in civil Court. In the present case, the respondent Nos.1 and 2 are not suing the petitioner in their capacity as the debenture trustee holders but they are claming their amount towards the dues payable under the loan agreement and, therefore, the present application under section 19 of the DRT Act, 1993 is legal and maintainable.18. In the aforesaid view that we have taken, we do not find any merit in the present writ petition. | 0[ds]17. In our view the said judgment has no application to the facts of the present case. In the said judgment Industrial Development Bank of India was admittedly a public financial institution and there was no dispute as to the status of the IDBI as the financial institution. The dispute in the said case was that when the IDBI is performing a mere role of the debenture trustee holders whether it will be right to assign a role of financial institution when the application is made by it only as debenture trustees and whether such an application would lie under the provisions of Section 19 of the said DRT Act 1993. The claim by the Debenture Trustee holders is not of recovery of dues payable to the financial institution in their capacity as a financial institution and therefore Division Bench has in the aforesaid judgment held that an application by debenture trustees even if it is a financial institution would not lie in Debt Recovery Tribunal but they have to file a civil suit in civil Court. In the present case, the respondent Nos.1 and 2 are not suing the petitioner in their capacity as the debenture trustee holders but they are claming their amount towards the dues payable under the loan agreement and, therefore, the present application under section 19 of the DRT Act, 1993 is legal and maintainable.18. In the aforesaid view that we have taken, we do not find any merit in the present writ petition. | 0 | 3,896 | 265 | ### 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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substance and has no merit. The provisions of section (2) of Section 4A can only be invoked in cases where a financial institution is not specifically specified under sub section (1) of Section 4A of the Companies Act 1 of 1956. In the light of the view we have taken that sub clause (v) of sub section (1) of Section 4A of the Companies Act 1 of 1956 stood amended by substituting the name of Unit Trust of India with that of Respondent Nos.1 and 2 herein, we are of the opinion that the said respondent being specifically specified as a financial institution under the said sub section (1), the question of issuing notification under sub section (2) of Section 4A cannot and does not arise. Sub section (2) gives a power to the Central Government to declare any entity as financial institutions which are not specified under sub-section (1) of Section 4A of the Companies Act 1 of 1956, and therefore, in the present case, the sub-section (2) of Section 4A has no application whatsoever. We thus reject the submission of the learned counsel for the petitioner in that behalf.16. Mr. Aney, the learned counsel for the petitioner has thereafter relied upon a judgment of the Division Bench of this Court in the case of Krishna Filaments Ltd. vs. Industrial Development Bank of India & Ors. reported in 2004 (2) Bombay Cases Reporter, 16, particularly paragraph 24 of the said judgment and contended that the respondent Nos.1 and 2 even if they are financial institution they are not entitled to maintain the original application before the Debt Recovery Tribunal. Before we consider the aforesaid submission, it would be proper to reproduce paragraph 24 of the said judgment of the Division Bench of this Court in the case of Krishna Filaments Ltd. v. Industrial Development Bank of India& Ors, (supra) which reads as under:-"24. On the other hand, it was pointed out that the fact remains that the amount contributed to the debentures was that of the subscribers and the debenture trustees had an obligation to act faithfully. It was submitted that this arrangement was made principally to secure the capital required by the company. At the same time, it was not required to face a litigation by each and every debentures holders. On the other hand, the debenture holders were given a protective mechanism by mortgaging the property of the company to the financial institutions and giving them the power, impliedly coupled therewith a duty to act in the interest of the debenture holders. In the present case, the predominant debenture holders were either banks or financial institutions or mutal funds or insurance companies. The respondent No.1 was acting on their behalf. Having considered the kind of arrangement that is created, it is very clear that though certain rights and responsibilities are given to the debenture trustees, that does not mean that they become the owners of the amounts contributed. They continue to remain trustees and the amounts contributed continue to be the claims of the contributors. There can be no doubt that the suit is not for recovery of any debt due to a financial institutions. An emphasis was led on behalf of the appellant on the aspect as to who has lodged the claim in the suit and on a part of the definition of "debt" under section 2(g) of the RDB Act which sates that it is liability claimed by a bank or a financial institution. It was also emphasized that the transaction has arisen during the course of a business activity which is undertaken under a law for the time being in force. As far as this aspect is concerned, there can be no dispute about this. However, if the phrase "any liability claimed by a bank or a financial institution." Is read to mean any claim by such a body even for others, then in that case all sorts of claim by such bodies would get covered under this definition. It was therefore rightly emphasized on behalf of the respondent No.1 that under section 6(h) of Banking Regulation Act undertaking and executing trusts and section 6(1) thereof undertaking and administration of estates as executor, trustees or otherwise is a permissible business for the banking companies. Thus if a bank is collecting rents as a trustee of if it is an executor under a Will and it would be collecting the amount due to the estate, such claims would also come under the definition of a "debt".17. In our view the said judgment has no application to the facts of the present case. In the said judgment Industrial Development Bank of India was admittedly a public financial institution and there was no dispute as to the status of the IDBI as the financial institution. The dispute in the said case was that when the IDBI is performing a mere role of the debenture trustee holders whether it will be right to assign a role of financial institution when the application is made by it only as debenture trustees and whether such an application would lie under the provisions of Section 19 of the said DRT Act 1993. The claim by the Debenture Trustee holders is not of recovery of dues payable to the financial institution in their capacity as a financial institution and therefore Division Bench has in the aforesaid judgment held that an application by debenture trustees even if it is a financial institution would not lie in Debt Recovery Tribunal but they have to file a civil suit in civil Court. In the present case, the respondent Nos.1 and 2 are not suing the petitioner in their capacity as the debenture trustee holders but they are claming their amount towards the dues payable under the loan agreement and, therefore, the present application under section 19 of the DRT Act, 1993 is legal and maintainable.18. In the aforesaid view that we have taken, we do not find any merit in the present writ petition.
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17. In our view the said judgment has no application to the facts of the present case. In the said judgment Industrial Development Bank of India was admittedly a public financial institution and there was no dispute as to the status of the IDBI as the financial institution. The dispute in the said case was that when the IDBI is performing a mere role of the debenture trustee holders whether it will be right to assign a role of financial institution when the application is made by it only as debenture trustees and whether such an application would lie under the provisions of Section 19 of the said DRT Act 1993. The claim by the Debenture Trustee holders is not of recovery of dues payable to the financial institution in their capacity as a financial institution and therefore Division Bench has in the aforesaid judgment held that an application by debenture trustees even if it is a financial institution would not lie in Debt Recovery Tribunal but they have to file a civil suit in civil Court. In the present case, the respondent Nos.1 and 2 are not suing the petitioner in their capacity as the debenture trustee holders but they are claming their amount towards the dues payable under the loan agreement and, therefore, the present application under section 19 of the DRT Act, 1993 is legal and maintainable.18. In the aforesaid view that we have taken, we do not find any merit in the present writ petition.
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Modi Spinning and Weaving Mills Vs. Virendra and Others | 1. Vide order dated 23-2-1990, a two-Judge Bench of this Court referred this appeal to be heard and disposed of by a three-Judge Bench because of an apparent conflict in some decisions of this Court with regard to the competence of a company to file appeal, or to maintain a petition of appeal, for whose benefit, the land may have been acquired under the provisions of the Land Acquisition Act, 1894. Added thereto was the question of the impact of the Land Acquisition (Amendment) Act, 1984 whereunder enhanced rate of solatium was grantable as also enhanced rate of interest 2. The appellant before us is M/s. Modi Spinning & Weaving Mills Co. Ltd. The land involved in this litigation was acquired for its purposes. Notification under Section 4 of the Act was issued on 20-7-1965. At that time, by means of the U.P. Act 22 of 1954, Section 23(2) of the Act stood omitted with effect from 19-11-1954 as a result of which the State was not obliged to pay any solatium to the owners whose land was involved in acquisition. Notification under Section 6 was issued on 18-11-1965. On 14-12-1965, possession of the land was taken. The award came later on 14-7-1967. The land acquisition references were decided on 29-9-1970. First appeals filed by the landowners in the Allahabad High Court in 1974 were decided on 12-9-1985. The High Court took into account a twofold change in law. Firstly, it took cognizance of the reinsertion of Section 23(2) in the Act on 31-7-1972 whereby solatium at the rate of 15 per cent became payable on lands acquired. Secondly, the enhanced rate of solatium being at the rate of 30 per cent and enhanced rate of interest being at the rate of 9 per cent was taken into account having been brought under the provisions of the Land Acquisition (Amendment) Act, 1984. Solatium and interest having been awarded in this manner activated the appellant-Company to move this Court by special leave 3. The question of law referred stands answered by a Constitution Bench of this Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi. In para 24 of the Report, the Bench has summed up their conclusions. Conclusions 6 to 10 are important for our purposes. They are quoted below : (SCC p. 345) "6. The local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the court 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too 10. The matters which stand finally concluded will, however, not be reopened." * 4. An objection has been raised on behalf of the respondent - the affected landowners, that the appeal by the Company (M/s. Modi Spinning and Weaving Mills Co. Ltd.) is incompetent for it is not an aggrieved party since it had on 8-11-1968 transferred the acquired land to M/s. Modipon Ltd. and the latter Company was not a party to any proceedings in the courts below or even here. Secondly, it has been urged that as required by the principles laid down in the afore-mentioned Constitution Bench decision, the Company could only file an appeal against the order of the High Court after obtaining specific leave for the purpose in this Court. It is maintained that the grant of special leave would not be the leave of the kind as obtainable in the 7th conclusion arrived at by the Constitution Bench 5. We have examined both the objections carefully and have also put into play the equities of the case. The appellant-Company passed on the bargain to Modipon Ltd. way back on 8-11-1968. M/s. Modipon Ltd. is assumed to have paid every penny of the price settled. We cannot assume, in these circumstances, that the litigation going on between the appellant-Company and the State on the one side and the landowners on the other had not been taken into account towards settlement of the price. Additionally, no specific leave in terms of Conclusion 7 has been taken from us focussing the issue. Besides, we can take judicial notice of the fact that prices in real estate had started soaring in the days when the acquisition took place and have remained soared in the following two decades. Seeing to the injustice on account of non-payment of solatium and higher rate of interest, the U.P. State Legislature had itself stepped in on 31-7-1972 to reinsert Section 23(2) of the Land Acquisition Act, 1894 as it originally stood. The totality of the circumstances persuades us that we should not permit the Company to challenge the impugned order of the High Court. | 0[ds]5. We have examined both the objections carefully and have also put into play the equities of the case. They passed on the bargain to Modipon Ltd. way back on. M/s. Modipon Ltd. is assumed to have paid every penny of the price settled. We cannot assume, in these circumstances, that the litigation going on between they and the State on the one side and the landowners on the other had not been taken into account towards settlement of the price. Additionally, no specific leave in terms of Conclusion 7 has been taken from us focussing the issue. Besides, we can take judicial notice of the fact that prices in real estate had started soaring in the days when the acquisition took place and have remained soared in the following two decades. Seeing to the injustice on account oft of solatium and higher rate of interest, the U.P. State Legislature had itself stepped in on2 to reinsert Section 23(2) of the Land Acquisition Act, 1894 as it originally stood. The totality of the circumstances persuades us that we should not permit the Company to challenge the impugned order of the High Court. | 0 | 1,026 | 217 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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1. Vide order dated 23-2-1990, a two-Judge Bench of this Court referred this appeal to be heard and disposed of by a three-Judge Bench because of an apparent conflict in some decisions of this Court with regard to the competence of a company to file appeal, or to maintain a petition of appeal, for whose benefit, the land may have been acquired under the provisions of the Land Acquisition Act, 1894. Added thereto was the question of the impact of the Land Acquisition (Amendment) Act, 1984 whereunder enhanced rate of solatium was grantable as also enhanced rate of interest 2. The appellant before us is M/s. Modi Spinning & Weaving Mills Co. Ltd. The land involved in this litigation was acquired for its purposes. Notification under Section 4 of the Act was issued on 20-7-1965. At that time, by means of the U.P. Act 22 of 1954, Section 23(2) of the Act stood omitted with effect from 19-11-1954 as a result of which the State was not obliged to pay any solatium to the owners whose land was involved in acquisition. Notification under Section 6 was issued on 18-11-1965. On 14-12-1965, possession of the land was taken. The award came later on 14-7-1967. The land acquisition references were decided on 29-9-1970. First appeals filed by the landowners in the Allahabad High Court in 1974 were decided on 12-9-1985. The High Court took into account a twofold change in law. Firstly, it took cognizance of the reinsertion of Section 23(2) in the Act on 31-7-1972 whereby solatium at the rate of 15 per cent became payable on lands acquired. Secondly, the enhanced rate of solatium being at the rate of 30 per cent and enhanced rate of interest being at the rate of 9 per cent was taken into account having been brought under the provisions of the Land Acquisition (Amendment) Act, 1984. Solatium and interest having been awarded in this manner activated the appellant-Company to move this Court by special leave 3. The question of law referred stands answered by a Constitution Bench of this Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi. In para 24 of the Report, the Bench has summed up their conclusions. Conclusions 6 to 10 are important for our purposes. They are quoted below : (SCC p. 345) "6. The local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the court 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too 10. The matters which stand finally concluded will, however, not be reopened." * 4. An objection has been raised on behalf of the respondent - the affected landowners, that the appeal by the Company (M/s. Modi Spinning and Weaving Mills Co. Ltd.) is incompetent for it is not an aggrieved party since it had on 8-11-1968 transferred the acquired land to M/s. Modipon Ltd. and the latter Company was not a party to any proceedings in the courts below or even here. Secondly, it has been urged that as required by the principles laid down in the afore-mentioned Constitution Bench decision, the Company could only file an appeal against the order of the High Court after obtaining specific leave for the purpose in this Court. It is maintained that the grant of special leave would not be the leave of the kind as obtainable in the 7th conclusion arrived at by the Constitution Bench 5. We have examined both the objections carefully and have also put into play the equities of the case. The appellant-Company passed on the bargain to Modipon Ltd. way back on 8-11-1968. M/s. Modipon Ltd. is assumed to have paid every penny of the price settled. We cannot assume, in these circumstances, that the litigation going on between the appellant-Company and the State on the one side and the landowners on the other had not been taken into account towards settlement of the price. Additionally, no specific leave in terms of Conclusion 7 has been taken from us focussing the issue. Besides, we can take judicial notice of the fact that prices in real estate had started soaring in the days when the acquisition took place and have remained soared in the following two decades. Seeing to the injustice on account of non-payment of solatium and higher rate of interest, the U.P. State Legislature had itself stepped in on 31-7-1972 to reinsert Section 23(2) of the Land Acquisition Act, 1894 as it originally stood. The totality of the circumstances persuades us that we should not permit the Company to challenge the impugned order of the High Court.
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5. We have examined both the objections carefully and have also put into play the equities of the case. They passed on the bargain to Modipon Ltd. way back on. M/s. Modipon Ltd. is assumed to have paid every penny of the price settled. We cannot assume, in these circumstances, that the litigation going on between they and the State on the one side and the landowners on the other had not been taken into account towards settlement of the price. Additionally, no specific leave in terms of Conclusion 7 has been taken from us focussing the issue. Besides, we can take judicial notice of the fact that prices in real estate had started soaring in the days when the acquisition took place and have remained soared in the following two decades. Seeing to the injustice on account oft of solatium and higher rate of interest, the U.P. State Legislature had itself stepped in on2 to reinsert Section 23(2) of the Land Acquisition Act, 1894 as it originally stood. The totality of the circumstances persuades us that we should not permit the Company to challenge the impugned order of the High Court.
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Gyasi Ram Vs. Brij Bhushan Das And Ors | date of the deposit and as there was a shortage of Rs. 88-1-0, the entire amount had not been deposited and in consequence no final decree could be passed in favour of the appellant. In the result the High Court set aside the order of the Additional District Judge and restored the order of the trial Court passing a decree for foreclosure in favour of the respondent. Thereupon the appellant obtained special leave from this Court, and that is how the matter has come before us. 5. The only question raised on behalf of the appellant is that he had deposited the amount which was strictly due under the preliminary decree and something more. The shortage was only on account of the sum due as a result of the stay order passed by the High Court by which he was required to pay six per cent per annum more as interest for the duration of the stay. It is urged that this amount could not be taken into account in considering the question whether the appellant had deposited the entire amount due under the preliminary decree. We are of opinion that there is force in this contention and the appeal must succeed. Under O. XXXIV, R. 8 (1) the mortgagor can deposit all amounts due under O. XXXIV, R. 7 (1) before the final decree debarring him from all rights to redeem is passed. Order XXXIV, R. 7 (1) lays down what a preliminary decree should contain and we are in the present case concerned with Cls. (b) and (c) thereof. In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provided for three per cent per annum interest on a certain sum from that date and had directed as required by Cl. (c) of O. XXXIV, R. 7 (1) that if the mortgagor-plaintiff paid in Court the amount found before a certain date a final decree in his favour could be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the defendant mortagee would be passed. Now under O. XXXIV, R. 7 (1) (c) (i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". It is not in dispute, as we have already indicated that the appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree. Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per annum for the period of stay. The question is whether this amount can be said to be within the words "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". We are of opinion that this extra amount which was to be paid on account of the undertaking of the appellant for the purpose of stay cannot come within the words "in respect of subsequent costs, charges, expenses and interests". It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking, it was not made a part of the amount due under the preliminary decree. Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests. Besides such subsequent costs charges, expenses and interests have to be adjudged before the mortgagor is asked to deposit the amount and it is not in dispute that no adjudgment as to any subsequent costs, charges, expenses and interests was made. So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the terms of that decree, and he had to pay nothing on account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these. Nor as we have said already can the amount due as extra interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O. XXXIV, R. 7 (1) (c) (i) and (ii). 6. It is, however, urged that on this view there would be no way to enforce the appellants undertaking to pay extra interest for the period of stay. We do not think so, It would in our opinion be in order for the Court to insist before it passed the final decree that the appellant honours his undertaking. But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be "subsequent costs, charges, expenses and interests". We may add that the shortage in question was made good by the appellant soon after the order of the Additional District Judge and long before the judgment of the High Court. As we have come to the conclusion that this amount due on account of the undertaking given by the appellant in the matter of stay cannot be taken to be part of the amount due under the preliminary decree, it must be held that the appellant was entitled to a final decree in his favour. | 1[ds]We are of opinion that there is force in this contention and the appeal must succeed. Under O. XXXIV, R. 8 (1) the mortgagor can deposit all amounts due under O. XXXIV, R. 7 (1) before the final decree debarring him from all rights to redeem is passed. Order XXXIV, R. 7 (1) lays down what a preliminary decree should contain and we are in the present case concerned with Cls. (b) and (c) thereof. In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provided for three per cent per annum interest on a certain sum from that date and had directed as required by Cl. (c) of O. XXXIV, R. 7 (1) that if the mortgagor-plaintiff paid in Court the amount found before a certain date a final decree in his favour could be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the defendant mortagee would be passed. Now under O. XXXIV, R. 7 (1) (c) (i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". It is not in dispute, as we have already indicated that the appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree. Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per annum for the period of stayWe are of opinion that this extra amount which was to be paid on account of the undertaking of the appellant for the purpose of stay cannot come within the words "in respect of subsequent costs, charges, expenses and interests". It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking, it was not made a part of the amount due under the preliminary decree. Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests. Besides such subsequent costs charges, expenses and interests have to be adjudged before the mortgagor is asked to deposit the amount and it is not in dispute that no adjudgment as to any subsequent costs, charges, expenses and interests was made. So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the terms of that decree, and he had to pay nothing on account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these. Nor as we have said already can the amount due as extra interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O. XXXIV, R. 7 (1) (c) (i) and (ii)We do not think so, It would in our opinion be in order for the Court to insist before it passed the final decree that the appellant honours his undertaking. But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be "subsequent costs, charges, expenses and interests". We may add that the shortage in question was made good by the appellant soon after the order of the Additional District Judge and long before the judgment of the High Court. As we have come to the conclusion that this amount due on account of the undertaking given by the appellant in the matter of stay cannot be taken to be part of the amount due under the preliminary decree, it must be held that the appellant was entitled to a final decree in his favour. | 1 | 2,142 | 847 | ### Instruction:
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date of the deposit and as there was a shortage of Rs. 88-1-0, the entire amount had not been deposited and in consequence no final decree could be passed in favour of the appellant. In the result the High Court set aside the order of the Additional District Judge and restored the order of the trial Court passing a decree for foreclosure in favour of the respondent. Thereupon the appellant obtained special leave from this Court, and that is how the matter has come before us. 5. The only question raised on behalf of the appellant is that he had deposited the amount which was strictly due under the preliminary decree and something more. The shortage was only on account of the sum due as a result of the stay order passed by the High Court by which he was required to pay six per cent per annum more as interest for the duration of the stay. It is urged that this amount could not be taken into account in considering the question whether the appellant had deposited the entire amount due under the preliminary decree. We are of opinion that there is force in this contention and the appeal must succeed. Under O. XXXIV, R. 8 (1) the mortgagor can deposit all amounts due under O. XXXIV, R. 7 (1) before the final decree debarring him from all rights to redeem is passed. Order XXXIV, R. 7 (1) lays down what a preliminary decree should contain and we are in the present case concerned with Cls. (b) and (c) thereof. In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provided for three per cent per annum interest on a certain sum from that date and had directed as required by Cl. (c) of O. XXXIV, R. 7 (1) that if the mortgagor-plaintiff paid in Court the amount found before a certain date a final decree in his favour could be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the defendant mortagee would be passed. Now under O. XXXIV, R. 7 (1) (c) (i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". It is not in dispute, as we have already indicated that the appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree. Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per annum for the period of stay. The question is whether this amount can be said to be within the words "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". We are of opinion that this extra amount which was to be paid on account of the undertaking of the appellant for the purpose of stay cannot come within the words "in respect of subsequent costs, charges, expenses and interests". It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking, it was not made a part of the amount due under the preliminary decree. Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests. Besides such subsequent costs charges, expenses and interests have to be adjudged before the mortgagor is asked to deposit the amount and it is not in dispute that no adjudgment as to any subsequent costs, charges, expenses and interests was made. So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the terms of that decree, and he had to pay nothing on account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these. Nor as we have said already can the amount due as extra interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O. XXXIV, R. 7 (1) (c) (i) and (ii). 6. It is, however, urged that on this view there would be no way to enforce the appellants undertaking to pay extra interest for the period of stay. We do not think so, It would in our opinion be in order for the Court to insist before it passed the final decree that the appellant honours his undertaking. But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be "subsequent costs, charges, expenses and interests". We may add that the shortage in question was made good by the appellant soon after the order of the Additional District Judge and long before the judgment of the High Court. As we have come to the conclusion that this amount due on account of the undertaking given by the appellant in the matter of stay cannot be taken to be part of the amount due under the preliminary decree, it must be held that the appellant was entitled to a final decree in his favour.
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We are of opinion that there is force in this contention and the appeal must succeed. Under O. XXXIV, R. 8 (1) the mortgagor can deposit all amounts due under O. XXXIV, R. 7 (1) before the final decree debarring him from all rights to redeem is passed. Order XXXIV, R. 7 (1) lays down what a preliminary decree should contain and we are in the present case concerned with Cls. (b) and (c) thereof. In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provided for three per cent per annum interest on a certain sum from that date and had directed as required by Cl. (c) of O. XXXIV, R. 7 (1) that if the mortgagor-plaintiff paid in Court the amount found before a certain date a final decree in his favour could be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the defendant mortagee would be passed. Now under O. XXXIV, R. 7 (1) (c) (i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also "the amount adjudged due in respect of subsequent costs, charges, expenses and interests". It is not in dispute, as we have already indicated that the appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree. Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per annum for the period of stayWe are of opinion that this extra amount which was to be paid on account of the undertaking of the appellant for the purpose of stay cannot come within the words "in respect of subsequent costs, charges, expenses and interests". It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking, it was not made a part of the amount due under the preliminary decree. Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests. Besides such subsequent costs charges, expenses and interests have to be adjudged before the mortgagor is asked to deposit the amount and it is not in dispute that no adjudgment as to any subsequent costs, charges, expenses and interests was made. So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the terms of that decree, and he had to pay nothing on account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these. Nor as we have said already can the amount due as extra interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O. XXXIV, R. 7 (1) (c) (i) and (ii)We do not think so, It would in our opinion be in order for the Court to insist before it passed the final decree that the appellant honours his undertaking. But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be "subsequent costs, charges, expenses and interests". We may add that the shortage in question was made good by the appellant soon after the order of the Additional District Judge and long before the judgment of the High Court. As we have come to the conclusion that this amount due on account of the undertaking given by the appellant in the matter of stay cannot be taken to be part of the amount due under the preliminary decree, it must be held that the appellant was entitled to a final decree in his favour.
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P. Lal Vs. Union of India and Others | within the notice period. He submitted that the notice period was only for 3 months. He submitted that the effective date within which the request for voluntary retirement could be withdrawn was only 3 months. He submitted that in any event by Order dated 2nd March, 1995, the Government of India had accepted the request of Respondent No. 3 and permitted him to retire from service. He submitted that on such acceptance the relationship of master and servant came to an end. He submitted that thereafter Respondent No. 3 could not be permitted to withdraw his request for voluntary retirement. He submitted that the case that Respondent No. 3 had been sent abroad and/or asked to work for a foreign firm cannot be believed. 25. We have considered the submissions of both the parties. As has been set out, in Shambhu Muraris case and Bank of Indias case, an employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. The request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire voluntarily with immediate effect. He had also deposited Rs. 30, 870/- in lieu of three months notice. Thus so far as Respondent No. 3 was concerned the effective date was 5th May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules, 1958 provides that a notice of retirement had to be accepted by the Government of India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect from May 1993. The moment Government of India accepted the notice the retirement became effective. The relationship of master and servant came to an end. We are unable to accept the submission that the relationship of master and servant did not terminate till the acceptance was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab & Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an order. 26. That the relationship of master and servant had been severed is clear from the affidavit filed by Respondent No. 3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No. 3 no posting order had been issued to him. According to Respondent No. 3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. We are unable to accept Mr. Jethmalanis submission that, Respondent No. 3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperation. 27. In view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No. 3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/or terminated, by this back door method, Respondent No. 3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored. 28. Mr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions. 29. | 1[ds]We are unable to accept the submissions of Mr. Jethmalani. As has been pointed out hereinabove, against the portion of the impugned judgment which held that the Appellant had locus and that the Central Administrative Tribunal had jurisdiction, Respondent No. 3 had filed a Special Leave Petition. That has been dismissed by this Court on 10th December, 2000. It is therefore not open to Respondent No. 3 to again raise these contentions. These findings in the impugned judgment have become final as against Respondent No. 3Thus Appellant can legitimately point out that Respondent No. 3 has ceased to be in service. Thus Appellants claim is not based on mere expectations or accidental windfall. The Appellant is a person aggrieved and has locus. Even otherwise, as has been explained in great detail, both by the Tribunal as well as the High Court, the Tribunal had jurisdiction to entertain the application filed by the Appellant. Merely because Respondent No. 3 made a statement before the High Court that he would not claim seniority would not be a ground for holding that the Tribunal had no jurisdiction. A statement made in a Writ Petition before the High Court would not deprive the Appellant of locus and/or the Tribunal of jurisdictionIf any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab & Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an orderThat the relationship of master and servant had been severed is clear from the affidavit filed by Respondent No. 3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No. 3 no posting order had been issued to him. According to Respondent No. 3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. We are unable to accept Mr. Jethmalanis submission that, Respondent No. 3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperationIn view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No. 3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/or terminated, by this back door method, Respondent No. 3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restoredMr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions. | 1 | 7,512 | 903 | ### Instruction:
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within the notice period. He submitted that the notice period was only for 3 months. He submitted that the effective date within which the request for voluntary retirement could be withdrawn was only 3 months. He submitted that in any event by Order dated 2nd March, 1995, the Government of India had accepted the request of Respondent No. 3 and permitted him to retire from service. He submitted that on such acceptance the relationship of master and servant came to an end. He submitted that thereafter Respondent No. 3 could not be permitted to withdraw his request for voluntary retirement. He submitted that the case that Respondent No. 3 had been sent abroad and/or asked to work for a foreign firm cannot be believed. 25. We have considered the submissions of both the parties. As has been set out, in Shambhu Muraris case and Bank of Indias case, an employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. The request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire voluntarily with immediate effect. He had also deposited Rs. 30, 870/- in lieu of three months notice. Thus so far as Respondent No. 3 was concerned the effective date was 5th May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules, 1958 provides that a notice of retirement had to be accepted by the Government of India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect from May 1993. The moment Government of India accepted the notice the retirement became effective. The relationship of master and servant came to an end. We are unable to accept the submission that the relationship of master and servant did not terminate till the acceptance was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab & Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an order. 26. That the relationship of master and servant had been severed is clear from the affidavit filed by Respondent No. 3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No. 3 no posting order had been issued to him. According to Respondent No. 3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. We are unable to accept Mr. Jethmalanis submission that, Respondent No. 3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperation. 27. In view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No. 3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/or terminated, by this back door method, Respondent No. 3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored. 28. Mr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions. 29.
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We are unable to accept the submissions of Mr. Jethmalani. As has been pointed out hereinabove, against the portion of the impugned judgment which held that the Appellant had locus and that the Central Administrative Tribunal had jurisdiction, Respondent No. 3 had filed a Special Leave Petition. That has been dismissed by this Court on 10th December, 2000. It is therefore not open to Respondent No. 3 to again raise these contentions. These findings in the impugned judgment have become final as against Respondent No. 3Thus Appellant can legitimately point out that Respondent No. 3 has ceased to be in service. Thus Appellants claim is not based on mere expectations or accidental windfall. The Appellant is a person aggrieved and has locus. Even otherwise, as has been explained in great detail, both by the Tribunal as well as the High Court, the Tribunal had jurisdiction to entertain the application filed by the Appellant. Merely because Respondent No. 3 made a statement before the High Court that he would not claim seniority would not be a ground for holding that the Tribunal had no jurisdiction. A statement made in a Writ Petition before the High Court would not deprive the Appellant of locus and/or the Tribunal of jurisdictionIf any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab & Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an orderThat the relationship of master and servant had been severed is clear from the affidavit filed by Respondent No. 3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No. 3 no posting order had been issued to him. According to Respondent No. 3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. We are unable to accept Mr. Jethmalanis submission that, Respondent No. 3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperationIn view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No. 3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/or terminated, by this back door method, Respondent No. 3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restoredMr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions.
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State Of M.P. & Ors Vs. M/S. Chhotabhai Jethabhai Patel & Co. & | agents in different units for sale and the State was bound to purchase every single lot of tendu leaves unless the same could be said to be unfit for the manufacture of bids. 9. Prima facie trade in tendu leaves as was held by this Court in Vrajlal Manilal v. State of Madh Pra, (1970) 1 SCR 400 at p. 408 = (AIR 1970 SC 129 ) would consist of dealing in those leaves i.e. their purchase and sale but "transport of the leaves once purcesed or sold would not prima facie be an organic or integral part or dealing in those leaves." It was further held in that case:"...a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are prchased to his ware-house, then to the branches and to the sattedars cannot up to that stage be regarded as unreasonable in the light of the object of the Act, the economic condition prevailing in the State and the mischief which it seeks to cure. At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of comparatively small quantities of these leaves would not only be unreasonable but frustrating." In that case there was no question of import of any tendu leaves from outside the State or the issue of any permits in that regard. What was objected to was the insistence upon transport permits for the leaves to be distributed by the manufacturers to his innumerable sattedars and mazdoors under Section 5 of the Act. It was held that though the section "is couched in apparently wide language, the very object of the Act, as disclosed by its long title, contains inherent limitations against an absolute or as strictly regulated a ban as it would at frist reading of the section appear." Though the Court there up-held the provisions relating to the creation of the monopoly in the public interest in the matter of sale and purchase of tendu leaves, it was not disposed to uphold the restrictions on movement to the extent it was sought to be enforced by the State in that case. 10. In coming to the above conclusion the Court relied on the dictum in Akadasi Padhan v. State of Orissa (1963) Supp 2 SCR 691 = (AIR 1963 SC 1047 ):"A law relating to State monoploy cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not ----- the said expression should be construed to mean the law relating to the monopoly in this absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the later part of Article 19 (6) If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19 (6) In other words, the effect of the amendment made in Article 19 (6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19 (6) and would inevitably have to satisfy the test of the first part of Article 19 (6)." 11. It is settled law that where two construction of a legislative provision are possible one consistent with the constitutionality of the measure impugned and the other offending the same, the Court will lean towards the first if it be compatible with the object and purpose of the impugned Act, the mischief which it sought to prevent ascertaining from relevant factors its true scope and meaning. 12. It was in the light of this principle that the High Court observed :"If Section 5 of the Act or any of its provisions were to be construed as prohibiting the import of tendu leaves into the State or restricted within the State of imported leaves, then the provision would clearly be invalid as violative of Article 301 and 304 of the Constitution." 13. Without expressing our views on the subject we hold that the entire provisions of the Act and the rules are consistent with and aim at the State monoploy in the trade of tendu leaves in case of leaves grown or produced in the State and the legislature never intended that the monopoly should be operative even to the extent of banning import of tendu leaves from outside or stalling the tendu leaves once they found their way into the State from outside. The transport of tendu leaves purchased outside but consigned to places within the State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act. It stands to reason that manufacturers of bidis in the State of Madhya Pradesh would not think of importing tendu leaves from distant places like Bihar and Maharashtra if they could help it and it must be the exigencies of the situation which drives a manufacturer of bidis to such course of action. In any event, the Act ought not to be construed so as to ban import of tendu, leaves from outside the State or restrict their movement once they were within the State unless clear language was used in that behalf. If and when such express embargo is imposed, a question may arise as to whether it offends the different provisions of Part XIII of the Constitution. 14. | 0[ds]8. We find ourselves unable to accept the contentions put forward by counsel on behalf of the State. All the relevant provisions of the Act and the Rules referred to above show that the legislature intended that everybody growing leaves within the State should offer the same to it or its agents in different units for sale and the State was bound to purchase every single lot of tendu leaves unless the same could be said to be unfit for the manufacture of bids.Prima facie trade in tendu leaves as was held by this Court in Vrajlal Manilal v. State of Madh Pra, (1970) 1 SCR 400 at p. 408 = (AIR 1970 SC 129 ) would consist of dealing in those leaves i.e. their purchase and sale but "transport of the leaves once purcesed or sold would not prima facie be an organic or integral part or dealing in those leaves." It was further held in that case:"...a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are prchased to his ware-house, then to the branches and to the sattedars cannot up to that stage be regarded as unreasonable in the light of the object of the Act, the economic condition prevailing in the State and the mischief which it seeks to cure. At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of comparatively small quantities of these leaves would not only be unreasonable but frustrating."In that case there was no question of import of any tendu leaves from outside the State or the issue of any permits in that regard. What was objected to was the insistence upon transport permits for the leaves to be distributed by the manufacturers to his innumerable sattedars and mazdoors under Section 5 of the Act. It was held that though the section "is couched in apparently wide language, the very object of the Act, as disclosed by its long title, contains inherent limitations against an absolute or as strictly regulated a ban as it would at frist reading of the section appear." Though the Court there up-held the provisions relating to the creation of the monopoly in the public interest in the matter of sale and purchase of tendu leaves, it was not disposed to uphold the restrictions on movement to the extent it was sought to be enforced by the State in that caseWithout expressing our views on the subject we hold that the entire provisions of the Act and the rules are consistent with and aim at the State monoploy in the trade of tendu leaves in case of leaves grown or produced in the State and the legislature never intended that the monopoly should be operative even to the extent of banning import of tendu leaves from outside or stalling the tendu leaves once they found their way into the State from outside. The transport of tendu leaves purchased outside but consigned to places within the State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act. It stands to reason that manufacturers of bidis in the State of Madhya Pradesh would not think of importing tendu leaves from distant places like Bihar and Maharashtra if they could help it and it must be the exigencies of the situation which drives a manufacturer of bidis to such course of action. In any event, the Act ought not to be construed so as to ban import of tendu, leaves from outside the State or restrict their movement once they were within the State unless clear language was used in that behalf. If and when such express embargo is imposed, a question may arise as to whether it offends the different provisions of Part XIII of the Constitution | 0 | 2,657 | 693 | ### 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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agents in different units for sale and the State was bound to purchase every single lot of tendu leaves unless the same could be said to be unfit for the manufacture of bids. 9. Prima facie trade in tendu leaves as was held by this Court in Vrajlal Manilal v. State of Madh Pra, (1970) 1 SCR 400 at p. 408 = (AIR 1970 SC 129 ) would consist of dealing in those leaves i.e. their purchase and sale but "transport of the leaves once purcesed or sold would not prima facie be an organic or integral part or dealing in those leaves." It was further held in that case:"...a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are prchased to his ware-house, then to the branches and to the sattedars cannot up to that stage be regarded as unreasonable in the light of the object of the Act, the economic condition prevailing in the State and the mischief which it seeks to cure. At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of comparatively small quantities of these leaves would not only be unreasonable but frustrating." In that case there was no question of import of any tendu leaves from outside the State or the issue of any permits in that regard. What was objected to was the insistence upon transport permits for the leaves to be distributed by the manufacturers to his innumerable sattedars and mazdoors under Section 5 of the Act. It was held that though the section "is couched in apparently wide language, the very object of the Act, as disclosed by its long title, contains inherent limitations against an absolute or as strictly regulated a ban as it would at frist reading of the section appear." Though the Court there up-held the provisions relating to the creation of the monopoly in the public interest in the matter of sale and purchase of tendu leaves, it was not disposed to uphold the restrictions on movement to the extent it was sought to be enforced by the State in that case. 10. In coming to the above conclusion the Court relied on the dictum in Akadasi Padhan v. State of Orissa (1963) Supp 2 SCR 691 = (AIR 1963 SC 1047 ):"A law relating to State monoploy cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not ----- the said expression should be construed to mean the law relating to the monopoly in this absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the later part of Article 19 (6) If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19 (6) In other words, the effect of the amendment made in Article 19 (6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19 (6) and would inevitably have to satisfy the test of the first part of Article 19 (6)." 11. It is settled law that where two construction of a legislative provision are possible one consistent with the constitutionality of the measure impugned and the other offending the same, the Court will lean towards the first if it be compatible with the object and purpose of the impugned Act, the mischief which it sought to prevent ascertaining from relevant factors its true scope and meaning. 12. It was in the light of this principle that the High Court observed :"If Section 5 of the Act or any of its provisions were to be construed as prohibiting the import of tendu leaves into the State or restricted within the State of imported leaves, then the provision would clearly be invalid as violative of Article 301 and 304 of the Constitution." 13. Without expressing our views on the subject we hold that the entire provisions of the Act and the rules are consistent with and aim at the State monoploy in the trade of tendu leaves in case of leaves grown or produced in the State and the legislature never intended that the monopoly should be operative even to the extent of banning import of tendu leaves from outside or stalling the tendu leaves once they found their way into the State from outside. The transport of tendu leaves purchased outside but consigned to places within the State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act. It stands to reason that manufacturers of bidis in the State of Madhya Pradesh would not think of importing tendu leaves from distant places like Bihar and Maharashtra if they could help it and it must be the exigencies of the situation which drives a manufacturer of bidis to such course of action. In any event, the Act ought not to be construed so as to ban import of tendu, leaves from outside the State or restrict their movement once they were within the State unless clear language was used in that behalf. If and when such express embargo is imposed, a question may arise as to whether it offends the different provisions of Part XIII of the Constitution. 14.
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### Explanation:
8. We find ourselves unable to accept the contentions put forward by counsel on behalf of the State. All the relevant provisions of the Act and the Rules referred to above show that the legislature intended that everybody growing leaves within the State should offer the same to it or its agents in different units for sale and the State was bound to purchase every single lot of tendu leaves unless the same could be said to be unfit for the manufacture of bids.Prima facie trade in tendu leaves as was held by this Court in Vrajlal Manilal v. State of Madh Pra, (1970) 1 SCR 400 at p. 408 = (AIR 1970 SC 129 ) would consist of dealing in those leaves i.e. their purchase and sale but "transport of the leaves once purcesed or sold would not prima facie be an organic or integral part or dealing in those leaves." It was further held in that case:"...a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are prchased to his ware-house, then to the branches and to the sattedars cannot up to that stage be regarded as unreasonable in the light of the object of the Act, the economic condition prevailing in the State and the mischief which it seeks to cure. At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of comparatively small quantities of these leaves would not only be unreasonable but frustrating."In that case there was no question of import of any tendu leaves from outside the State or the issue of any permits in that regard. What was objected to was the insistence upon transport permits for the leaves to be distributed by the manufacturers to his innumerable sattedars and mazdoors under Section 5 of the Act. It was held that though the section "is couched in apparently wide language, the very object of the Act, as disclosed by its long title, contains inherent limitations against an absolute or as strictly regulated a ban as it would at frist reading of the section appear." Though the Court there up-held the provisions relating to the creation of the monopoly in the public interest in the matter of sale and purchase of tendu leaves, it was not disposed to uphold the restrictions on movement to the extent it was sought to be enforced by the State in that caseWithout expressing our views on the subject we hold that the entire provisions of the Act and the rules are consistent with and aim at the State monoploy in the trade of tendu leaves in case of leaves grown or produced in the State and the legislature never intended that the monopoly should be operative even to the extent of banning import of tendu leaves from outside or stalling the tendu leaves once they found their way into the State from outside. The transport of tendu leaves purchased outside but consigned to places within the State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act. It stands to reason that manufacturers of bidis in the State of Madhya Pradesh would not think of importing tendu leaves from distant places like Bihar and Maharashtra if they could help it and it must be the exigencies of the situation which drives a manufacturer of bidis to such course of action. In any event, the Act ought not to be construed so as to ban import of tendu, leaves from outside the State or restrict their movement once they were within the State unless clear language was used in that behalf. If and when such express embargo is imposed, a question may arise as to whether it offends the different provisions of Part XIII of the Constitution
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Nath Seeds Ltd. and Ors Vs. The Malaprabha Neerwani Balakedara Co-operative Sangh Ltd | 1. The Malaprabha Neerwani Balakedara (Irrigation Consumer) Co-operative Sangh Ltd. Respondent in the appeal herein, filed a petition before the National Consumer Disputes Redressal Commission (the Commission) on behalf of 201 farmers wherein it was complained that the Appellant supplied spurious cotton seeds called Shiv Nath Branch of cotton seeds which resulted in failure of crop and the farmers suffered huge losses. The Commission appointed Two-men Committee to record evidence and submit a report. One of the members of the Committee was the Vice-Chancellor of the Agriculture University Bangalore. Relying upon the report of the Committee the Commission found substance in the complaint and passed the following order: We have gone through the report of the Commissioners and find that they have considered all the relevant evidences. Their findings are not vitiated in any manner. Therefore, we uphold the report of the Commissioners. The Commissioners have prepared a statement showing the estimated loss incurred by the farmers of Arekurhatti Village due to Shiv Nath cotton seeds grown during 1988-89. That statement is at pages 40 to 46 of the report of the Commissioners. Names and addresses of farmers who incurred loss on account of sowing of Shiv Nath Cotton Seeds supplied by M/s. Nath Seeds Ltd., i.e. the Company has also been prepared by the Company and it is at page 47 to 49. We order that both the lists shall form the part of this order. The various farmers mentioned in the list are awarded amounts as estimated by the Commissioners in the list which is at pages 40 and 46 of the report. These amounts will be payable by the Opposite Parties Nos. 5 to 7 jointly and severally within two months of the receipt of this order. The complainant is also allowed Rs. 5,000/- as costs of the present proceedings from the said Opposite Parties. 2. We have heard Mr. G.L. Sanghi, learned Senior Advocate appearing for the Appellant. He has taken us through the report of the Committee, the order of the Commission and other relevant material on the record. | 0[ds]2. We have heard Mr. G.L. Sanghi, learned Senior Advocate appearing for the Appellant. He has taken us through the report of the Committee, the order of the Commission and other relevant material on the record. | 0 | 376 | 46 | ### Instruction:
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1. The Malaprabha Neerwani Balakedara (Irrigation Consumer) Co-operative Sangh Ltd. Respondent in the appeal herein, filed a petition before the National Consumer Disputes Redressal Commission (the Commission) on behalf of 201 farmers wherein it was complained that the Appellant supplied spurious cotton seeds called Shiv Nath Branch of cotton seeds which resulted in failure of crop and the farmers suffered huge losses. The Commission appointed Two-men Committee to record evidence and submit a report. One of the members of the Committee was the Vice-Chancellor of the Agriculture University Bangalore. Relying upon the report of the Committee the Commission found substance in the complaint and passed the following order: We have gone through the report of the Commissioners and find that they have considered all the relevant evidences. Their findings are not vitiated in any manner. Therefore, we uphold the report of the Commissioners. The Commissioners have prepared a statement showing the estimated loss incurred by the farmers of Arekurhatti Village due to Shiv Nath cotton seeds grown during 1988-89. That statement is at pages 40 to 46 of the report of the Commissioners. Names and addresses of farmers who incurred loss on account of sowing of Shiv Nath Cotton Seeds supplied by M/s. Nath Seeds Ltd., i.e. the Company has also been prepared by the Company and it is at page 47 to 49. We order that both the lists shall form the part of this order. The various farmers mentioned in the list are awarded amounts as estimated by the Commissioners in the list which is at pages 40 and 46 of the report. These amounts will be payable by the Opposite Parties Nos. 5 to 7 jointly and severally within two months of the receipt of this order. The complainant is also allowed Rs. 5,000/- as costs of the present proceedings from the said Opposite Parties. 2. We have heard Mr. G.L. Sanghi, learned Senior Advocate appearing for the Appellant. He has taken us through the report of the Committee, the order of the Commission and other relevant material on the record.
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### Explanation:
2. We have heard Mr. G.L. Sanghi, learned Senior Advocate appearing for the Appellant. He has taken us through the report of the Committee, the order of the Commission and other relevant material on the record.
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Smt. Santa Sila Devi And Another Vs. Dhirendra Nath Sen And Others | K.B. 736, 748.). Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter separately, but can deliver a consolidated award. The legal position is clear that unless so specifically required an award need not formally express the decision of the arbitrator on each matter of difference. (Vide Re. Brown and The Croydon Canal Co. (1839 9 Ad. & Ell. 522 - 112 E.R. 1309.) and Jewell v. Christie (1867 L.R. 2 C.P. 296.). Further, as Parke, B. himself put it during the course of arguments in Harrison v. Creswick (1853 138 E.R. 1254.)"Unless the contrary appears the court will presume that the award disposes finally of all the matters in difference."and to repeat a sentence from the extract quoted earlier"Where an award is made de praemissis, the presumption is, that the arbitrator intended to dispose finally of all the matters in difference; and his award will be held final, if by any intendment it can be made so."11. We shall approach the argument addressed to us in the light of these considerations. Now the award opens with a paragraph which recites, after setting out the reference"Whereas I have heard and duly considered all the allegations advanced, evidence adduced before me regarding the respective cases of the parties........ I do hereby make and publish this, my award in writing as to all the disputes mentioned above."12. It need hardly be added that the arbitration agreement and the statements filed extracts from which we have set out earlier were among the documents incorporated with this award and included among the matters considered by the arbitrator which disputes he intended to resolve by this award. The award, therefore, on its face intended and purported to decide all the disputes raised for this adjudication and therefore the Court will assume that he has considered and disposed of every claim made or defence raised. Since the award now impugned or expressly states that it is made "de praemissis, " i.e., of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete. In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to that relief13. We shall next turn to the submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constant, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, therefore, has to be repelledThe next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either. The award had declared the shares of the parties in the Glass Company and by cl. 9(b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and propriety disputes had been raised. When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders. The silence of the arbitrator in this regard and his failure to made any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state of affairs14. The last of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties. The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim. It is, therefore, an instance where the silence of the award is a clear indication, having regard to the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld. This would not render the award incomplete. We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance. | 0[ds]In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to thatshall next turn to the submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constant, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, therefore, has to be repelledThe next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either. The award had declared the shares of the parties in the Glass Company and by cl. 9(b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and propriety disputes had been raised. When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders. The silence of the arbitrator in this regard and his failure to made any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state oflast of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties. The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim. It is, therefore, an instance where the silence of the award is a clear indication, having regard to the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld. This would not render the award incomplete. We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance. | 0 | 4,117 | 676 | ### Instruction:
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K.B. 736, 748.). Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter separately, but can deliver a consolidated award. The legal position is clear that unless so specifically required an award need not formally express the decision of the arbitrator on each matter of difference. (Vide Re. Brown and The Croydon Canal Co. (1839 9 Ad. & Ell. 522 - 112 E.R. 1309.) and Jewell v. Christie (1867 L.R. 2 C.P. 296.). Further, as Parke, B. himself put it during the course of arguments in Harrison v. Creswick (1853 138 E.R. 1254.)"Unless the contrary appears the court will presume that the award disposes finally of all the matters in difference."and to repeat a sentence from the extract quoted earlier"Where an award is made de praemissis, the presumption is, that the arbitrator intended to dispose finally of all the matters in difference; and his award will be held final, if by any intendment it can be made so."11. We shall approach the argument addressed to us in the light of these considerations. Now the award opens with a paragraph which recites, after setting out the reference"Whereas I have heard and duly considered all the allegations advanced, evidence adduced before me regarding the respective cases of the parties........ I do hereby make and publish this, my award in writing as to all the disputes mentioned above."12. It need hardly be added that the arbitration agreement and the statements filed extracts from which we have set out earlier were among the documents incorporated with this award and included among the matters considered by the arbitrator which disputes he intended to resolve by this award. The award, therefore, on its face intended and purported to decide all the disputes raised for this adjudication and therefore the Court will assume that he has considered and disposed of every claim made or defence raised. Since the award now impugned or expressly states that it is made "de praemissis, " i.e., of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete. In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to that relief13. We shall next turn to the submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constant, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, therefore, has to be repelledThe next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either. The award had declared the shares of the parties in the Glass Company and by cl. 9(b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and propriety disputes had been raised. When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders. The silence of the arbitrator in this regard and his failure to made any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state of affairs14. The last of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties. The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim. It is, therefore, an instance where the silence of the award is a clear indication, having regard to the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld. This would not render the award incomplete. We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance.
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### Explanation:
In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to thatshall next turn to the submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constant, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, therefore, has to be repelledThe next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either. The award had declared the shares of the parties in the Glass Company and by cl. 9(b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and propriety disputes had been raised. When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders. The silence of the arbitrator in this regard and his failure to made any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state oflast of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties. The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim. It is, therefore, an instance where the silence of the award is a clear indication, having regard to the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld. This would not render the award incomplete. We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance.
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Brig. S. Ramachandran Vs. Hyderabad Allwyn Metal Works Limited, Sanathnagar, Hyderabad and Others | 1. The appellant joined service with Respondent 1 as General Manager/Executive Director in June 1980. His services were terminated on payment of three months salary in lieu of the notice period by the order dated 4-5-1981. Clauses 4, 5 and 6 of the appointment order are as under "4. You will be on probation for a period of one year from the date of joining duty5. The Management reserves the right to terminate your probation at any time during the period of probation, without notice and without assigning any reason whatsoever6. The appointment is terminable on three months notice on either side." * 2. The appellant represented before Respondent 1 that clause 6 by itself was sufficient to protect the interests of both the parties and as such it was not necessary to retain clauses 4 and 5 of the appointment order. On the said representation the employer deleted clauses 4 and 5 from the appointment order3. The appellant challenged the order of termination by why of a writ petition before the Andhra Pradesh High Court. A learned Single Judge dismissed the writ petition on the following reasoning "It is clear from a perusal of the above correspondence that, in the original offer of appointment, the petitioner was supposed to be kept on probation for a period of one year from the date of joining duty, and the Management reserved to itself the right to terminate his probation at any time during the period of probation without notice, and without assigning any reasons (vide conditions 4 and 5 in the order dated 1-1-1980). Condition 6 of this order clearly provided further that the appointment is terminable on three months notice on either side. When this offer was made to the petitioner, he objected only to conditions 4 and 5, stating that condition 6 is sufficient protection for both sides. He also wanted to be designated as Executive Director, instead of General Manager. The 1st respondent Company accepted the said conditions and, accordingly, deleted conditions 4 and 5. This was intimated to the petitioner by letter dated 13-2-1980. Subsequently, the order of appointment issued on 10- 6-1980, while omitting conditions 4 and 5 contained in the original offer, but specifically incorporating condition 6 in the original offer, as condition 4, which stated that appointment is terminable on three months notice on either side. It is thus clear that the appointment of the petitioner was on contract, and was the result of an agreement between the parties. Both the parties clearly understood and stipulated that either party shall be entitled to terminate the employment by giving three months notice. The present order of termination is clearly in terms of the contract of service." * 4. Mr. A. Subba Rao, learned counsel for the appellant, has vehemently contended that clause 6 of the appointment order (quoted above) is liable to be struck down in view of the law laid down by this Court in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly1 as approached by the Constitution Bench in Delhi Transport Corpn. v. DTC Mazdoor Congress2. We are of the view that the law laid down by this Court in the abovesaid two judgments has no application to the facts of the present case. The appellant joined service on 10- 6-1980 and his services were terminated on 4-5-1981. He had hardly worked for one year. There is nothing on the record to show that he was appointed by Respondent 1 on a regular basis. We are, therefore, of the view that the appellant was not a regular/permanent employee of Respondent 1 and he had no right to continue till superannuation. The ratio of the above two judgments is no, therefore, applicable to the case in hand5. The judgment of the learned Single Judge was upheld by the Division Bench of the High Court. The Bench gave liberty to the appellant to approach the civil court if he so wishes | 0[ds]We are of the view that the law laid down by this Court in the abovesaid two judgments has no application to the facts of the present case. The appellant joined service on 10and his services were terminated onHe had hardly worked for one year. There is nothing on the record to show that he was appointed by Respondent 1 on a regular basis. We are, therefore, of the view that the appellant was not a regular/permanent employee of Respondent 1 and he had no right to continue till superannuation. The ratio of the above two judgments is no, therefore, applicable to the case in hand5. The judgment of the learned Single Judge was upheld by the Division Bench of the High Court. The Bench gave liberty to the appellant to approach the civil court if he so wishes | 0 | 721 | 153 | ### Instruction:
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1. The appellant joined service with Respondent 1 as General Manager/Executive Director in June 1980. His services were terminated on payment of three months salary in lieu of the notice period by the order dated 4-5-1981. Clauses 4, 5 and 6 of the appointment order are as under "4. You will be on probation for a period of one year from the date of joining duty5. The Management reserves the right to terminate your probation at any time during the period of probation, without notice and without assigning any reason whatsoever6. The appointment is terminable on three months notice on either side." * 2. The appellant represented before Respondent 1 that clause 6 by itself was sufficient to protect the interests of both the parties and as such it was not necessary to retain clauses 4 and 5 of the appointment order. On the said representation the employer deleted clauses 4 and 5 from the appointment order3. The appellant challenged the order of termination by why of a writ petition before the Andhra Pradesh High Court. A learned Single Judge dismissed the writ petition on the following reasoning "It is clear from a perusal of the above correspondence that, in the original offer of appointment, the petitioner was supposed to be kept on probation for a period of one year from the date of joining duty, and the Management reserved to itself the right to terminate his probation at any time during the period of probation without notice, and without assigning any reasons (vide conditions 4 and 5 in the order dated 1-1-1980). Condition 6 of this order clearly provided further that the appointment is terminable on three months notice on either side. When this offer was made to the petitioner, he objected only to conditions 4 and 5, stating that condition 6 is sufficient protection for both sides. He also wanted to be designated as Executive Director, instead of General Manager. The 1st respondent Company accepted the said conditions and, accordingly, deleted conditions 4 and 5. This was intimated to the petitioner by letter dated 13-2-1980. Subsequently, the order of appointment issued on 10- 6-1980, while omitting conditions 4 and 5 contained in the original offer, but specifically incorporating condition 6 in the original offer, as condition 4, which stated that appointment is terminable on three months notice on either side. It is thus clear that the appointment of the petitioner was on contract, and was the result of an agreement between the parties. Both the parties clearly understood and stipulated that either party shall be entitled to terminate the employment by giving three months notice. The present order of termination is clearly in terms of the contract of service." * 4. Mr. A. Subba Rao, learned counsel for the appellant, has vehemently contended that clause 6 of the appointment order (quoted above) is liable to be struck down in view of the law laid down by this Court in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly1 as approached by the Constitution Bench in Delhi Transport Corpn. v. DTC Mazdoor Congress2. We are of the view that the law laid down by this Court in the abovesaid two judgments has no application to the facts of the present case. The appellant joined service on 10- 6-1980 and his services were terminated on 4-5-1981. He had hardly worked for one year. There is nothing on the record to show that he was appointed by Respondent 1 on a regular basis. We are, therefore, of the view that the appellant was not a regular/permanent employee of Respondent 1 and he had no right to continue till superannuation. The ratio of the above two judgments is no, therefore, applicable to the case in hand5. The judgment of the learned Single Judge was upheld by the Division Bench of the High Court. The Bench gave liberty to the appellant to approach the civil court if he so wishes
### Response:
0
### Explanation:
We are of the view that the law laid down by this Court in the abovesaid two judgments has no application to the facts of the present case. The appellant joined service on 10and his services were terminated onHe had hardly worked for one year. There is nothing on the record to show that he was appointed by Respondent 1 on a regular basis. We are, therefore, of the view that the appellant was not a regular/permanent employee of Respondent 1 and he had no right to continue till superannuation. The ratio of the above two judgments is no, therefore, applicable to the case in hand5. The judgment of the learned Single Judge was upheld by the Division Bench of the High Court. The Bench gave liberty to the appellant to approach the civil court if he so wishes
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Ram Saran & Another Vs. Ganga Devi | Hegde, J. 1. This is a plaintiffs appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer, widow of Lalita Prasad. After the death of Chhabili Kuer, on February 8, 1971, Ganga Devi, the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either the entire or even any portion of the suit properties. 2. The fact finding courts, namely the trial court as well as the appellate courts have come to the conclusion that during the life-time of Chhabili, she was in possession of a portion of the suit properties and the other portion remained in possession of the plaintiffs. The further finding reached by those courts is that after the death of Chhabili Kuer, Ganga Devi took unlawful possession of the properties which were in possession of Chhabili Kuer. They also found that Ganga Devi was not the heir of Chhabili but on the other hand the plaintiffs were her heirs. 3. The courts below have come to the conclusion that the present suit falls within the scope of Section 209 of the U.P. Act 1 of 1951, and the suit not having been brought within the period of three years as provided in that Act, the suit is barred by limitation. The High Court agreed with that conclusion. In addition it held that the suit is hit by Section 42 of the Specific Relief Act. 4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation. | 0[ds]4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by theg courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation. | 0 | 411 | 100 | ### Instruction:
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Hegde, J. 1. This is a plaintiffs appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer, widow of Lalita Prasad. After the death of Chhabili Kuer, on February 8, 1971, Ganga Devi, the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either the entire or even any portion of the suit properties. 2. The fact finding courts, namely the trial court as well as the appellate courts have come to the conclusion that during the life-time of Chhabili, she was in possession of a portion of the suit properties and the other portion remained in possession of the plaintiffs. The further finding reached by those courts is that after the death of Chhabili Kuer, Ganga Devi took unlawful possession of the properties which were in possession of Chhabili Kuer. They also found that Ganga Devi was not the heir of Chhabili but on the other hand the plaintiffs were her heirs. 3. The courts below have come to the conclusion that the present suit falls within the scope of Section 209 of the U.P. Act 1 of 1951, and the suit not having been brought within the period of three years as provided in that Act, the suit is barred by limitation. The High Court agreed with that conclusion. In addition it held that the suit is hit by Section 42 of the Specific Relief Act. 4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation.
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### Explanation:
4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by theg courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation.
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Amalgamated Commercial Traders Private Limited Vs. A C K Krishnaswami and Another | petition in respect of the dividends declared for the year 1959(6) That the declaration of dividend even before the actual receipt of assets was valid;(7) That the resolution of the company dated December 30, 1959, did not contravene the provisions of section 207 of the Companies Act; and(8) That the resolution dated December 30, 1959, in form and substance consisted of two parts, separable between themselves and that the invalidity of the second part that payment would be effected when the commission due from the principals was realised could not render the declaration of dividend itself void6. In conclusion as already stated, the Division Bench ordered that the company be directed to be wound up on the ground of its inability to pay its debts, subject to the direction that the order may be kept in abeyanceMr. G. Vasanta Pai, the learned counsel for the appellant, raised the following points us[1] That Hariprasad is not a creditor within section 434 and 439 of the Companies act and is not entitled to present a petition for winding up as a creditor[2] that non payment of the dividend was due to the default of Hariparad, when he was director, and consequently he was disentitled from filing a petition under section 439[3] That as the object of the petition was to make the appellant company give up its pleas regarding the invalidity of the resolution dated December 30. 1959 the petition was an abuse of the process of court[4] That the High court should have ascertained the wishes of the other creditors and contributories;[5] That section 433, read with section 434, gives a discretion to the court to wind up a company or not and the Division Bench should not have, on the facts of the case, ordered the winding up of the appellant company and;[6] That on the facts of the case it is clear that the debt was bona fide disputed by the appellant company and that there were substantial questions about the invalidity of the resolution dated December 30, 1959, and the Division Bench should have dismissed the petition on this ground alone7. As there is substance in the last contention of Mr. Pai, it is not necessary to deal with the others contentions. Mr. Pai put his case thus, section 207 of the Companies Act, at the relevant time, required a company to pay a dividend which had been declared within three months form the date of the declaration. it is obvious, he says, that a company cannot declare a dividend to be payable beyond three months. If it does, that the declaration would be a nullity. He further contends that such a resolution would not be servable. he then says that that is what has happened in this case. The resolution of December 30, 1959, declaring a dividend, made the payment of the dividend contingent on the receipt of the commission from the Indian sugar and Refineries Ltd. and the Salar Jung Sugar Mills. The commission was not received till May 1960 i.e. more than three months from the date of the declaration. he urges that this was a bona fide dispute. The appellant company had obtained legal advice to this effect and had no option but to act upon it. No shareholder was treated differently. It payment had been made to the petitioner after the statutory notice under section 434 of the Companies act, the appellant company would have had to pay to all the shareholders in disregard of the legal advice. Non payment of the dividend was not a cloak to hide the inability of the company to pay its debts for the company was a flourishing concern. Rs. 10, 000 were deposited in court when Veeraswami J. Directed it to deposit this sum as a condition for obtaining adjournmentIt is well settled that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court. At one time petitions founded on disputed debt were directed to stand over till the debit was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not deposited on some substantial ground, the court may decide it on the petition and make the order Vide buckley on the Companies ACts, 13th edition, page 451]8. We are satisfied that the debt in respect of which notice was given under section 434 was bona fide disputed by the appellant company. The appellant company had received legal advice and it had acted on it. On the facts it seems to us clear that the appellant company did not dispute the debt in order to hide its inability to pay debts. Further we are satisfied that the question whether the declaration of dividend dated December 30, 1959, is valid or not raises a substantial question as to the interpretation of section 207 of the Companies act. Further, whether the declaration dated December 30, 1959, is servable or not is also a substantial question. We do not propose to decide whether the declaration of dividend was valid or not or whether it was servable or not, because in these proceedings we are only concerned with the question whether the debt was bona fide disputed by the company on substantial grounds. It the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within section 434[1] [a] of the Companies ACt. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated | 1[ds]8. We are satisfied that the debt in respect of which notice was given under section 434 was bona fide disputed by the appellant company. The appellant company had received legal advice and it had acted on it. On the facts it seems to us clear that the appellant company did not dispute the debt in order to hide its inability to pay debts. Further we are satisfied that the question whether the declaration of dividend dated December 30, 1959, is valid or not raises a substantial question as to the interpretation of section 207 of the Companies act. Further, whether the declaration dated December 30, 1959, is servable or not is also a substantial question. We do not propose to decide whether the declaration of dividend was valid or not or whether it was servable or not, because in these proceedings we are only concerned with the question whether the debt was bona fide disputed by the company on substantial grounds. It the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within section 434[1] [a] of the Companies ACt. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated | 1 | 3,809 | 249 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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petition in respect of the dividends declared for the year 1959(6) That the declaration of dividend even before the actual receipt of assets was valid;(7) That the resolution of the company dated December 30, 1959, did not contravene the provisions of section 207 of the Companies Act; and(8) That the resolution dated December 30, 1959, in form and substance consisted of two parts, separable between themselves and that the invalidity of the second part that payment would be effected when the commission due from the principals was realised could not render the declaration of dividend itself void6. In conclusion as already stated, the Division Bench ordered that the company be directed to be wound up on the ground of its inability to pay its debts, subject to the direction that the order may be kept in abeyanceMr. G. Vasanta Pai, the learned counsel for the appellant, raised the following points us[1] That Hariprasad is not a creditor within section 434 and 439 of the Companies act and is not entitled to present a petition for winding up as a creditor[2] that non payment of the dividend was due to the default of Hariparad, when he was director, and consequently he was disentitled from filing a petition under section 439[3] That as the object of the petition was to make the appellant company give up its pleas regarding the invalidity of the resolution dated December 30. 1959 the petition was an abuse of the process of court[4] That the High court should have ascertained the wishes of the other creditors and contributories;[5] That section 433, read with section 434, gives a discretion to the court to wind up a company or not and the Division Bench should not have, on the facts of the case, ordered the winding up of the appellant company and;[6] That on the facts of the case it is clear that the debt was bona fide disputed by the appellant company and that there were substantial questions about the invalidity of the resolution dated December 30, 1959, and the Division Bench should have dismissed the petition on this ground alone7. As there is substance in the last contention of Mr. Pai, it is not necessary to deal with the others contentions. Mr. Pai put his case thus, section 207 of the Companies Act, at the relevant time, required a company to pay a dividend which had been declared within three months form the date of the declaration. it is obvious, he says, that a company cannot declare a dividend to be payable beyond three months. If it does, that the declaration would be a nullity. He further contends that such a resolution would not be servable. he then says that that is what has happened in this case. The resolution of December 30, 1959, declaring a dividend, made the payment of the dividend contingent on the receipt of the commission from the Indian sugar and Refineries Ltd. and the Salar Jung Sugar Mills. The commission was not received till May 1960 i.e. more than three months from the date of the declaration. he urges that this was a bona fide dispute. The appellant company had obtained legal advice to this effect and had no option but to act upon it. No shareholder was treated differently. It payment had been made to the petitioner after the statutory notice under section 434 of the Companies act, the appellant company would have had to pay to all the shareholders in disregard of the legal advice. Non payment of the dividend was not a cloak to hide the inability of the company to pay its debts for the company was a flourishing concern. Rs. 10, 000 were deposited in court when Veeraswami J. Directed it to deposit this sum as a condition for obtaining adjournmentIt is well settled that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court. At one time petitions founded on disputed debt were directed to stand over till the debit was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not deposited on some substantial ground, the court may decide it on the petition and make the order Vide buckley on the Companies ACts, 13th edition, page 451]8. We are satisfied that the debt in respect of which notice was given under section 434 was bona fide disputed by the appellant company. The appellant company had received legal advice and it had acted on it. On the facts it seems to us clear that the appellant company did not dispute the debt in order to hide its inability to pay debts. Further we are satisfied that the question whether the declaration of dividend dated December 30, 1959, is valid or not raises a substantial question as to the interpretation of section 207 of the Companies act. Further, whether the declaration dated December 30, 1959, is servable or not is also a substantial question. We do not propose to decide whether the declaration of dividend was valid or not or whether it was servable or not, because in these proceedings we are only concerned with the question whether the debt was bona fide disputed by the company on substantial grounds. It the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within section 434[1] [a] of the Companies ACt. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated
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8. We are satisfied that the debt in respect of which notice was given under section 434 was bona fide disputed by the appellant company. The appellant company had received legal advice and it had acted on it. On the facts it seems to us clear that the appellant company did not dispute the debt in order to hide its inability to pay debts. Further we are satisfied that the question whether the declaration of dividend dated December 30, 1959, is valid or not raises a substantial question as to the interpretation of section 207 of the Companies act. Further, whether the declaration dated December 30, 1959, is servable or not is also a substantial question. We do not propose to decide whether the declaration of dividend was valid or not or whether it was servable or not, because in these proceedings we are only concerned with the question whether the debt was bona fide disputed by the company on substantial grounds. It the debt was bona fide disputed, as we hold it was, there cannot be neglect to pay within section 434[1] [a] of the Companies ACt. If there is no neglect, the deeming provision does not come into play and the ground of winding up, namely, that the company is unable to pay its debts is not substantiated
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ROJER MATHEW Vs. SOUTH INDIAN BANK LTD AND ORS | Difficulties would arise with reference to sub- clauses (b), (c), (d) and (e) of Article 110(1), when we apply the principles of dominant or the main purpose of an enactment test. Sub-clause (c) to Article 110(1) refers to payment of monies into or withdrawal of monies from the Consolidated Fund of India. Sub-clause (d) refers to appropriation of monies out of the Consolidated Fund of India. Sub-clause (e) refers to declaration of any expenditure charged on the Consolidated Fund of India or increasing of the amount of such expenditure. Sub-clause (f) relates to receipt of money on account of Consolidated Fund of India or Public Account of India or issue of such money or the audit of the accounts of the Union or of State. Even clause (b) in its amplitude includes an amendment of the law in respect of a financial obligation undertaken or to be undertaken by the Government of India. Once we hold that the decision of the Speaker under clause (3) of Article 110 of the Constitution though final, is subject to judicial scrutiny on the principle of constitutional illegality, the provisions of Article 110(1) have to be given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness. Any interpretation would have far reaching consequences. It is therefore, necessary that there should be absolute clarity with regard to the provisions and any ambiguity and debate should be ironed out and affirmatively decided. In case of doubt, certainly the opinion of the Speaker would be conclusive, but that would not be a consideration to avoid answering and deciding the scope and ambit of Money Bill under Article 110(1) of the Constitution. For example, taxation enactments like the Income Tax Act would qualify as Money Bill under sub-clause (a) to clause (1) of Article 110 and may include provisions relating to Appellate Tribunals which would possibly qualify as incidental provisions covered under sub-clause (g) to clause (1) of Article 110, even if we exclude application of sub-clause (d) to clause (1) of Article 110. The position it could be argued would be different with reference to provisions for constitution of a tribunal under the Administrative Tribunal Act or the National Green Tribunal Act. The bill could however state that the expenditure would be charged on the Consolidated Fund of India. 119. Another aspect which would arise for consideration would be the legal consequences in case a Non-Money Bill certified by the Speaker as a Money Bill, when presented before the Rajya Sabha is specifically objected to on this count by some Members, but on being put to vote no recommendations are made in respect of Non-Money Bill related provisions. 120. The petitioners had argued on the strength of the concurring opinion by Ashok Bhushan, J. holding that in addition to at least one provision falling under Article 110(1) (a) to (f), each of the other remaining provisions must also be incidental to such core provision(s), and hence must satisfy the requirement of Article 110(g). Such an interpretation, it was contended, would make the insertion of the word only under the prefatory part of Article 110(1) purposeful, which was said to have been glossed over by the Union. Further, it was contended that the manner in which the majority correlated Section 7 of the Aadhaar Act to Article 110(1)(e) was erroneous, for it only regulated procedure for withdrawal by imposing a requirement for authentication and did not declare any expenditure to be a charge on the Consolidated Fund of India. They had contended that the interpretation of the enactment by the majority judgement was constitutionally inexact and that a similar analysis ought not to be made in the present case. The petitioners, therefore, contend that every impugned provision be individually examined and brought either under Article 110(1)(a) to (f) or be incidental thereto, as permitted by Article 110(g). In case even a single provision did not satisfy either of the aforementioned two categories, then the entire Finance Act, 2017 would be an affront to the prefatory phraseology of Article 110(1) and must be declared as being unconstitutional. 121. However, the learned Attorney General has propounded that constitutionality of the Finance Act, 2017 would be safe if its dominant provisions, which form the core of the enactment, fall within the ambit of Article 110(1)(a) to (f). Other minor provisions, even if not strictly incidental, could take the dominant colour and could be passed along with it as a Money Bill. As per such interpretation, provisions ought not to be read in a piece-meal manner, and judicial review ought to be applied deferentially. 122. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word only in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a Money Bill do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Courts satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches. 123. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. | 1[ds]37. Tribunals can thus be viewed as alternate avenues to facilitate swift dispensation of justice through less-formal procedures of adjudication. An examination of existing Tribunals in India and across foreign jurisdictions, shows that they are best suited to deal with complex subject-matters requiring technical expertise such as service law, tax law, company law or environment law, etc102. The Unions contention that Article 122 would exempt from judicial scrutiny passage of bills is a far-fetched contention. If such a blanket exemption were to be granted, then it would open the floodgates to deviation from any Constitutional provision governing the functioning of Parliament and its legislative procedure. Since the Constitution explicitly provides a self-contained detailed procedure for enactment of legislation, and does not suggest that mere assent of the President to a law, by whatsoever method adopted, would become a valid law, it is necessary that this Court being the highest Constitutional forum for judicial review is provided with enough space for enforcement and protection of the Constitutional scheme. A perusal of the expressions used in Article 122 and a comparison with its British roots make it clear that the proceedings referred to include the power of the Parliament to frame its own rules, set out procedures for debate and discussion and powers to enforce disciple. Section 3 of the Parliament Act, 1911 in the United Kingdom makes the decision of the Speaker of the House of Commons conclusive for all purposes and shall not be questioned in any court of law. The Constitution of India however, under Article 110(3), states that if any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final. A different syntax seems to indicate that our Constitution makes the decision of the Speaker as to the nature of Bill final qua members of both the Houses of Parliament, though it is not conclusive and unchallengeable before the Courts. The scope of judicial review of decisions that enjoy the status of finality under the Constitution has been examined by this Court on several occasionsReading of the above decisions exposit that finality of decisions under the Constitution has been subject to judicial review by the Courts. However, the jurisdiction exercisable by the Courts in such matters is rather limited and is subject to the satisfaction of specific conditions as discussed. We find no good ground and reason to take a different view with respect to the power of judicial review against certification of a bill as a Money Bill by the Speaker under Article 110(4). Article 110(3) which makes this decision final qua both the Houses of Parliament and Article 122(1) which prohibits review by the courts in matters of irregularity of procedure cannot operate as a bar when a challenge is made on the ground of illegality or unconstitutionality under the Constitutional scheme103. Determining whether an impugned action or breach is an exempted irregularity or a justiciable illegality is a matter of judicial interpretation and would undoubtedly fall within the ambit of Courts and cannot be left to the sole authority of the Parliament to decide. Such a position has also been taken in the United Kingdom by the House of Lords in R (Jackson) vs. Attorney General[2005] UKHL 56. where notwithstanding the explicit bar to judicial consideration of all Parliamentary proceedings (and not just procedural irregularities as under the Constitution of India), the Court assumed jurisdiction whilst noting that interpretation of statutes dealing with legislative processes would fall within the domain of the Courts;statutory interpretation being a judicial exercise, regardless of the immunities granted to parliamentary proceedings under the Bill of Rights104. It would hence be gainsaid that gross violations of the Constitutional scheme would not be mere procedural irregularities and hence would be outside the limited ambit of immunity from judicial scrutiny under Article 122(1). In the case at hand, jurisdiction of this Court is, hence, not barred105. On the substantive question of whether the Finance Act, 2017 was a money bill under Article 110(3) it must be noted that until the turn of the twenty-first century, this Court took a consistent position that Article 110(3) of the Constitution would act as an express bar against judicial inquiry into the correctness of the certificate of money bill given by the Speaker of the Lok Sabha109. The majority opinion in Puttaswamy (supra) by examining whether or not the impugned enactment was in fact a money bill under Article 110 without explicitly dealing with whether or not certification of the speaker is subject to judicial. review, has kept intact the power of judicial review under Article 110(3). It was further held therein that the expression money bill cannot be construed in a restrictive sense and that the wisdom of the Speaker of the Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution. We respectfully endorse the view in Puttaswamy (supra) and are in no doubt that Md. Siddiqui and Yogendra Kumar Jaiswal in so far as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon110. It must be emphasized that the scope of judicial review in matters under Article 110(3) is extremely restricted, with there being a need to maintain judicial deference to the Lok Sabha Speakers certification. There would be a presumption of legality in favour of the Speakers decision and onus would undoubtedly be on the person challenging its validity to show that such certification was grossly unconstitutional or tainted with blatant substantial illegality. Courts ought not to replace the Speakers assessment or take a second plausible interpretation. Instead, judicial review must be restricted to only the very extreme instance where there is a complete disregard to the Constitutional scheme itself. It is not the function of Constitutional Courts to act as appellate forums, especially on the opinion of the Speaker, for doing so would invite the risk of paralyzing the functioning of the Parliament111. In light of the aforementioned narrow scope of inquiry and the high burden to be discharged by the petitioner(s) against the Speakers certification, we may now examine the challenge laid to the Finance Act, 2017117. In the context of Article 110(1) of the Constitution, use of the word only in relation to sub-clauses (a) to (f) pose an interesting, albeit a difficult question which was not examined and answered by the majority judgment in K.S. Puttaswamy (Aadhaar-5). While it may be easier to decipher a bill relating to imposition, abolition, remission, alteration or regulation of any tax, difficulties would arise in the interpretation of Article 110(1) specifically with reference to sub-clauses (b) to (f) in a bill relating to borrowing of money or giving of any guarantee by the Government of India, or an amendment of law concerning financial obligation. In the book, Practices and Procedures of Parliament by Kaul and Shakdher, it is opined that unless the word only is interpreted in a right manner, Article 110(1) would be a nullity. A liberal and wide interpretation, on the other hand, possibly exposits an opposite consequence. Relevant portion of the opinion by Kaul and Shakdher reads:Speaker Mavalankar observed as follows:Prima facie, it appears to me that the words of article 110 (imposition, abolition, remission, alteration, regulation of any tax) are sufficiently wide to make the Consolidated Bill a Money Bill. A question may arise as to what is the exact significance or scope of the word only and whether and how far that word goes to modify or control the wide and general words imposition, abolition, remission, etc.. I think, prima facie, that the word only is not restrictive of the scope of the general terms. If a Bill substantially deals with the imposition, abolition, etc., of a tax, then the mere fact of the inclusion in the Bill of other provisions which may be necessary for the administration of that tax or, I may say, necessary for the achievement of the objective of the particular Bill, cannot take away the Bill from the category of Money Bills. One has to look to the objective of the bill. Therefore, if the substantial provisions of the Bill aim at imposition, abolition, etc., of any tax then the other provisions would be incidental and their inclusion cannot be said to take it away from the category of a Money Bill. Unless one construes the word only in this way it might lead to make article 110 a nullity. No tax can be imposed without making provisions for its assessment, collection, administration, reference to courts or tribunals, etc, one can visualise only one section in a Bill imposing the main tax and there may be fifty other sections which may deal with the scope, method, manner, etc., of that imposition. Further, we have also to consider the provisions of sub-clause (2) of article 110; and these provisions may be helpful to clarify the scope of the word only, not directly but indirectly118. The majority judgment did not advert to the doctrine of pith and substance whereas judgment of Ashok Bhushan, J. had referred to the dominant purpose. The test of dominant purpose possibly has its own limitation as many a legislation would have more than one dominant objective especially when this prescription is read with reference to sub-clauses (a) to (f) of Article 110(1) of the Constitution. Further, determination of what constitutes paramount and cardinal purpose of the legislation and the test applicable to determine this compunction and incertitude itself is not free from ambiguity. Difficulties would arise with reference to sub- clauses (b), (c), (d) and (e) of Article 110(1), when we apply the principles of dominant or the main purpose of an enactment test. Sub-clause (c) to Article 110(1) refers to payment of monies into or withdrawal of monies from the Consolidated Fund of India. Sub-clause (d) refers to appropriation of monies out of the Consolidated Fund of India. Sub-clause (e) refers to declaration of any expenditure charged on the Consolidated Fund of India or increasing of the amount of such expenditure. Sub-clause (f) relates to receipt of money on account of Consolidated Fund of India or Public Account of India or issue of such money or the audit of the accounts of the Union or of State. Even clause (b) in its amplitude includes an amendment of the law in respect of a financial obligation undertaken or to be undertaken by the Government of India. Once we hold that the decision of the Speaker under clause (3) of Article 110 of the Constitution though final, is subject to judicial scrutiny on the principle of constitutional illegality, the provisions of Article 110(1) have to be given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness. Any interpretation would have far reaching consequences. It is therefore, necessary that there should be absolute clarity with regard to the provisions and any ambiguity and debate should be ironed out and affirmatively decided. In case of doubt, certainly the opinion of the Speaker would be conclusive, but that would not be a consideration to avoid answering and deciding the scope and ambit of Money Bill under Article 110(1) of the Constitution. For example, taxation enactments like the Income Tax Act would qualify as Money Bill under sub-clause (a) to clause (1) of Article 110 and may include provisions relating to Appellate Tribunals which would possibly qualify as incidental provisions covered under sub-clause (g) to clause (1) of Article 110, even if we exclude application of sub-clause (d) to clause (1) of Article 110. The position it could be argued would be different with reference to provisions for constitution of a tribunal under the Administrative Tribunal Act or the National Green Tribunal Act. The bill could however state that the expenditure would be charged on the Consolidated Fund of India122. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word only in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a Money Bill do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Courts satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches123. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness124. There is yet another reason why we feel the matter should be referred to a Constitution Bench of seven judges. L. Chandra Kumar (supra), which was decided by a Bench of seven Judges, had also interpreted on the ambit of supervision by the High Courts under Article 227(1) of the Constitution to observe that the Constitutional scheme does not require all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction, as the idea is to divest the High Courts of their onerous burden. Consequently, adding to their supervisory functions vide Article 227(1) cannot be of assistance in any manner. Thereafter, it was observed that different tribunals constituted under different enactments are administered by the Central and the State Governments, yet there was no uniformity in administration. This Court was of the view that until a wholly independent agency for such tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, the Court observed that the Ministry of Law would be the appropriate ministry. The Ministry of Law in turn was required to appoint an independent supervisory body to oversee the working of the Tribunals. As noticed above, this has not happened125. The second challenge against Part XIV of the Finance Act, 2017 is predicated on the assertion that this is a case of excessive delegation as it falters on the anvil of essential legislative functions and policy and guidelines tests126. The Eighth Schedule referred to in Section 183 contains a list of 19 tribunals with corresponding enactments under which they were constituted. Section 183 overrides the provisions of the enactments specified in column (3) of the Eighth Schedule and mandates that from the appointed date, the Chairperson, Vice- Chairperson, Chairman, Vice Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule shall be appointed in terms of provisions of Section 184 of the Finance Act. These provisions however, do not apply to those who have already been appointed to the said posts immediately before the appointed date, that is the date on which the Central Government may, by a notification in the Official Gazette, bring the said provisions into effect130. Reading of the said provisions indicates that except for providing the upper age limit and that the person appointed shall not have tenure exceeding five years from the date on which he enters office and shall be eligible for re-appointment, the Finance Act delegates the power to specify the qualifications, method of selection and appointment, terms of office, salaries and allowances, removal including resignation and all other terms and conditions of service to the Central Government which would act as a delegatee of the Parliament. The governing statutory provisions embodied in the existing parent legislation specified in the column (3) of the Schedule and the rules made thereunder are overwritten and authority and power is conferred on the Central Government to decide qualifications for appointment, process for selection, and terms and conditions of service including salaries allowance, resignation and removal through delegated or subordinate legislationIt will be difficult to hold that Part XIV of the Finance Act suffers from thevice of unguided delegation as it fails to clearly specify the eligibility qualifications for the Members, Chairpersons, Chairman etc. of different Tribunals as such requirements, though important, are not per se functionally undelegatable143. The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra), L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas (supra) undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature had intended to differ from, let alone make amendments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the learned Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions144. Independence of a quasi-judicial authority like the tribunal highlighted in the above decisions would be, therefore, read as the policy and guideline applicable. Principle of independence of judiciary/tribunal has within its fold two broad concepts, as held in Supreme Court Advocates-On-Record Association and Another v. Union of India (2016) 5 SCC 1 See paragraph 714, (i) independence of an individual judge, that is, decisional independence; and (ii) independence of the judiciary or the Tribunal as an institution or an organ of the State, that is, functional independence. Individual independence has various facets which include security of tenure, procedure for renewal, terms and conditions of service like salary, allowances, etc. which should be fair and just and which should be protected and not varied to his/her disadvantage after appointment. Independence of the institution refers to sufficient degree of separation from other branches of the government, especially when the branch is a litigant or one of the parties before the tribunal. Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres – economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence148. On examining the Constitutional scheme, the statutes which had created tribunals and the precedents of this Court laying down attributes of independence of tribunals in different facets, we do not think that the power to prescribe qualifications, selection procedure and service conditions of members and other office holders of the tribunals is intended to vest solely with the Legislature for all times and purposes. Policy and guidelines exist. Subject to aforesaid, the submission of learned Attorney General that Section 184 was inserted to bring uniformity and with a view to harmonise the diverse and wide-ranging qualifications and methods of appointment across different tribunals carries weight and, in our view, needs to be accepted149. Cautioning against the potential misuse of Section 184 by the executive, it was vehemently argued by the learned counsel for the petitioner(s) that any desecration by the Executive of such powers threatens and poses a risk to the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting such claim, cannot be a ground for striking down the provisions of the Finance Act, 2017. It is always open to a Constitutional court on challenge made to the delegated legislation framed by the Executive to examine whether it conforms to the parent legislation and other laws, and apply the policy and guideline test and if found contrary, can be struck down without affecting the constitutionality of the rule making power conferred under Section 186 of the Finance Act, 2017152. Composition of a Search-cum-Selection Committee is contemplated in a manner whereby appointments of Member, Vice-President and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent153. We are in agreement with the contentions of the Learned Counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. The doctrine of separation of powers has been well recognised and re-interpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala(1973) 4 SCC 225 , and several other later decisions. The exclusion of the Judiciary from the control and influence of the Executive is not limited to traditional Courts alone, but also includes Tribunals since they are formed as an alternative to Courts and perform judicial functions154. Clearly, the composition of the Search-cum-Selection Committees under the Rules amounts to excessive interference of the Executive in appointment of members and presiding officers of statutory Tribunals and would undoubtedly be detrimental to the independence of judiciary besides being an affront to the doctrine of separation of powers157. We are of the view that the Search-cum-Selection Committee as formulated under the Rules is an attempt to keep the judiciary away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals. This Court has been lucid in its ruling in Supreme Court Advocates- on-Record Assn. v. Union of India (2016) 5 SCC 1 (Fourth Judges Case), wherein it was held that primacy of judiciary is imperative in selection and appointment of judicial officers including Judges of High Court and Supreme Court. Cognisant of the doctrine of Separation of Powers, it is important that judicial appointments take place without any influence or control of any other limb of the sovereign. Independence of judiciary is the only means to maintain a system of checks and balances on the working of Legislature and the Executive. The Executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in judicial appointments158. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they. dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. (B) Qualifications of members and presiding officers161. The contentions of the Learned Counsel for petitioner(s) are, therefore, duly accepted by this Court insofar as it is contended that the Rules have an effect of dilution of the judicial character in adjudicatory positions. It has been repeatedly ruled by this Court in a catena of decisions that judicial functions cannot be performed by technical members devoid of any adjudicatory experienceIt is also a well-established principle followed throughout in various other jurisdictions as well, that wherever Parliament decides to divest the traditional Courts of their jurisdiction and transfer the lis to some other analogous Court/Tribunal, the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred. Adjudication of disputes which was originally vested in Judges of Courts, if done by technical or non-judicial member, is clearly a dilution and encroachment on judicial domain. With great respect, Parliament cannot divest judicial functions upon technical members, devoid of the either adjudicatory experience or legal knowledge164. It is necessary to notice few other changes brought about by the new Rules. Firstly, most Tribunals were earlier headed by judicial members. With the exception of some Tribunals like the Debt Recovery Tribunal, presiding officers were retired judges either of the Supreme Court or of High Courts. Under the present formulation of Rules, the Central Government has widened eligibility by making persons who otherwise have no judicial or legal experience but if they are otherwise of ability, integrity and standing, and having special knowledge of, and professional experience of certain specialised subjects which in the opinion of the Central Government is use ful eligible for being appointed as presiding officers. Further, others who are qualified to be Supreme Court and High Court judges can also head Tribunals. A perusal of Articles 124(3) and 217(2) of the Constitution shows that it specifies only the very minimum prerequisites for appointment as a judge of the Constitutional Courts. Instead, a predominant portion of the consideration for appointment to this Court or to the High Courts is uncodified and is based on a holistic consideration of the practice, legal acumen, expertise and character of Advocates. The effect of the new criteria would be to make every second advocate eligible, in effect, vastly diluting the qualifications for appointment. The characteristics necessary of such people are also vague which resultantly increases executive discretion. It thus affects both judicial independence as well as capability and competency of these Tribunals. The power/discretion vested to specify qualifications and decide who should man the Tribunals has to be exercised keeping in view the larger public interest and the same must be just, fair and reasonable and not vague or imprecise165. At this juncture it must also be reiterated that equality can only be amongst equals, and that it would be impermissible to treat unequals equally on the basis of undefined contours of Uniformity. A Tribunal to have the character of a quasi- judicial body and a legitimate replacement of Courts, must essentially possess a dominant judicial character through their members/presiding officers166. It appears to us to be incomprehensible as to how both Supreme Court and High Court judges can be eligible for the same post when their experience, exposure, knowledge and stature under the Constitution are vastly different and the two do not form one homogenous class. There can be no forced equality between the two. Doing so would be suggestive of non-application of mind. Such an exercise would merit judicial interference167. Further, dispensation of justice requires that the adjudicating institution command respect with the populace. Anomalous situations created by allowing High Court judges to be appointed to a position occupied earlier by a Supreme Court judge, affects the prestige of the Judiciary as an institution168. The stature of the people manning an institution lends credibility and colour to the institution itself. There is a perceptible signalling effect in having retired Supreme Court justices as presiding officers of a particular Tribunal of National importance. The same instils an inherent fairness, dignity and exalted status in the Tribunal. Permitting such institutions to be also occupied by persons who have not manned an equivalent position or those with lesser judicial experience, does not bode well for the Tribunal besides discouraging competent people from offering their services. On the same analogy, it would be an anathema to say that High Court judges and District Court judges can both occupy the same position in a Tribunal(C) Constitutionality of procedure of removal169. It is clear from the Scheme contemplated under the Rules that the government has significantly diluted the role of the Judiciary in appointment of judicial members. Further, in many Tribunals like the NGT, the role of the Judiciary in appointment of non-judicial members has entirely been taken away. Such a practice violates the Constitutional scheme and the dicta of this Court in various earlier decisions already referred to. It is also important to note that in many Tribunals like the National Green Tribunal where earlier removal of members or presiding officer could only be after an enquiry by Supreme Court Judges and with necessary consultation with the Chief Justice of India, under the present Rules it is permissible for the Central Government to appoint an enquiry committee for removal of any presiding officer or member on its own. The Rules are not explicit on who would be part of such a Committee and what would be the role of the Judiciary in the process. In doing so, it significantly weakens the independence of the Tribunal members. It is well understood across the world and also under our Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions170. In Madras Bar Association (2014) (supra), this Court held that:…it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or Country Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or Country Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service as were available to the Judges of the court sought to be substituted171. It is essential that the same be observed in letter and spirit and we therefore reiterate that Members and Presiding Officers of Tribunals cannot be removed without either the concurrence of the Judiciary or in the manner specified in the Constitution for Constitutional Court judges(C) Constitutionality of procedure of removal170. In Madras Bar Association (2014) (supra), this Court held that:…it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or Country Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or Country Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service as were available to the Judges of the court sought to be substituted171. It is essential that the same be observed in letter and spirit and we therefore reiterate that Members and Presiding Officers of Tribunals cannot be removed without either the concurrence of the Judiciary or in the manner specified in the Constitution for Constitutional Court judges(D) Term of Office and Maximum Age173. The Constitution of India doesnt differentiate between High Courts in terms of conditions of service of judges and prescribes a uniform age of superannuation for judges of all High Courts. Conforming to the principle, as held in earlier judgements of this Court, the Tribunals should have similar standards of appointment and service as that of the Court it is substituting. There must, therefore, be a uniform age of superannuation for all members in all the Tribunals174. The only differentiation in age of superannuation provided by the Constitution is that between judges of High Courts and Supreme Court. We find the reason for the same in the intention of the Constituent Assembly which aimed to incorporate the experience and knowledge of a High Court Judge when elevated as a Supreme Court judge. Hence, to utilise the experience and knowledge acquired during tenure as a judge of High Court, Supreme Court judges are provided with higher age of superannuation than the judges of High Court. Similarly, the difference between age of superannuation of Chairman/Presiding Officer and Member of a Tribunal is because Chairman/Presiding Officer is not a promotional post and thus cannot be equated with that of the Member. The post of Chairman/Presiding Officer requires judicial and administrative experience of at least that of the judge of a High Court which is evident from the statutes prescribing them175. Another oddity which was brought to our notice is that there has been an imposition of a short tenure of three years for the members of the Tribunals as enumerated in the Schedule of Tribunals Rules, 2017. A short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals. Furthermore, prescribing such short tenures precludes cultivation of adjudicatory experience and is thus injurious to the efficacy of Tribunals176. This Court criticised the imposition of short tenures of members of Tribunals in Union of India v. Madras Bar Association, (2010) (supra) and a longer tenure was recommended. It was observed that short tenures also discourage meritorious members of Bar to sacrifice their flourishing practice to join a Tribunal as a Member for a short tenure of merely three years. The tenure of Members of Tribunals as prescribed under the Schedule of the Rules is anti-merit and attempts to create equality between unequals. A tenure of three years may be suitable for a retired Judge of High Court or the Supreme Court or even in case of a judicial officer on deputation. However, it will be illusory to expect a practising advocate to forego his well-established practice to serve as a Member of a Tribunal for a period of three years. The legislature intended to incorporate uniformity in the administration of Tribunal by virtue of Section 184 of Finance Act, 2017. Nevertheless, such uniformity cannot be attained at the cost of discouraging meritorious candidates from being appointed as Members of Tribunals177. Additionally, the discretion accorded to the Central or State Government to reappoint members after retirement from one Tribunal to another discourages public faith in justice dispensation system which is akin to loss of one of the key limbs of the sovereign. Additionally, the short tenure of Members also increases interference by the Executive jeopardising the independence of judiciary178. In the light of the discussion as aforesaid, we hold that the Rules would require a second look since the extremely short tenure of the Members of Tribunals is anti-merit and has the effect of discouraging meritorious candidates to accept posts of Judicial Members in Tribunals(E) Contradictions in the Rules179. On the contentions of parties and in the light of the aforementioned discussion, the Bench has observed following contradictions in the(a) There is an inconsistency within the Rules with regard to the tenure prescribed for the Members of Tribunals insofar as a fixed tenure of three years for both direct appointments from the Bar and appointment of retired judicial officers or judges of High Court or Supreme Court. It is also discriminatory to the extent that it attempts to create equality between unequal classes. The tenure of Members, Vice-Chairman, Chairman, etc. must be increased with due consideration to the prior decisions of the Court(b) The difference in the age of superannuation of the Members, Vice- Chairmen and Chairmen, as formulated in the Rules is contrary to the objectives of the Finance Act, 2017 viz., to attain uniformity in the composition of the Tribunal framework. There should be a uniform age of superannuation for Members, Vice-Chairmen, Chairmen, etc. in all Tribunals(c) Rule 4(2) of the Rules providing that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee, is in direct violation of the doctrine of Separation of Powers and thus contravenes the basic structure of the Constitution. Corollary to the dictum of this Court in the Fourth Judges Case, judicial dominance in appointment of members of judiciary cannot be diluted by the Executive(d) Rule 7 accords unwarranted discretion to the Central Government insofar as it merely directs and not mandates the Central Government to consider the recommendation of Committee for removal of a Member of a Tribunal. The Central Government shall mandatorily consider the recommendation of the Committee before removal of any Member of Tribunal. Furthermore, the proviso to Rule 7 creates an unjust classification between National Company Law Appellate Tribunal (NCLAT) and other fora inasmuch as the removal of Chairperson or member of NCLAT alone is to be in consultation with the Chief Justice of India(e) Moral turpitude is a term well defined by this Court in numerous decisions. Rule 7(b) cannot be allowed to survive as it allows the Executive to interpret the meaning of moral turpitude, which is an encroachment on the judicial domain(f) The power of relaxation of rules with respect to any class of persons shall be vested with the Search-cum-Selection Committee and not with the Central Government as provided under Rule 20. As ruled by this Court earlier in Madras Bar Association (2014) (supra), the Central Government cannot be allowed to have administrative control over the Judiciary without subverting the doctrine of separation of powers183. This Court had earlier noted the statements of the Ld. Attorney General vide order dated 27 March 2019 in W.P. (C) No. 267/2012, wherein it was submitted that the Ministry of Law is already overburdened and cannot effectively perform the supervisory function, as a single nodal Ministry, for all the Tribunals, as was earlier suggested by this Court184. What appears to be of paramount importance is that every Tribunal must enjoy adequate financial independence for the purpose of its day to day functioning including the expenditure to be incurred on (a) recruitment of staff; (b) creation of infrastructure; (c) modernisation of infrastructure; (d) computerisation; (e) perquisites and other facilities admissible to the Presiding Authority or the Members of such Tribunal. It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and self- sustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals185. It was brought to our notice by the Learned Counsel for the petitioner(s) that there is an imminent need for conducting a Judicial Impact Assessment of all the Tribunals referable to the Finance Act, 2017. It was argued that neither the Legislature nor the Executive had conducted any assessment to analyse the adverse repercussions of the changes brought in the framework of Tribunals in India, if any, by the legislative exercises carried out from time to time186. The contentions of the petitioner(s) cannot be said to be unfounded. The three limbs of the State viz., the Legislature, the Executive and the Judiciary are so intertwined that there is a direct impact of the action of one limb on another. Every legislation results in an immediate increase in the number of pending litigations. It is the responsibility of the other branches of the State to be conscious of the limitations of the Judiciary in keeping pace with increasing pendency of litigation. Care has to be taken to ensure that while enhancing the efficacy of legislations the accrual of resultant litigation is minimal188. In the present case, we are of the view that the legislature has not conformed to the opinion of this Court with respect to Judicial Impact Assessment and thus, has not made any attempt to assess the ramifications of the Finance Act, 2017. It can be legitimately expected that the multifarious amendments in relation to merger and reorganisation of Tribunals may result in massive increase in litigation which, in absence of adequate infrastructure, or budgetary grants, will overburden the Judiciary189. In the fitness of things, we deem it appropriate to direct the Union of India to carry out financial impact assessment in respect of all the Tribunals referable to Sections 158 to 182 of the Finance Act, 2017 and undertake an exercise to assess the need based requirements and make available sufficient resources for each Tribunal established by the Parliament190. A concerning trend has been brought to the notice of this Court by the Learned Counsels. The Union has, in addition to equal pay and perks, accorded status equivalent to that of Supreme Court and High Court judges to Chairmen/Presidents of various Tribunals and authorities191. It is apposite to refer to the Warrant of Precedence which delineates the sequential hierarchy of functionaries which is used most often for formal ceremonial arrangements. Such enhancement of the status of certain officials is sans any rationale and falls squarely outside the Constitutional scheme. Although seemingly pedantic, according status equivalent or higher than Constitutional functionaries by executive order or by legislation strikes at the essence of the Constitutional dignity and stature accorded to such authorities. The absurdity of the situation can be demonstrated clearly if tomorrow a bureaucrat is accorded higher status than that of a Minister, who is the head of his department. Such designations do not have a personal value but rather represent the framework and structure of governance envisaged. Illogical changes or altercations hence disturbs the fabric of hierarchy and discipline necessary for the effective functioning of the State193. In light of the unequivocal assertions of a co-ordinate bench of this Court, there can be no doubt that executive action cannot confer status equivalent to that of either Supreme Court or High Court judges on any member or head of any Tribunal or other judicial fora194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323-B of the Constitution cannot seek equivalence with High Courts or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he/she no longer enjoys the Constitutional status, the statutory position occupied by him/her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme Justice VR Krishna Iyer, Why Stultify Judges Status?, (2002) 2 LW (JS) 85 (June, 2000)196. We would further point out that the Warrant of Precedence is a mere self- serving executive decision and not a law in itself. It is a reflection of the inter-se hierarchy amongst functionaries for the purposes of discharge of important ceremonial functions and other State duties. It cannot either confer rights or alter the status accorded by law. It would further be clearly abhorrent to use such an instrument to undermine the order of precedence clearly accorded under the Constitution197. It is hence essential that the Union of India, takes note of the observations of this Court herein and abide by the spirit of the Constitution in respecting the aforementioned difference between constitutional functionaries and statutory authorities. It is important for the Union of India to ensure that judges of High Courts and the Supreme Court are kept on a separate pedestal distanced from any other Tribunal or quasi-judicial Authority219. The seven-judge Constitution Bench in L. Chandra Kumar (supra) considered at great length the permissibility of altering the power of judicial review exercisable by High Courts under Article 226. It authoritatively held that all orders passed by Tribunals which have been established under Article 323A or 323B of the Constitution, shall be amenable to the writ jurisdiction of High Courts. This Court, however, in an attempt to respect the intent of facilitating speedy disposal expressed by the Parliament, directed that such orders of the Central Administrative Tribunals be heard by a Division Bench of the High Court if challenged under Article 226. This Court, thus, held:-91. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Courts writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls220. It is hence clear post L Chandrakumar (supra) that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226221. However, it is essential that High Courts use such powers of judicial review restrictively and on limited grounds, similar to the concept of regulatory deference which has evolved in the United States. Such a need was also noted by a nine- judge bench in Mafatlal Industries Ltd. vs. Union of India (1997) 5 SCC 536 which held that:… While the jurisdiction of the High Courts under Article 226—and of this Court under Article 32—cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason thatthe power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it222. The jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor diluted. Instead, it has to be zealously-protected and cannot be circumscribed by the provisions of any enactment, even if it be formulated for expeditious disposal and early finality of disputes. Further, High Courts are conscious enough to understand that such power must be exercised sparingly by them to ensure that they do not become alternate forums of appeal. A five-judge bench in Sangram Singh v. Election Tribunal(1955) 2 SCR 1 whilst reiterating that jurisdiction under Article 226 could not be ousted, laid down certain guidelines for exercise of such power:13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105223. It is apparent that the Legislature has not been provided with desired assistance so that it may rectify the anomalies which arise from provisions of direct appeal to the Supreme Court. Considering that such direct appeals have become serious impediments in the discharge of Constitutional functions by this Court and also affects access to justice for citizens, it is high time that the Union of India, in consultation with either the Law Commission or any other expert body, revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of Tribunals, and instead provide appeals to Division Benches of High Courts, if at all necessary. Doing so would have myriad benefits. In addition to increasing affordability of justice and more effective Constitutional adjudication by this Court, it would also provide an avenue for High Court Judges to keep face with contemporaneous evolutions in law, and hence enrich them with adequate experience before they come to this Court. We direct that the Union undertake such an exercise expeditiously, preferably within a period of six months at the maximum, and place the findings before Parliament for appropriate action as may be deemed fit224. While seeking a Judicial Impact Assessment of all existing Tribunals, counsels for petitioners/appellant(s) have underscored the exorbitant pendency before of a number of Tribunals like the CESTAT and ITAT, which they claim affects the very objective of tribunalisation. On the other hand, they also highlight an incongruity wherein numerous Tribunals are hardly seized of any matters, and are exclusively situated in one location225. As noted by this court on numerous occasions, including in Madras Bar Association (2014) (supra), although it is the prerogative of the Legislature to set up alternate avenues for dispute resolution to supplement the functioning of existing Courts, it is essential that such mechanisms are equally effective, competent and accessible. Given that jurisdiction of High Courts and District Courts is affected by the constitution of Tribunals, it is necessary that benches of the Tribunals be established across the country. However, owing to the small number of cases, many of these Tribunals do not have the critical mass of cases required for setting up of multiple benches. On the other hand, it is evident that other Tribunals are pressed for resources and personnel226. This imbalance in distribution of case-load and inconsistencies in nature, location and functioning of Tribunals require urgent attention. It is essential that after conducting a Judicial Impact Assessment as directed earlier, such niche Tribunals be amalgamated with others dealing with similar areas of law, to ensure effective utilisation of resources and to facilitate access to justice. | 1 | 20,662 | 9,992 | ### Instruction:
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Difficulties would arise with reference to sub- clauses (b), (c), (d) and (e) of Article 110(1), when we apply the principles of dominant or the main purpose of an enactment test. Sub-clause (c) to Article 110(1) refers to payment of monies into or withdrawal of monies from the Consolidated Fund of India. Sub-clause (d) refers to appropriation of monies out of the Consolidated Fund of India. Sub-clause (e) refers to declaration of any expenditure charged on the Consolidated Fund of India or increasing of the amount of such expenditure. Sub-clause (f) relates to receipt of money on account of Consolidated Fund of India or Public Account of India or issue of such money or the audit of the accounts of the Union or of State. Even clause (b) in its amplitude includes an amendment of the law in respect of a financial obligation undertaken or to be undertaken by the Government of India. Once we hold that the decision of the Speaker under clause (3) of Article 110 of the Constitution though final, is subject to judicial scrutiny on the principle of constitutional illegality, the provisions of Article 110(1) have to be given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness. Any interpretation would have far reaching consequences. It is therefore, necessary that there should be absolute clarity with regard to the provisions and any ambiguity and debate should be ironed out and affirmatively decided. In case of doubt, certainly the opinion of the Speaker would be conclusive, but that would not be a consideration to avoid answering and deciding the scope and ambit of Money Bill under Article 110(1) of the Constitution. For example, taxation enactments like the Income Tax Act would qualify as Money Bill under sub-clause (a) to clause (1) of Article 110 and may include provisions relating to Appellate Tribunals which would possibly qualify as incidental provisions covered under sub-clause (g) to clause (1) of Article 110, even if we exclude application of sub-clause (d) to clause (1) of Article 110. The position it could be argued would be different with reference to provisions for constitution of a tribunal under the Administrative Tribunal Act or the National Green Tribunal Act. The bill could however state that the expenditure would be charged on the Consolidated Fund of India. 119. Another aspect which would arise for consideration would be the legal consequences in case a Non-Money Bill certified by the Speaker as a Money Bill, when presented before the Rajya Sabha is specifically objected to on this count by some Members, but on being put to vote no recommendations are made in respect of Non-Money Bill related provisions. 120. The petitioners had argued on the strength of the concurring opinion by Ashok Bhushan, J. holding that in addition to at least one provision falling under Article 110(1) (a) to (f), each of the other remaining provisions must also be incidental to such core provision(s), and hence must satisfy the requirement of Article 110(g). Such an interpretation, it was contended, would make the insertion of the word only under the prefatory part of Article 110(1) purposeful, which was said to have been glossed over by the Union. Further, it was contended that the manner in which the majority correlated Section 7 of the Aadhaar Act to Article 110(1)(e) was erroneous, for it only regulated procedure for withdrawal by imposing a requirement for authentication and did not declare any expenditure to be a charge on the Consolidated Fund of India. They had contended that the interpretation of the enactment by the majority judgement was constitutionally inexact and that a similar analysis ought not to be made in the present case. The petitioners, therefore, contend that every impugned provision be individually examined and brought either under Article 110(1)(a) to (f) or be incidental thereto, as permitted by Article 110(g). In case even a single provision did not satisfy either of the aforementioned two categories, then the entire Finance Act, 2017 would be an affront to the prefatory phraseology of Article 110(1) and must be declared as being unconstitutional. 121. However, the learned Attorney General has propounded that constitutionality of the Finance Act, 2017 would be safe if its dominant provisions, which form the core of the enactment, fall within the ambit of Article 110(1)(a) to (f). Other minor provisions, even if not strictly incidental, could take the dominant colour and could be passed along with it as a Money Bill. As per such interpretation, provisions ought not to be read in a piece-meal manner, and judicial review ought to be applied deferentially. 122. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word only in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a Money Bill do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Courts satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches. 123. Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness.
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falls220. It is hence clear post L Chandrakumar (supra) that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226221. However, it is essential that High Courts use such powers of judicial review restrictively and on limited grounds, similar to the concept of regulatory deference which has evolved in the United States. Such a need was also noted by a nine- judge bench in Mafatlal Industries Ltd. vs. Union of India (1997) 5 SCC 536 which held that:… While the jurisdiction of the High Courts under Article 226—and of this Court under Article 32—cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason thatthe power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it222. The jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor diluted. Instead, it has to be zealously-protected and cannot be circumscribed by the provisions of any enactment, even if it be formulated for expeditious disposal and early finality of disputes. Further, High Courts are conscious enough to understand that such power must be exercised sparingly by them to ensure that they do not become alternate forums of appeal. A five-judge bench in Sangram Singh v. Election Tribunal(1955) 2 SCR 1 whilst reiterating that jurisdiction under Article 226 could not be ousted, laid down certain guidelines for exercise of such power:13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105223. It is apparent that the Legislature has not been provided with desired assistance so that it may rectify the anomalies which arise from provisions of direct appeal to the Supreme Court. Considering that such direct appeals have become serious impediments in the discharge of Constitutional functions by this Court and also affects access to justice for citizens, it is high time that the Union of India, in consultation with either the Law Commission or any other expert body, revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of Tribunals, and instead provide appeals to Division Benches of High Courts, if at all necessary. Doing so would have myriad benefits. In addition to increasing affordability of justice and more effective Constitutional adjudication by this Court, it would also provide an avenue for High Court Judges to keep face with contemporaneous evolutions in law, and hence enrich them with adequate experience before they come to this Court. We direct that the Union undertake such an exercise expeditiously, preferably within a period of six months at the maximum, and place the findings before Parliament for appropriate action as may be deemed fit224. While seeking a Judicial Impact Assessment of all existing Tribunals, counsels for petitioners/appellant(s) have underscored the exorbitant pendency before of a number of Tribunals like the CESTAT and ITAT, which they claim affects the very objective of tribunalisation. On the other hand, they also highlight an incongruity wherein numerous Tribunals are hardly seized of any matters, and are exclusively situated in one location225. As noted by this court on numerous occasions, including in Madras Bar Association (2014) (supra), although it is the prerogative of the Legislature to set up alternate avenues for dispute resolution to supplement the functioning of existing Courts, it is essential that such mechanisms are equally effective, competent and accessible. Given that jurisdiction of High Courts and District Courts is affected by the constitution of Tribunals, it is necessary that benches of the Tribunals be established across the country. However, owing to the small number of cases, many of these Tribunals do not have the critical mass of cases required for setting up of multiple benches. On the other hand, it is evident that other Tribunals are pressed for resources and personnel226. This imbalance in distribution of case-load and inconsistencies in nature, location and functioning of Tribunals require urgent attention. It is essential that after conducting a Judicial Impact Assessment as directed earlier, such niche Tribunals be amalgamated with others dealing with similar areas of law, to ensure effective utilisation of resources and to facilitate access to justice.
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HARI SANKARAN Vs. UNION OF INDIA | the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or any “other person concerned” and is required to take into consideration the representation, if any made. The “other person concerned” is as such not defined. Who can be said to be “other person concerned”, that question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is that “even if it is accepted that the appellant on receipt of notice wanted to file reply” cannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with. | 0[ds]9. On going through the order passed by the learned Tribunal passed under Section 130 of the Act, it appears that the learned Tribunal is conscious of the relevant provisions of the Act, more particularly Section 130 of the Companies Act and more particularly the conditions precedent to be complied with/satisfied while directing/permitting re¬opening of the books of accounts and re¬casting of the financial statements of the company. From the order passed by the learned Tribunal under Section 130 of the Companies Act, it appears that the learned Tribunal has considered the preliminary report submitted by the ICAI and SFIO and the observations made in the aforesaid reports/preliminary reports. That thereafter having satisfied that the conditions precedent for invoking powers under Section 130 of the Companies Act, stated in Section 130 (i) OR (ii) of the Companies Act are satisfied, thereafter the learned Tribunal has passed an order allowing the application under Section 130 of the Companies Act for re¬opening the books of accounts and re¬ casting the financial statements of IL&FS and other two companies, viz, for the last 5 years.10. While assailing the order passed by the Tribunal under Section 130 of the Act, it is vehemently submitted on behalf of the appellant, who as such is a suspended director of the company that there is no specific finding recorded by the learned Tribunal that (i) the relevant earlier accounts were prepared in a fraudulent manner; and (ii) the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements. It is the case on behalf of the appellant that in the order dated 01.01.2019 passed under Section 130 of the Companies Act, learned Tribunal has specifically given a finding that the alleged accounts of the companies cannot be said to have been prepared in a fraudulent manner. However, it is required to be noted that the aforesaid observations by the Tribunal are required to be considered in the context for which the observations are made. It appears that the said observations are made with respect to role of the auditors. It is to be noted that in the same para, the learned Tribunal has specifically observed that in the earlier order dated 01.10.2018, it is observed that the affairs of the company were mismanaged during the relevant period and that the affairs of the company and subsidiary companies were being mismanaged during the relevant period, as contemplated under Sub¬Section (1) and (2). At this stage, it is required to be noted that as per Section 130 of the Act, the Tribunal may pass an order of re¬opening of accounts if the Tribunal is of the opinion that (i) the relevant earlier accounts were prepared in a fraudulent manner; OR (ii) the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements. Therefore, the word used isTherefore, if either of the conditions precedent is satisfied, the Tribunal would be justified in passing the order under Section 130 of the Act. Considering the order passed by the Tribunal passed under Section 130 of the Companies Act, it appears that the learned Tribunal has passed the order on being satisfied with respect to the second part of Section 130 of the Companies Act. It is also required to be noted that the learned Tribunal has also taken note of the preliminary report submitted by the ICAI with respect to the earlier accounts were being prepared in a fraudulent manner. On a fair reading of Section 130 of the Companies Act, if the Tribunal is satisfied that either of the conditions precedent is satisfied, the Tribunal would be justified in passing the order under Section 130 of the Companies Act.11. Considering the facts narrated hereinabove and the preliminary reports of SFIO and ICAI which came to be considered by the learned Tribunal and considering the specific observations made by the learned Tribunal while passing the order under Section 241/242 of the Companies Act and considering the fact that the Central Government has entrusted the investigation of the affairs of the company to SFIO in exercise of powers under Section 242 of the Companies Act, it cannot be said that the conditions precedent while invoking the powers under Section 130 of the Act are not satisfied. We are more than satisfied that in the facts and circumstances of the case, narrated hereinabove, and also in the larger public interest and when thousands of crores of public money is involved, the Tribunal is justified in allowing the application under Section 130 of the Companies Act, which was submitted by the Central Government as provided under Section 130 of the Companies Act.12. Now so far as the submission on behalf of the appellant that all the three provisions, viz., Section 130, Sections 211/212 and Sections 241/242 operate in different fields and in different circumstances and they are in the different Chapters and therefore any observation made while passing the order/orders with respect to a particular provision may not be considered while passing the order under relevant provisions is concerned, it is required to be noted that all the three provisions are required to be considered conjointly. While passing an order in a particular provision, the endeavour should be to see that the order/orders passed under other provisions of the Companies Act are given effect to, and/or in furtherance of the order/orders passed under other Sections. Therefore, the observations made while passing order under Section 241/242 of the Companies Act can be said to be relevant observations for passing the order under Section 130 of the Companies Act. At this stage, it is required to be noted that even otherwise in the order passed by the Tribunal under Section 130 of the Companies Act, there is a specific observation made by the learned Tribunal with respect to mismanagement of the affairs of the company, and even with respect to the relevant earlier accounts prepared in a fraudulent manner.13. It is next contended on behalf of the appellant that proviso to Section 130 of the Act has not been complied with and that the order passed by the learned Tribunal passed under Section 130 of the Act is in violation of the principle of natural justice. At the outset, it is required to be noted that while passing he order under Section 130 of the Companies Act, the learned counsel appearing on behalf of the erstwhile directors appeared and opposed the application under Section 130 of the Companies Act. Therefore, the learned counsel appearing on behalf of the erstwhile directors was heard before passing he order under Section 130 of the Companies Act. Therefore, it can be said that there is a compliance/substantial compliance of the principle of natural justice to be followed. It is required to be noted that as per proviso to Section 130 of the Companies Act before passing the order under Section 130 of the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or anyand is required to take into consideration the representation, if any made. Theis as such not defined. Who can be said to bethat question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is thatif it is accepted that the appellant on receipt of notice wanted to filecannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with. | 0 | 8,649 | 2,302 | ### Instruction:
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the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or any “other person concerned” and is required to take into consideration the representation, if any made. The “other person concerned” is as such not defined. Who can be said to be “other person concerned”, that question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is that “even if it is accepted that the appellant on receipt of notice wanted to file reply” cannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with.
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proviso to Section 130 of the Companies Act before passing the order under Section 130 of the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or anyand is required to take into consideration the representation, if any made. Theis as such not defined. Who can be said to bethat question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is thatif it is accepted that the appellant on receipt of notice wanted to filecannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with.
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ORIENTAL INSURANCE COMPANY LTD Vs. NATIONAL BULK HANDLING CORPORATION PVT. LTD | claim is covered by the insurance policy. It is submitted that after filing of the complaint, when the claim is repudiated, such rejection order also is questioned by way of amendment. It is submitted that when the impugned order is read in entirety with regard to urad and mentha oil, it is clear that the warehouse Supervisor Mr. Narender Yadav and security guard Mr. Ram Singh were involved in removal/substitution of mentha oil with water. 7. Learned counsel by taking us to the survey report, has also submitted that the survey report itself indicates for prosecuting borrowers as well as employees of the respondent, as such, there is no basis for the allegation of the appellant that employees were not involved. It is submitted that when it has come to light that mentha oil was substituted by water, 100 per cent sampling was undertaken, which was completed on 12.11.2008 and the investigation report was submitted to the respondent-complainant on 14.11.2008 and the matter was reported to the insurer on 18.11.2008, as such, there is no violation of condition no.1 of the policy. Learned counsel, explaining the scope of Fidelity Guarantee Insurance Policy, has placed reliance on a judgment of this Court, in the case of Food Corporation of India Vs. New India Assurance Co. Ltd. and Others (1994) 3 SCC 324 and a recent judgment of this Court dated 24.01.2020, in the case of Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. C.A. No. 653 of 2020. 8. Upon hearing the learned counsels on both sides and on perusal of the impugned order and other material placed on record, we do not find any merit in any of the contentions advanced by learned counsel for the appellant. The aforesaid judgments relied on by learned counsel for the respondent, though relate to insurance claims, but the issues decided in the aforesaid judgments, have no direct bearing on the issues which arise for consideration in this case. 9. It is not in dispute that the insurance policy for fidelity guarantee was in force during the relevant time, which was obtained by the respondent-complainant. Fidelity Guarantee is different from contingency guarantee. The insurance under it, is for honesty, against negligence or for being faithful and loyal to its employees. The protection afforded is different than in normal insurance policies. Precisely, it is a contract whereby, for a consideration, one agrees to indemnify another, against loss, arising from the breach of honesty, integrity or fidelity of an employee or other person holding a position of trust. In Blacks Law Dictionary, fidelity insurance is explained as under: Fidelity Insurance- Form of insurance in which the insurer undertakes to guarantee the fidelity of an officer, agent or employee of the assured or rather to indemnify the latter for losses caused by dishonesty or a want of fidelity on the part of such person. As such, the insurance policy of fidelity guarantee is to be construed as a policy, intended to protect the assured against the contingency of a breach of fidelity on the part of a person in whom confidence has been placed. 10. The impugned order is assailed mainly on the ground that the respondent has failed to prove involvement of any of the employees of the respondent- Company, as such, there cannot be any liability on the appellant-insurance company. It is not in dispute that the pledged goods of 601 barrels of mentha oil was stored in the warehouse. The survey report dated 26.03.2009, itself indicates the involvement of employees of the respondent-Company in removing 601 barrels of mentha oil stored by the respondent-Company. Immediately, after confirmation and 100 per cent sampling, it was disclosed that in all the barrels, the mentha oil was substituted with water, a complaint was lodged by the respondent-complainant on 18.11.2008 before the Gadarpur Police Station. In the complaint filed, specific allegation is made about involvement of staff of the respondent-Company. 11. There is a specific observation in the survey report that the security guard of the respondent- Company had allowed Mr. Sanjeev Chhabra(owner) to lift the stock. Referring to the complaint made by the respondent-Company to the Police, a request is made to take action against owners as well as the employees namely Mr. Narender Singh Yadav, who was the Warehouse Supervisor, Cluster Head Mr. Anil Saxena, Warehouse Executive Mr. Aneesh Mohd. and Security Guard Mr. Ram Singh for committing crime under various Sections of the Indian Penal Code. If the entire material is taken into consideration, it is clear that there is a clear involvement of the employees of respondent and other contract employees in substituting the mentha oil barrels with water. It is also argued by learned counsel for the appellant that during the inspection, seals were found to be intact but it does not make any difference in as much as 100 per cent sampling proved that all barrels which were earlier filled with mentha oil, were substituted with water. 12. There is yet another contention advanced by learned counsel for the appellant that there was a delay in lodging the complaint, as such, it is in violation of condition no.1 of the contract of insurance. It is clear from the impugned order and other material placed on record, when it has come to the notice of the respondent, that mentha oil was substituted by water in the barrels, respondent undertook 100 per cent sampling, by sending the samples drawn from the barrels to the laboratory and such sampling was completed only on 12.11.2008 and the investigation report came to be submitted to the respondent-Company on 14.11.2008. Before that respondents were not aware of mentha oil substituted by water in all the barrels. Thereafter, claim was made before the appellant on 18.11.2008. 13. In that view of the matter, it cannot be said that there is any delay on the part of the respondent in lodging the claim, so as to accept that there is breach of condition no. 1 of the policy. | 0[ds]8. Upon hearing the learned counsels on both sides and on perusal of the impugned order and other material placed on record, we do not find any merit in any of the contentions advanced by learned counsel for the appellant. The aforesaid judgments relied on by learned counsel for the respondent, though relate to insurance claims, but the issues decided in the aforesaid judgments, have no direct bearing on the issues which arise for consideration in this case9. It is not in dispute that the insurance policy for fidelity guarantee was in force during the relevant time, which was obtained by the respondent-complainant. Fidelity Guarantee is different from contingency guarantee. The insurance under it, is for honesty, against negligence or for being faithful and loyal to its employees. The protection afforded is different than in normal insurance policies. Precisely, it is a contract whereby, for a consideration, one agrees to indemnify another, against loss, arising from the breach of honesty, integrity or fidelity of an employee or other person holding a position of trust10. The impugned order is assailed mainly on the ground that the respondent has failed to prove involvement of any of the employees of the respondent- Company, as such, there cannot be any liability on the appellant-insurance company. It is not in dispute that the pledged goods of 601 barrels of mentha oil was stored in the warehouse. The survey report dated 26.03.2009, itself indicates the involvement of employees of the respondent-Company in removing 601 barrels of mentha oil stored by the respondent-Company. Immediately, after confirmation and 100 per cent sampling, it was disclosed that in all the barrels, the mentha oil was substituted with water, a complaint was lodged by the respondent-complainant on 18.11.2008 before the Gadarpur Police Station. In the complaint filed, specific allegation is made about involvement of staff of the respondent-Company. If the entire material is taken into consideration, it is clear that there is a clear involvement of the employees of respondent and other contract employees in substituting the mentha oil barrels with waterIt is clear from the impugned order and other material placed on record, when it has come to the notice of the respondent, that mentha oil was substituted by water in the barrels, respondent undertook 100 per cent sampling, by sending the samples drawn from the barrels to the laboratory and such sampling was completed only on 12.11.2008 and the investigation report came to be submitted to the respondent-Company on 14.11.2008. Before that respondents were not aware of mentha oil substituted by water in all the barrels. Thereafter, claim was made before the appellant on 18.11.200813. In that view of the matter, it cannot be said that there is any delay on the part of the respondent in lodging the claim, so as to accept that there is breach of condition no. 1 of the policy. | 0 | 2,188 | 530 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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claim is covered by the insurance policy. It is submitted that after filing of the complaint, when the claim is repudiated, such rejection order also is questioned by way of amendment. It is submitted that when the impugned order is read in entirety with regard to urad and mentha oil, it is clear that the warehouse Supervisor Mr. Narender Yadav and security guard Mr. Ram Singh were involved in removal/substitution of mentha oil with water. 7. Learned counsel by taking us to the survey report, has also submitted that the survey report itself indicates for prosecuting borrowers as well as employees of the respondent, as such, there is no basis for the allegation of the appellant that employees were not involved. It is submitted that when it has come to light that mentha oil was substituted by water, 100 per cent sampling was undertaken, which was completed on 12.11.2008 and the investigation report was submitted to the respondent-complainant on 14.11.2008 and the matter was reported to the insurer on 18.11.2008, as such, there is no violation of condition no.1 of the policy. Learned counsel, explaining the scope of Fidelity Guarantee Insurance Policy, has placed reliance on a judgment of this Court, in the case of Food Corporation of India Vs. New India Assurance Co. Ltd. and Others (1994) 3 SCC 324 and a recent judgment of this Court dated 24.01.2020, in the case of Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. C.A. No. 653 of 2020. 8. Upon hearing the learned counsels on both sides and on perusal of the impugned order and other material placed on record, we do not find any merit in any of the contentions advanced by learned counsel for the appellant. The aforesaid judgments relied on by learned counsel for the respondent, though relate to insurance claims, but the issues decided in the aforesaid judgments, have no direct bearing on the issues which arise for consideration in this case. 9. It is not in dispute that the insurance policy for fidelity guarantee was in force during the relevant time, which was obtained by the respondent-complainant. Fidelity Guarantee is different from contingency guarantee. The insurance under it, is for honesty, against negligence or for being faithful and loyal to its employees. The protection afforded is different than in normal insurance policies. Precisely, it is a contract whereby, for a consideration, one agrees to indemnify another, against loss, arising from the breach of honesty, integrity or fidelity of an employee or other person holding a position of trust. In Blacks Law Dictionary, fidelity insurance is explained as under: Fidelity Insurance- Form of insurance in which the insurer undertakes to guarantee the fidelity of an officer, agent or employee of the assured or rather to indemnify the latter for losses caused by dishonesty or a want of fidelity on the part of such person. As such, the insurance policy of fidelity guarantee is to be construed as a policy, intended to protect the assured against the contingency of a breach of fidelity on the part of a person in whom confidence has been placed. 10. The impugned order is assailed mainly on the ground that the respondent has failed to prove involvement of any of the employees of the respondent- Company, as such, there cannot be any liability on the appellant-insurance company. It is not in dispute that the pledged goods of 601 barrels of mentha oil was stored in the warehouse. The survey report dated 26.03.2009, itself indicates the involvement of employees of the respondent-Company in removing 601 barrels of mentha oil stored by the respondent-Company. Immediately, after confirmation and 100 per cent sampling, it was disclosed that in all the barrels, the mentha oil was substituted with water, a complaint was lodged by the respondent-complainant on 18.11.2008 before the Gadarpur Police Station. In the complaint filed, specific allegation is made about involvement of staff of the respondent-Company. 11. There is a specific observation in the survey report that the security guard of the respondent- Company had allowed Mr. Sanjeev Chhabra(owner) to lift the stock. Referring to the complaint made by the respondent-Company to the Police, a request is made to take action against owners as well as the employees namely Mr. Narender Singh Yadav, who was the Warehouse Supervisor, Cluster Head Mr. Anil Saxena, Warehouse Executive Mr. Aneesh Mohd. and Security Guard Mr. Ram Singh for committing crime under various Sections of the Indian Penal Code. If the entire material is taken into consideration, it is clear that there is a clear involvement of the employees of respondent and other contract employees in substituting the mentha oil barrels with water. It is also argued by learned counsel for the appellant that during the inspection, seals were found to be intact but it does not make any difference in as much as 100 per cent sampling proved that all barrels which were earlier filled with mentha oil, were substituted with water. 12. There is yet another contention advanced by learned counsel for the appellant that there was a delay in lodging the complaint, as such, it is in violation of condition no.1 of the contract of insurance. It is clear from the impugned order and other material placed on record, when it has come to the notice of the respondent, that mentha oil was substituted by water in the barrels, respondent undertook 100 per cent sampling, by sending the samples drawn from the barrels to the laboratory and such sampling was completed only on 12.11.2008 and the investigation report came to be submitted to the respondent-Company on 14.11.2008. Before that respondents were not aware of mentha oil substituted by water in all the barrels. Thereafter, claim was made before the appellant on 18.11.2008. 13. In that view of the matter, it cannot be said that there is any delay on the part of the respondent in lodging the claim, so as to accept that there is breach of condition no. 1 of the policy.
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8. Upon hearing the learned counsels on both sides and on perusal of the impugned order and other material placed on record, we do not find any merit in any of the contentions advanced by learned counsel for the appellant. The aforesaid judgments relied on by learned counsel for the respondent, though relate to insurance claims, but the issues decided in the aforesaid judgments, have no direct bearing on the issues which arise for consideration in this case9. It is not in dispute that the insurance policy for fidelity guarantee was in force during the relevant time, which was obtained by the respondent-complainant. Fidelity Guarantee is different from contingency guarantee. The insurance under it, is for honesty, against negligence or for being faithful and loyal to its employees. The protection afforded is different than in normal insurance policies. Precisely, it is a contract whereby, for a consideration, one agrees to indemnify another, against loss, arising from the breach of honesty, integrity or fidelity of an employee or other person holding a position of trust10. The impugned order is assailed mainly on the ground that the respondent has failed to prove involvement of any of the employees of the respondent- Company, as such, there cannot be any liability on the appellant-insurance company. It is not in dispute that the pledged goods of 601 barrels of mentha oil was stored in the warehouse. The survey report dated 26.03.2009, itself indicates the involvement of employees of the respondent-Company in removing 601 barrels of mentha oil stored by the respondent-Company. Immediately, after confirmation and 100 per cent sampling, it was disclosed that in all the barrels, the mentha oil was substituted with water, a complaint was lodged by the respondent-complainant on 18.11.2008 before the Gadarpur Police Station. In the complaint filed, specific allegation is made about involvement of staff of the respondent-Company. If the entire material is taken into consideration, it is clear that there is a clear involvement of the employees of respondent and other contract employees in substituting the mentha oil barrels with waterIt is clear from the impugned order and other material placed on record, when it has come to the notice of the respondent, that mentha oil was substituted by water in the barrels, respondent undertook 100 per cent sampling, by sending the samples drawn from the barrels to the laboratory and such sampling was completed only on 12.11.2008 and the investigation report came to be submitted to the respondent-Company on 14.11.2008. Before that respondents were not aware of mentha oil substituted by water in all the barrels. Thereafter, claim was made before the appellant on 18.11.200813. In that view of the matter, it cannot be said that there is any delay on the part of the respondent in lodging the claim, so as to accept that there is breach of condition no. 1 of the policy.
|
Godhra Electricity Co. Ltd. & Anr Vs. The State Of Gujarat And Another | payment of the purchase price.26. In support of the contention that when once the notice exercising the option to purchase the undertaking has been served, the licensee has no further right to carry on the business the learned Additional Solicitor General placed reliance on the decision of this Court in Kalyan Singh v. State of U. P., (1962) Supp (2) SCR 76 = (AIR 1962 SC 1183 ) where this Court said that if a scheme has become final under Section 68-D (3) of the Motor Vehicles Act, it has the effect of extinguishing all the rights of an operator to ply his stage carriage under the permit.27. A licensee cannot be told that he has no right to carry on the business unless a valid purchase is made at the expiry of the period. If the licensee cannot be required to sell the undertaking without payment of the purchase price at the time of delivery of the undertaking or without a provision in law for payment of interest on the purchase price during the period when payment is withheld, there would be no valid termination of the licence. It is unreasonable to require a licensee to deliver the undertaking without payment to him of the purchase price or, if the payment is deferred, without compensating him by way of interest for the period during which the payment has been withheld. The fact that an arbitrator is seized of the question of the determination of the purchase price and that he is bound to make the award within a specified time in law would not mean that the licensee need not be compensated for the delay in payment of the purchase price. The proviso to Section 7(ii) makes it clear that when an undertaking is sold or delivered to the Electricity Board or to the State, the licence shall cease to have any further operation. When the proviso talks of sale and delivery, it means a valid sale or a valid delivery. Admittedly, the undertaking belonged to the licensee and if delivery of the undertaking is to be taken by the State Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will not cease to have operation and the licensee will be entitled to carry on the business.28. If the arbitrator could have awarded the interest for the period between the date of delivery of the undertaking and the payment of the purchase price, probably it could have been said that the provision for delivery without payment of the purchase price would not be unreasonable. But, to deprive the licensee of his undertaking without payment of the purchase price and then ask him or it to go to a court to enforce the liability for interest for the period for which the purchase price has been withheld is unreasonable. We hold that Section 6 (6) violates the fundamental right under Article 19 (1) (g) and 19 (1) (f) of the 2nd appellant.29. The undertaking, no doubt, belonged to the 1st appellant, a corporation. Not being a citizen, it has no fundamental right under Article 19. The 2nd appellant is a shareholder and the Managing Director of the Company. If his right to carry on the business through the agency of the Company is taken away or abridged, Or, his right to a divisible share in future of the property of the company is diminished or abridged in taking delivery of the undertaking without payment of the purchase price, there is no reason why he should be disabled from challenging the validity of the sub-section.30. In R. C. Cooper v. Union of India, (1970) 3 SCR 530 at p. 556 = (AIR 1970 SC 564 at p. 585) this Court said :Jurisdiction of the Court to grant relief cannot he denied, when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the Company as well. The test in determining whether the shareholders right is impaired is not formal it is essentially qualitative : if the State action impairs the right of the shareholders as well as to the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief."31. The second appellant contends that the value of his investment in the Company is substantially reduced by the illegal delivery of the undertaking to the Board, that his right to carry on the business of supplying electricity through the agency of the Company is abridged and that he, along with the other shareholders are left with the burden of the debts of the undertaking.32. In Bennett Coleman and Co. v. Union of India. (1973) 2 SCR 757 at p. 773 = (AIR 1973 SC 106 at p. 115) one of us, Ray, J., as he then was, speaking for the majority said :"As a result of the Bank Nationalisation case (1970) 3 SCR 530 = (AIR 1970 SC 564 ) (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to forth a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that tile shareholders rights are equally and necessarily affected if the rights of the company are affected."33. We think the second appellant is entitled to challenge the validity of the sub-section on the ground that it abridged his fundamental right under Arts. 19 (1) (g) and 19 (1) (f). | 1[ds]We have already seen that Rule 18 provides that the date of the notification shall be deemed to be the date of commencement of the licence. We have to read clause 2 (e) of the licence in the light of the provisions of Rule 18. Therefore, there is nothing strange in making the date of the notification in the Gazette that the licence has been granted, though anterior in point of time to the date of signing the licence, as the date of commencement of the licence. In other words, clause 2 (e) of the licence will have to be read in harmony with Rule 18 and if so read, it will be found that the date of the notification is only deemed to be the date of the commencement of the licence.In the process of interpretation of the terms of a contract, the Court can frequently get great assistance from the interpreting statements made by the parties themselves or from their conduct in rendering or in receiving performance under it. Parties can, by mutual agreement, make their own contracts, they can also by mutual agreement, remake them. The process of practical interpretation and application, however, is not regarded by the parties as a remaking of the contract; nor do the courts so regard it. Instead, it is merely a further expression by the parties of the meaning that they give and have given to the terms of their contract previously made. There is no good reason why the courts should not give great weight to these further expressions by the parties. In view of the fact that they still have the same freedom of contract that they had originally. The American Courts receive subsequent actings as admissible guides in interpretation. It is true that one party cannot build up his case by making an interpretation in his own favour. It is the concurrence therein that such a party can use against the other party. This concurrence may be evidenced by the other partys express assent thereto, by his acting in accordance with it, by his receipt without objection of performances that indicate it, or by saying nothing when he knows that the first party is acting on reliance upon theWe are not certain that if evidence of subsequent acting under a document is admissible, it might have the result that a contract would mean one thing on the day it is signed but by reason of subsequent event it would mean something a month or year later. Subsequent interpreting statements might not always change the meaning of a word or a phrase. A word or a phrase is not always crystal clear. When both parties subsequently say that by the word or phrase which, in the context, is ambiguous, they meant this, it only supplies a glossary as to the meaning of the word or phrase. After all. the inquiry is as to what the intention of the parties was from the language used. And, why is it that parties cannot clear the latent ambiguity in the language by a subsequent interpreting statement ? If the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have concurred should be admissible. The parties themselves might not have been clear as to the meaning of the word or phrase when they entered into the contract.Unanticipated situation might arise or come into the contemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should not be shut out. In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible.An arbitrator appointed under the section to determine the quantum of the purchase price can pass an award only in accordance with the terms of Sec. 7-A. Section 7-A provides that where an undertaking of a licensee is sold, the purchase price of the undertaking shall be the market value of the undertaking at the time of the purchase or, where the undertaking has been delivered before purchase under sub-section (3) of S. 5, at the time of the delivery of the undertaking and if there is any difference or dispute regarding such purchase price, the same shall be determined by the arbitrator. There is, therefore, no provision, which enables the arbitrator to award any interest on the market value of the undertaking at the time of the purchase merely because the market value is determined on a subsequent date.A licensee cannot be told that he has no right to carry on the business unless a valid purchase is made at the expiry of the period. If the licensee cannot be required to sell the undertaking without payment of the purchase price at the time of delivery of the undertaking or without a provision in law for payment of interest on the purchase price during the period when payment is withheld, there would be no valid termination of the licence. It is unreasonable to require a licensee to deliver the undertaking without payment to him of the purchase price or, if the payment is deferred, without compensating him by way of interest for the period during which the payment has been withheld. The fact that an arbitrator is seized of the question of the determination of the purchase price and that he is bound to make the award within a specified time in law would not mean that the licensee need not be compensated for the delay in payment of the purchase price. The proviso to Section 7(ii) makes it clear that when an undertaking is sold or delivered to the Electricity Board or to the State, the licence shall cease to have any further operation. When the proviso talks of sale and delivery, it means a valid sale or a valid delivery. Admittedly, the undertaking belonged to the licensee and if delivery of the undertaking is to be taken by the State Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will not cease to have operation and the licensee will be entitled to carry on the business.The undertaking, no doubt, belonged to the 1st appellant, a corporation. Not being a citizen, it has no fundamental right under Article 19. The 2nd appellant is a shareholder and the Managing Director of the Company. If his right to carry on the business through the agency of the Company is taken away or abridged, Or, his right to a divisible share in future of the property of the company is diminished or abridged in taking delivery of the undertaking without payment of the purchase price, there is no reason why he should be disabled from challenging the validity of the sub-section.The second appellant contends that the value of his investment in the Company is substantially reduced by the illegal delivery of the undertaking to the Board, that his right to carry on the business of supplying electricity through the agency of the Company is abridged and that he, along with the other shareholders are left with the burden of the debts of the undertaking.We think the second appellant is entitled to challenge the validity of the sub-section on the ground that it abridged his fundamental right under Arts. 19 (1) (g) and 19 (1) (f). | 1 | 6,483 | 1,380 | ### 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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payment of the purchase price.26. In support of the contention that when once the notice exercising the option to purchase the undertaking has been served, the licensee has no further right to carry on the business the learned Additional Solicitor General placed reliance on the decision of this Court in Kalyan Singh v. State of U. P., (1962) Supp (2) SCR 76 = (AIR 1962 SC 1183 ) where this Court said that if a scheme has become final under Section 68-D (3) of the Motor Vehicles Act, it has the effect of extinguishing all the rights of an operator to ply his stage carriage under the permit.27. A licensee cannot be told that he has no right to carry on the business unless a valid purchase is made at the expiry of the period. If the licensee cannot be required to sell the undertaking without payment of the purchase price at the time of delivery of the undertaking or without a provision in law for payment of interest on the purchase price during the period when payment is withheld, there would be no valid termination of the licence. It is unreasonable to require a licensee to deliver the undertaking without payment to him of the purchase price or, if the payment is deferred, without compensating him by way of interest for the period during which the payment has been withheld. The fact that an arbitrator is seized of the question of the determination of the purchase price and that he is bound to make the award within a specified time in law would not mean that the licensee need not be compensated for the delay in payment of the purchase price. The proviso to Section 7(ii) makes it clear that when an undertaking is sold or delivered to the Electricity Board or to the State, the licence shall cease to have any further operation. When the proviso talks of sale and delivery, it means a valid sale or a valid delivery. Admittedly, the undertaking belonged to the licensee and if delivery of the undertaking is to be taken by the State Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will not cease to have operation and the licensee will be entitled to carry on the business.28. If the arbitrator could have awarded the interest for the period between the date of delivery of the undertaking and the payment of the purchase price, probably it could have been said that the provision for delivery without payment of the purchase price would not be unreasonable. But, to deprive the licensee of his undertaking without payment of the purchase price and then ask him or it to go to a court to enforce the liability for interest for the period for which the purchase price has been withheld is unreasonable. We hold that Section 6 (6) violates the fundamental right under Article 19 (1) (g) and 19 (1) (f) of the 2nd appellant.29. The undertaking, no doubt, belonged to the 1st appellant, a corporation. Not being a citizen, it has no fundamental right under Article 19. The 2nd appellant is a shareholder and the Managing Director of the Company. If his right to carry on the business through the agency of the Company is taken away or abridged, Or, his right to a divisible share in future of the property of the company is diminished or abridged in taking delivery of the undertaking without payment of the purchase price, there is no reason why he should be disabled from challenging the validity of the sub-section.30. In R. C. Cooper v. Union of India, (1970) 3 SCR 530 at p. 556 = (AIR 1970 SC 564 at p. 585) this Court said :Jurisdiction of the Court to grant relief cannot he denied, when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the Company as well. The test in determining whether the shareholders right is impaired is not formal it is essentially qualitative : if the State action impairs the right of the shareholders as well as to the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief."31. The second appellant contends that the value of his investment in the Company is substantially reduced by the illegal delivery of the undertaking to the Board, that his right to carry on the business of supplying electricity through the agency of the Company is abridged and that he, along with the other shareholders are left with the burden of the debts of the undertaking.32. In Bennett Coleman and Co. v. Union of India. (1973) 2 SCR 757 at p. 773 = (AIR 1973 SC 106 at p. 115) one of us, Ray, J., as he then was, speaking for the majority said :"As a result of the Bank Nationalisation case (1970) 3 SCR 530 = (AIR 1970 SC 564 ) (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to forth a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that tile shareholders rights are equally and necessarily affected if the rights of the company are affected."33. We think the second appellant is entitled to challenge the validity of the sub-section on the ground that it abridged his fundamental right under Arts. 19 (1) (g) and 19 (1) (f).
### Response:
1
### Explanation:
still have the same freedom of contract that they had originally. The American Courts receive subsequent actings as admissible guides in interpretation. It is true that one party cannot build up his case by making an interpretation in his own favour. It is the concurrence therein that such a party can use against the other party. This concurrence may be evidenced by the other partys express assent thereto, by his acting in accordance with it, by his receipt without objection of performances that indicate it, or by saying nothing when he knows that the first party is acting on reliance upon theWe are not certain that if evidence of subsequent acting under a document is admissible, it might have the result that a contract would mean one thing on the day it is signed but by reason of subsequent event it would mean something a month or year later. Subsequent interpreting statements might not always change the meaning of a word or a phrase. A word or a phrase is not always crystal clear. When both parties subsequently say that by the word or phrase which, in the context, is ambiguous, they meant this, it only supplies a glossary as to the meaning of the word or phrase. After all. the inquiry is as to what the intention of the parties was from the language used. And, why is it that parties cannot clear the latent ambiguity in the language by a subsequent interpreting statement ? If the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have concurred should be admissible. The parties themselves might not have been clear as to the meaning of the word or phrase when they entered into the contract.Unanticipated situation might arise or come into the contemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should not be shut out. In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible.An arbitrator appointed under the section to determine the quantum of the purchase price can pass an award only in accordance with the terms of Sec. 7-A. Section 7-A provides that where an undertaking of a licensee is sold, the purchase price of the undertaking shall be the market value of the undertaking at the time of the purchase or, where the undertaking has been delivered before purchase under sub-section (3) of S. 5, at the time of the delivery of the undertaking and if there is any difference or dispute regarding such purchase price, the same shall be determined by the arbitrator. There is, therefore, no provision, which enables the arbitrator to award any interest on the market value of the undertaking at the time of the purchase merely because the market value is determined on a subsequent date.A licensee cannot be told that he has no right to carry on the business unless a valid purchase is made at the expiry of the period. If the licensee cannot be required to sell the undertaking without payment of the purchase price at the time of delivery of the undertaking or without a provision in law for payment of interest on the purchase price during the period when payment is withheld, there would be no valid termination of the licence. It is unreasonable to require a licensee to deliver the undertaking without payment to him of the purchase price or, if the payment is deferred, without compensating him by way of interest for the period during which the payment has been withheld. The fact that an arbitrator is seized of the question of the determination of the purchase price and that he is bound to make the award within a specified time in law would not mean that the licensee need not be compensated for the delay in payment of the purchase price. The proviso to Section 7(ii) makes it clear that when an undertaking is sold or delivered to the Electricity Board or to the State, the licence shall cease to have any further operation. When the proviso talks of sale and delivery, it means a valid sale or a valid delivery. Admittedly, the undertaking belonged to the licensee and if delivery of the undertaking is to be taken by the State Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will not cease to have operation and the licensee will be entitled to carry on the business.The undertaking, no doubt, belonged to the 1st appellant, a corporation. Not being a citizen, it has no fundamental right under Article 19. The 2nd appellant is a shareholder and the Managing Director of the Company. If his right to carry on the business through the agency of the Company is taken away or abridged, Or, his right to a divisible share in future of the property of the company is diminished or abridged in taking delivery of the undertaking without payment of the purchase price, there is no reason why he should be disabled from challenging the validity of the sub-section.The second appellant contends that the value of his investment in the Company is substantially reduced by the illegal delivery of the undertaking to the Board, that his right to carry on the business of supplying electricity through the agency of the Company is abridged and that he, along with the other shareholders are left with the burden of the debts of the undertaking.We think the second appellant is entitled to challenge the validity of the sub-section on the ground that it abridged his fundamental right under Arts. 19 (1) (g) and 19 (1) (f).
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National Insurance Co. Ltd Vs. Life Insurance Corporation Of India | to include in addition to life business the capital redemption business or annuity certain business or both; but where an insurer carries on life business and -general business like fire or marine insurance etc. the capital redemption business or the annuity certain business, or both, (as the case may be) cannot be included in the controlled business. He further contends that the expression "business appertaining to his life insurance business" in subclauses (i) and (ii) of the definition of "controlled business" must also be given this meaning. In our opinion this argument cannot be accepted. The definition of "controlled business" contemplates two kinds of insurers-(i) insurers who carry on life business only, and (ii) insurers who carry on composite business, that is to say certain other business which does not ex facie come within controlled business. Under sub-clause (a) of s. 2 (3) (i) controlled business covers the entire life business of an insurer if he carries on no other class of insurance business and under sub-clause (b) all the business appertaining to his life insurance business is included if he is a composite insurer. The controlled business in either case is intended to embrace all the business concerning life insurance. In the first case it means the whole of the business of the insurer and in the second case the part which comes within the life business but no other. The explanation, that is annexed to the definition, then shows what comes within life business and the explanation is designed to serve the purposes of (a) and (b) to sub-clause (i) of the definition. The explanation first seeks to explain who can be said to carry on "no class of insurance business other than life insurance business" and says that such would be an insurer who in addition to life business carries on only capital redemption business or annuity certain business or both. The word "only" shows that with the life business go the two named businesses but no other. An insurer who carries on life business and in addition only the one or the other of the two named businesses or both is to be regarded still as one carrying on no business other than life insurance business. The explanation next says that the expression "business appertaining to his life insurance business" which occurs- in (b) should be construed "accordingly". The word "accordingly" clearly means "in a similar manner".We are concerned here with a composite insurer and sub- clause (b) says that the "controlled business" in such a case would include all business which appertains to life insurance business but no other business and the explanation says that the expression "business appertaining to life insurance business" should be construed as in the first part of the explanation This means that included in the life insurance business of a composite insurer are those businesses which go with the life business in the first part of the explanation, that is to say, capital redemption business and annuity certain business or both. Both the grammar and the sense of the matter lead to the same result. Indeed the argument of the learned counsel to be valid must shift the word "only" from the place it occupies to the end of the first part of the explanation so as to control the entire sentence and not only a part of it. This cannot be done. In our opinion, the capital redemption business and the annuity certain business must be included in the expression "controlled business even in the case of a composite insurer like the appellant Company. The first part of the contention of the Company therefore fails.4. The dispute with regard to the assets of the Capital Obligation Business (which term includes both the capital redemption business and the annuity certain business) arises in the following circumstances. The Company maintained a fund called the "Capital Obligation Fund" which amounted to Rs. 12, 80, 882-8-9 on August 31, 1956. On the establishment of the Corporation the Company made over to the Corporation all the policies relating to this Fund and the liability relating to these policies as they stood on December 31, 1955, was Rs. 12, 88, 727. Tim Company was, therefore, asked to hand over either cash or investments of an equal value.On the eve of the transfer of assets, the Company made changes in its investments relative to the life business and general business. These investments included approved investments under s. 27 A of the Insurance Act and others. What the Company did was to transfer certain unapproved investments at their book value to its Capital Obligation Business and made them over to the Corporation. The Corporation declined to receive them. It asked the Company to give stocks and shares of the appropriate market value or allow the Corporation to select stocks and shares from the investments. The Company contended that the Corporation was not entitled to "pick and choose" from the various investments. The Company had already transferred all the gilt-edged investments from the life and the Capital Obligation Fund to the general business leaving investments (which were not approved) of the book value sufficient to cover Rs. 12, 87, 000 odd which represented the Capital Obligation Business. These investments were rated at half their book value by the Corporation.5. The Tribunal reversed the entries in respect of the investments relating to sundry funds. It is contended that the Tribunal reversed only a few of the book entries which had been made on the eve of vesting but not all and did not restore the status quo existing on December 31, 1955. It is also contended that the Corporation should not be allowed to pick and choose from the investments. The point about fr., picking and choosing" and that about reversing the entries lose all force in view of the fact that before the Tribunal the Company conceded that the Corporation may pick any investments of the value of Rs. 12, 80, 890 which represented the Capital Obligation Business. | 0[ds]In our opinion this argument cannot be accepted. The definition of "controlled business" contemplates two kinds of insurers-(i) insurers who carry on life business only, and (ii) insurers who carry on composite business, that is to say certain other business which does not ex facie come within controlled business. Under sub-clause (a) of s. 2 (3) (i) controlled business covers the entire life business of an insurer if he carries on no other class of insurance business and under sub-clause (b) all the business appertaining to his life insurance business is included if he is a composite insurer. The controlled business in either case is intended to embrace all the business concerning life insurance. In the first case it means the whole of the business of the insurer and in the second case the part which comes within the life business but no other. The explanation, that is annexed to the definition, then shows what comes within life business and the explanation is designed to serve the purposes of (a) and (b) to sub-clause (i) of the definition. The explanation first seeks to explain who can be said to carry on "no class of insurance business other than life insurance business" and says that such would be an insurer who in addition to life business carries on only capital redemption business or annuity certain business or both. The word "only" shows that with the life business go the two named businesses but no other. An insurer who carries on life business and in addition only the one or the other of the two named businesses or both is to be regarded still as one carrying on no business other than life insurance business. The explanation next says that the expression "business appertaining to his life insurance business" which occurs- in (b) should be construed "accordingly". The word "accordingly" clearly means "in a similar manner".We are concerned here with a composite insurer and sub- clause (b) says that the "controlled business" in such a case would include all business which appertains to life insurance business but no other business and the explanation says that the expression "business appertaining to life insurance business" should be construed as in the first part of the explanation This means that included in the life insurance business of a composite insurer are those businesses which go with the life business in the first part of the explanation, that is to say, capital redemption business and annuity certain business or both. Both the grammar and the sense of the matter lead to the same result. Indeed the argument of the learned counsel to be valid must shift the word "only" from the place it occupies to the end of the first part of the explanation so as to control the entire sentence and not only a part of it. This cannot be done. In our opinion, the capital redemption business and the annuity certain business must be included in the expression "controlled business even in the case of a composite insurer like the appellant Company. The first part of the contention of the Company thereforedispute with regard to the assets of the Capital Obligation Business (which term includes both the capital redemption business and the annuity certain business) arises in the following circumstances. The Company maintained a fund called the "Capital Obligation Fund" which amounted to Rs. 12, 80, 882-8-9 on August 31, 1956. On the establishment of the Corporation the Company made over to the Corporation all the policies relating to this Fund and the liability relating to these policies as they stood on December 31, 1955, was Rs. 12, 88, 727. Tim Company was, therefore, asked to hand over either cash or investments of an equal value.On the eve of the transfer of assets, the Company made changes in its investments relative to the life business and general business. These investments included approved investments under s. 27 A of the Insurance Act and others. What the Company did was to transfer certain unapproved investments at their book value to its Capital Obligation Business and made them over to the Corporation. The Corporation declined to receive them. It asked the Company to give stocks and shares of the appropriate market value or allow the Corporation to select stocks and shares from the investments. The Company contended that the Corporation was not entitled to "pick and choose" from the various investments. The Company had already transferred all the gilt-edged investments from the life and the Capital Obligation Fund to the general business leaving investments (which were not approved) of the book value sufficient to cover Rs. 12, 87, 000 odd which represented the Capital Obligation Business. These investments were rated at half their book value by theTribunal reversed the entries in respect of the investments relating to sundry funds. It is contended that the Tribunal reversed only a few of the book entries which had been made on the eve of vesting but not all and did not restore the status quo existing on December 31, 1955. It is also contended that the Corporation should not be allowed to pick and choose from the investments. The point about fr., picking and choosing" and that about reversing the entries lose all force in view of the fact that before the Tribunal the Company conceded that the Corporation may pick any investments of the value of Rs. 12, 80, 890 which represented the Capital Obligation Business. | 0 | 2,179 | 1,023 | ### 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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to include in addition to life business the capital redemption business or annuity certain business or both; but where an insurer carries on life business and -general business like fire or marine insurance etc. the capital redemption business or the annuity certain business, or both, (as the case may be) cannot be included in the controlled business. He further contends that the expression "business appertaining to his life insurance business" in subclauses (i) and (ii) of the definition of "controlled business" must also be given this meaning. In our opinion this argument cannot be accepted. The definition of "controlled business" contemplates two kinds of insurers-(i) insurers who carry on life business only, and (ii) insurers who carry on composite business, that is to say certain other business which does not ex facie come within controlled business. Under sub-clause (a) of s. 2 (3) (i) controlled business covers the entire life business of an insurer if he carries on no other class of insurance business and under sub-clause (b) all the business appertaining to his life insurance business is included if he is a composite insurer. The controlled business in either case is intended to embrace all the business concerning life insurance. In the first case it means the whole of the business of the insurer and in the second case the part which comes within the life business but no other. The explanation, that is annexed to the definition, then shows what comes within life business and the explanation is designed to serve the purposes of (a) and (b) to sub-clause (i) of the definition. The explanation first seeks to explain who can be said to carry on "no class of insurance business other than life insurance business" and says that such would be an insurer who in addition to life business carries on only capital redemption business or annuity certain business or both. The word "only" shows that with the life business go the two named businesses but no other. An insurer who carries on life business and in addition only the one or the other of the two named businesses or both is to be regarded still as one carrying on no business other than life insurance business. The explanation next says that the expression "business appertaining to his life insurance business" which occurs- in (b) should be construed "accordingly". The word "accordingly" clearly means "in a similar manner".We are concerned here with a composite insurer and sub- clause (b) says that the "controlled business" in such a case would include all business which appertains to life insurance business but no other business and the explanation says that the expression "business appertaining to life insurance business" should be construed as in the first part of the explanation This means that included in the life insurance business of a composite insurer are those businesses which go with the life business in the first part of the explanation, that is to say, capital redemption business and annuity certain business or both. Both the grammar and the sense of the matter lead to the same result. Indeed the argument of the learned counsel to be valid must shift the word "only" from the place it occupies to the end of the first part of the explanation so as to control the entire sentence and not only a part of it. This cannot be done. In our opinion, the capital redemption business and the annuity certain business must be included in the expression "controlled business even in the case of a composite insurer like the appellant Company. The first part of the contention of the Company therefore fails.4. The dispute with regard to the assets of the Capital Obligation Business (which term includes both the capital redemption business and the annuity certain business) arises in the following circumstances. The Company maintained a fund called the "Capital Obligation Fund" which amounted to Rs. 12, 80, 882-8-9 on August 31, 1956. On the establishment of the Corporation the Company made over to the Corporation all the policies relating to this Fund and the liability relating to these policies as they stood on December 31, 1955, was Rs. 12, 88, 727. Tim Company was, therefore, asked to hand over either cash or investments of an equal value.On the eve of the transfer of assets, the Company made changes in its investments relative to the life business and general business. These investments included approved investments under s. 27 A of the Insurance Act and others. What the Company did was to transfer certain unapproved investments at their book value to its Capital Obligation Business and made them over to the Corporation. The Corporation declined to receive them. It asked the Company to give stocks and shares of the appropriate market value or allow the Corporation to select stocks and shares from the investments. The Company contended that the Corporation was not entitled to "pick and choose" from the various investments. The Company had already transferred all the gilt-edged investments from the life and the Capital Obligation Fund to the general business leaving investments (which were not approved) of the book value sufficient to cover Rs. 12, 87, 000 odd which represented the Capital Obligation Business. These investments were rated at half their book value by the Corporation.5. The Tribunal reversed the entries in respect of the investments relating to sundry funds. It is contended that the Tribunal reversed only a few of the book entries which had been made on the eve of vesting but not all and did not restore the status quo existing on December 31, 1955. It is also contended that the Corporation should not be allowed to pick and choose from the investments. The point about fr., picking and choosing" and that about reversing the entries lose all force in view of the fact that before the Tribunal the Company conceded that the Corporation may pick any investments of the value of Rs. 12, 80, 890 which represented the Capital Obligation Business.
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In our opinion this argument cannot be accepted. The definition of "controlled business" contemplates two kinds of insurers-(i) insurers who carry on life business only, and (ii) insurers who carry on composite business, that is to say certain other business which does not ex facie come within controlled business. Under sub-clause (a) of s. 2 (3) (i) controlled business covers the entire life business of an insurer if he carries on no other class of insurance business and under sub-clause (b) all the business appertaining to his life insurance business is included if he is a composite insurer. The controlled business in either case is intended to embrace all the business concerning life insurance. In the first case it means the whole of the business of the insurer and in the second case the part which comes within the life business but no other. The explanation, that is annexed to the definition, then shows what comes within life business and the explanation is designed to serve the purposes of (a) and (b) to sub-clause (i) of the definition. The explanation first seeks to explain who can be said to carry on "no class of insurance business other than life insurance business" and says that such would be an insurer who in addition to life business carries on only capital redemption business or annuity certain business or both. The word "only" shows that with the life business go the two named businesses but no other. An insurer who carries on life business and in addition only the one or the other of the two named businesses or both is to be regarded still as one carrying on no business other than life insurance business. The explanation next says that the expression "business appertaining to his life insurance business" which occurs- in (b) should be construed "accordingly". The word "accordingly" clearly means "in a similar manner".We are concerned here with a composite insurer and sub- clause (b) says that the "controlled business" in such a case would include all business which appertains to life insurance business but no other business and the explanation says that the expression "business appertaining to life insurance business" should be construed as in the first part of the explanation This means that included in the life insurance business of a composite insurer are those businesses which go with the life business in the first part of the explanation, that is to say, capital redemption business and annuity certain business or both. Both the grammar and the sense of the matter lead to the same result. Indeed the argument of the learned counsel to be valid must shift the word "only" from the place it occupies to the end of the first part of the explanation so as to control the entire sentence and not only a part of it. This cannot be done. In our opinion, the capital redemption business and the annuity certain business must be included in the expression "controlled business even in the case of a composite insurer like the appellant Company. The first part of the contention of the Company thereforedispute with regard to the assets of the Capital Obligation Business (which term includes both the capital redemption business and the annuity certain business) arises in the following circumstances. The Company maintained a fund called the "Capital Obligation Fund" which amounted to Rs. 12, 80, 882-8-9 on August 31, 1956. On the establishment of the Corporation the Company made over to the Corporation all the policies relating to this Fund and the liability relating to these policies as they stood on December 31, 1955, was Rs. 12, 88, 727. Tim Company was, therefore, asked to hand over either cash or investments of an equal value.On the eve of the transfer of assets, the Company made changes in its investments relative to the life business and general business. These investments included approved investments under s. 27 A of the Insurance Act and others. What the Company did was to transfer certain unapproved investments at their book value to its Capital Obligation Business and made them over to the Corporation. The Corporation declined to receive them. It asked the Company to give stocks and shares of the appropriate market value or allow the Corporation to select stocks and shares from the investments. The Company contended that the Corporation was not entitled to "pick and choose" from the various investments. The Company had already transferred all the gilt-edged investments from the life and the Capital Obligation Fund to the general business leaving investments (which were not approved) of the book value sufficient to cover Rs. 12, 87, 000 odd which represented the Capital Obligation Business. These investments were rated at half their book value by theTribunal reversed the entries in respect of the investments relating to sundry funds. It is contended that the Tribunal reversed only a few of the book entries which had been made on the eve of vesting but not all and did not restore the status quo existing on December 31, 1955. It is also contended that the Corporation should not be allowed to pick and choose from the investments. The point about fr., picking and choosing" and that about reversing the entries lose all force in view of the fact that before the Tribunal the Company conceded that the Corporation may pick any investments of the value of Rs. 12, 80, 890 which represented the Capital Obligation Business.
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M. C. Chockalingam & Ors Vs. V. Manickavasagam & Ors | right to possess in some other person" The learned authors have further put in a word of caution oberving:"The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context". 14. Mr. Gupte strenuously submits that lawful possession cannot be divorced from an affirmative, positive legal right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession. In the context of R. 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title. 15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession, although the word lawful is not used in the first part. It is in that context that the word possession is even not necessary to be qualified by lawful in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word lawful, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it.This Court in Lallu Yeshwant Singhs case, (1968) 2 SCR 203 = (AIR 1968 SC 620 ) (supra) had not to consider whether juridical possession in that case was also lawful possession.We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. 16. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take not of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessees continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5 (1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position. the expression lawful possession in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution. 17. We are also unable to accept the submission of Mr. Setalved that the case of renewal of a licence of this type is different from that of a grant. Rule 13 finds place in Part I-A of the Rules with the title General. Under Section 5 (2) (a) of the Act, the licensing authority shall not grant a licence unless it is satisfied that the rules made under this Act have been substantially complied with. We, therefore, do not find any justification in making a distinction between grant and renewal of a licence under the provisions of the Act read with the Rules. Rule 13 is, therefore, clearly applicable to grant as well as to renewal of a licence. 18. With regard to the last submission of Mr. Setalvad, in our view, there is no manifest error of law in the order of the Board and there was no scope for interference by the High Court with the order under Article 226 of the Constitution. | 0[ds]In the context of R. 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession, although the word lawful is not used in the first part. It is in that context that the word possession is even not necessary to be qualified by lawful in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word lawful, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it16. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take not of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessees continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5 (1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position. the expression lawful possession in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution17. We are also unable to accept the submission of Mr. Setalved that the case of renewal of a licence of this type is different from that of a grant. Rule 13 finds place in Part I-A of the Rules with the title General. Under Section 5 (2) (a) of the Act, the licensing authority shall not grant a licence unless it is satisfied that the rules made under this Act have been substantially complied with. We, therefore, do not find any justification in making a distinction between grant and renewal of a licence under the provisions of the Act read with the Rules. Rule 13 is, therefore, clearly applicable to grant as well as to renewal of a licence18. With regard to the last submission of Mr. Setalvad, in our view, there is no manifest error of law in the order of the Board and there was no scope for interference by the High Court with the order under Article 226 of the Constitution. | 0 | 4,995 | 929 | ### 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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right to possess in some other person" The learned authors have further put in a word of caution oberving:"The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context". 14. Mr. Gupte strenuously submits that lawful possession cannot be divorced from an affirmative, positive legal right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession. In the context of R. 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title. 15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession, although the word lawful is not used in the first part. It is in that context that the word possession is even not necessary to be qualified by lawful in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word lawful, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it.This Court in Lallu Yeshwant Singhs case, (1968) 2 SCR 203 = (AIR 1968 SC 620 ) (supra) had not to consider whether juridical possession in that case was also lawful possession.We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. 16. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take not of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessees continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5 (1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position. the expression lawful possession in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution. 17. We are also unable to accept the submission of Mr. Setalved that the case of renewal of a licence of this type is different from that of a grant. Rule 13 finds place in Part I-A of the Rules with the title General. Under Section 5 (2) (a) of the Act, the licensing authority shall not grant a licence unless it is satisfied that the rules made under this Act have been substantially complied with. We, therefore, do not find any justification in making a distinction between grant and renewal of a licence under the provisions of the Act read with the Rules. Rule 13 is, therefore, clearly applicable to grant as well as to renewal of a licence. 18. With regard to the last submission of Mr. Setalvad, in our view, there is no manifest error of law in the order of the Board and there was no scope for interference by the High Court with the order under Article 226 of the Constitution.
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In the context of R. 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession, although the word lawful is not used in the first part. It is in that context that the word possession is even not necessary to be qualified by lawful in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word lawful, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it16. Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take not of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessees continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5 (1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position. the expression lawful possession in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution17. We are also unable to accept the submission of Mr. Setalved that the case of renewal of a licence of this type is different from that of a grant. Rule 13 finds place in Part I-A of the Rules with the title General. Under Section 5 (2) (a) of the Act, the licensing authority shall not grant a licence unless it is satisfied that the rules made under this Act have been substantially complied with. We, therefore, do not find any justification in making a distinction between grant and renewal of a licence under the provisions of the Act read with the Rules. Rule 13 is, therefore, clearly applicable to grant as well as to renewal of a licence18. With regard to the last submission of Mr. Setalvad, in our view, there is no manifest error of law in the order of the Board and there was no scope for interference by the High Court with the order under Article 226 of the Constitution.
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Commissioner Of Income-Tax, Bombay Vs. M/S. Walchand & Co. (Pvt.) Ltd., Bombay | case the Tribunal acted without evidence in disallowing Rs. 30.000 (Rupees thirty thousand)" The High Court was of the view that the Tribunal acted without evidence in partially disallowing the increase in the remuneration of the three executive officers during the assessment years 1953-54 and l954-55. The Commissioner of Income-tax has appealed to this Court, with special leave. 4. The assessee claimed the additional remuneration paid to the Directors and to the executive officers as a permissible allowance under S. 10 (2) (xv) of the Indian Income-tax Act, 1922 which reads:"Such profits or gains shall be computed after making the following allowances, namely:- * * * * * (xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assesses laid out or expended wholly and exclusively for the purpose of such business, profession or vocation." The remuneration paid to the executive officers was not of the nature allowable under Cls. (i) to (xiv): nor was it of the nature of capital expenditure or personal expenses of the assessee. The Income-tax Officer disallowed the entire increase in the remuneration holding that it was not expended "wholly and necessarily" for the purpose of such business. The Tribunal without recording any reasons partially disallowed the amount as a permissible deduction. It is necessary to emphasize that though the Tribunal is not a Court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate Court acting under the Code of Civil Procedure. Authority to "pass such orders thereon as it thinks fit" in S. 33(4) of the Income-tax Act 1922, is not arbitrary: the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of the subject-matter of the appeal in the light of the evidence, and consistently with the justice of the case. In the hierarchy of authorities the Appellate Tribunal is the final fact-finding body its decisions on questions of fact are not liable to be questioned before the High Court. The nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reasons in support cannot but be severely deprecated. 5. In paragraph 2 of their order the Tribunal correctly set out the principle applicable to claims for deduction of expenditure incurred in payment of remuneration to its employees by the assessee. But for partially rejecting the claim for allowance of the amount paid, no reasons were recorded. If the Tribunal was satisfied that the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the assessee there was no reason why the full amount expended should not have been allowed. It is open to the Tribunal to come to a conclusion, either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or that it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it.But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. When a claim For allowance under S. 10 (2) (xv) of the Income-tax Act is made, the Income-tax authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commerical expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Revenue. The Income-tax Officer was of the view that there was no adequate increase in the earnings of the assessee, for the increase in remuneration was not reflected in the increase in profits of the assessee and that it appeared that as compared to the previous years, the business profits disclosed by the assessee had fallen by Rs 2 lakes and therefore the increase in expenditure could not be justified as laid out whol1y and necessarily for the purposes of the business. But an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed, and the special aptitude of the employee, future prospects of extension of the business and a host of other related circumstances. The rule that increased remuneration can only be justified if there be corresponding increase in the profits of the employer is, in our judgment, erroneous. 6. The Tribunal did not agree with the view of the Income-tax Officer. That is clear from the observations made in paragraph 2 of their order. But, without assigning any reasons, the Tribunal allowed the claim only partially. The High Court on a careful consideration has pointed out that the work of the assessee has increased considerably and has become more strenuous by reasons of the prosperity of the managed Companies and it would be reasonable and natural to infer that "the strain on both the Directors and the top executives had increased justifying increase in their remuneration". In their view the feet that additional remuneration was not sanctioned in favour of other executive officers is by itself not a ground for regarding the expenditure incurred as otherwise than wholly and exclusively laid out or expended for the purpose of the business. We agree with the High Court that the order of the Tribunal disallowing the claim for allowance of the whole of the additional remuneration was not supported by any evidence. | 0[ds]6. The Tribunal did not agree with the view of the Income-tax Officer. That is clear from the observations made in paragraph 2 of their order. But, without assigning any reasons, the Tribunal allowed the claim only partially. The High Court on a careful consideration has pointed out that the work of the assessee has increased considerably and has become more strenuous by reasons of the prosperity of the managed Companies and it would be reasonable and natural to infer that "the strain on both the Directors and the top executives had increased justifying increase in their remuneration". In their view the feet that additional remuneration was not sanctioned in favour of other executive officers is by itself not a ground for regarding the expenditure incurred as otherwise than wholly and exclusively laid out or expended for the purpose of the business. We agree with the High Court that the order of the Tribunal disallowing the claim for allowance of the whole of the additional remuneration was not supported by any evidenceThe remuneration paid to the executive officers was not of the nature allowable under Cls. (i) to (xiv): nor was it of the nature of capital expenditure or personal expenses of the assessee. Thex Officer disallowed the entire increase in the remuneration holding that it was not expended "wholly and necessarily" for the purpose of such business. The Tribunal without recording any reasons partially disallowed the amount as a permissible deduction. It is necessary to emphasize that though the Tribunal is not a Court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate Court acting under the Code of Civil Procedure. Authority to "pass such orders thereon as it thinks fit" in S. 33(4) of thex Act 1922, is not arbitrary: the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of ther of the appeal in the light of the evidence, and consistently with the justice of the case. In the hierarchy of authorities the Appellate Tribunal is the finalg body its decisions on questions of fact are not liable to be questioned before the High Court. The nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reasons in support cannot but be severely deprecated5. In paragraph 2 of their order the Tribunal correctly set out the principle applicable to claims for deduction of expenditure incurred in payment of remuneration to its employees by the assessee. But for partially rejecting the claim for allowance of the amount paid, no reasons were recorded. If the Tribunal was satisfied that the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the assessee there was no reason why the full amount expended should not have been allowed. It is open to the Tribunal to come to a conclusion, either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or that it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it.But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. When a claim For allowance under S. 10 (2) (xv) of thex Act is made, thex authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commerical expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Revenue. Thex Officer was of the view that there was no adequate increase in the earnings of the assessee, for the increase in remuneration was not reflected in the increase in profits of the assessee and that it appeared that as compared to the previous years, the business profits disclosed by the assessee had fallen by Rs 2 lakes and therefore the increase in expenditure could not be justified as laid out whol1y and necessarily for the purposes of the business. But an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed, and the special aptitude of the employee, future prospects of extension of the business and a host of other related circumstances. The rule that increased remuneration can only be justified if there be corresponding increase in the profits of the employer is, in our judgment, erroneous. | 0 | 1,689 | 896 | ### Instruction:
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case the Tribunal acted without evidence in disallowing Rs. 30.000 (Rupees thirty thousand)" The High Court was of the view that the Tribunal acted without evidence in partially disallowing the increase in the remuneration of the three executive officers during the assessment years 1953-54 and l954-55. The Commissioner of Income-tax has appealed to this Court, with special leave. 4. The assessee claimed the additional remuneration paid to the Directors and to the executive officers as a permissible allowance under S. 10 (2) (xv) of the Indian Income-tax Act, 1922 which reads:"Such profits or gains shall be computed after making the following allowances, namely:- * * * * * (xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assesses laid out or expended wholly and exclusively for the purpose of such business, profession or vocation." The remuneration paid to the executive officers was not of the nature allowable under Cls. (i) to (xiv): nor was it of the nature of capital expenditure or personal expenses of the assessee. The Income-tax Officer disallowed the entire increase in the remuneration holding that it was not expended "wholly and necessarily" for the purpose of such business. The Tribunal without recording any reasons partially disallowed the amount as a permissible deduction. It is necessary to emphasize that though the Tribunal is not a Court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate Court acting under the Code of Civil Procedure. Authority to "pass such orders thereon as it thinks fit" in S. 33(4) of the Income-tax Act 1922, is not arbitrary: the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of the subject-matter of the appeal in the light of the evidence, and consistently with the justice of the case. In the hierarchy of authorities the Appellate Tribunal is the final fact-finding body its decisions on questions of fact are not liable to be questioned before the High Court. The nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reasons in support cannot but be severely deprecated. 5. In paragraph 2 of their order the Tribunal correctly set out the principle applicable to claims for deduction of expenditure incurred in payment of remuneration to its employees by the assessee. But for partially rejecting the claim for allowance of the amount paid, no reasons were recorded. If the Tribunal was satisfied that the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the assessee there was no reason why the full amount expended should not have been allowed. It is open to the Tribunal to come to a conclusion, either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or that it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it.But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. When a claim For allowance under S. 10 (2) (xv) of the Income-tax Act is made, the Income-tax authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commerical expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Revenue. The Income-tax Officer was of the view that there was no adequate increase in the earnings of the assessee, for the increase in remuneration was not reflected in the increase in profits of the assessee and that it appeared that as compared to the previous years, the business profits disclosed by the assessee had fallen by Rs 2 lakes and therefore the increase in expenditure could not be justified as laid out whol1y and necessarily for the purposes of the business. But an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed, and the special aptitude of the employee, future prospects of extension of the business and a host of other related circumstances. The rule that increased remuneration can only be justified if there be corresponding increase in the profits of the employer is, in our judgment, erroneous. 6. The Tribunal did not agree with the view of the Income-tax Officer. That is clear from the observations made in paragraph 2 of their order. But, without assigning any reasons, the Tribunal allowed the claim only partially. The High Court on a careful consideration has pointed out that the work of the assessee has increased considerably and has become more strenuous by reasons of the prosperity of the managed Companies and it would be reasonable and natural to infer that "the strain on both the Directors and the top executives had increased justifying increase in their remuneration". In their view the feet that additional remuneration was not sanctioned in favour of other executive officers is by itself not a ground for regarding the expenditure incurred as otherwise than wholly and exclusively laid out or expended for the purpose of the business. We agree with the High Court that the order of the Tribunal disallowing the claim for allowance of the whole of the additional remuneration was not supported by any evidence.
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6. The Tribunal did not agree with the view of the Income-tax Officer. That is clear from the observations made in paragraph 2 of their order. But, without assigning any reasons, the Tribunal allowed the claim only partially. The High Court on a careful consideration has pointed out that the work of the assessee has increased considerably and has become more strenuous by reasons of the prosperity of the managed Companies and it would be reasonable and natural to infer that "the strain on both the Directors and the top executives had increased justifying increase in their remuneration". In their view the feet that additional remuneration was not sanctioned in favour of other executive officers is by itself not a ground for regarding the expenditure incurred as otherwise than wholly and exclusively laid out or expended for the purpose of the business. We agree with the High Court that the order of the Tribunal disallowing the claim for allowance of the whole of the additional remuneration was not supported by any evidenceThe remuneration paid to the executive officers was not of the nature allowable under Cls. (i) to (xiv): nor was it of the nature of capital expenditure or personal expenses of the assessee. Thex Officer disallowed the entire increase in the remuneration holding that it was not expended "wholly and necessarily" for the purpose of such business. The Tribunal without recording any reasons partially disallowed the amount as a permissible deduction. It is necessary to emphasize that though the Tribunal is not a Court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate Court acting under the Code of Civil Procedure. Authority to "pass such orders thereon as it thinks fit" in S. 33(4) of thex Act 1922, is not arbitrary: the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of ther of the appeal in the light of the evidence, and consistently with the justice of the case. In the hierarchy of authorities the Appellate Tribunal is the finalg body its decisions on questions of fact are not liable to be questioned before the High Court. The nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reasons in support cannot but be severely deprecated5. In paragraph 2 of their order the Tribunal correctly set out the principle applicable to claims for deduction of expenditure incurred in payment of remuneration to its employees by the assessee. But for partially rejecting the claim for allowance of the amount paid, no reasons were recorded. If the Tribunal was satisfied that the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the assessee there was no reason why the full amount expended should not have been allowed. It is open to the Tribunal to come to a conclusion, either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or that it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it.But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee. When a claim For allowance under S. 10 (2) (xv) of thex Act is made, thex authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commerical expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Revenue. Thex Officer was of the view that there was no adequate increase in the earnings of the assessee, for the increase in remuneration was not reflected in the increase in profits of the assessee and that it appeared that as compared to the previous years, the business profits disclosed by the assessee had fallen by Rs 2 lakes and therefore the increase in expenditure could not be justified as laid out whol1y and necessarily for the purposes of the business. But an employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed, and the special aptitude of the employee, future prospects of extension of the business and a host of other related circumstances. The rule that increased remuneration can only be justified if there be corresponding increase in the profits of the employer is, in our judgment, erroneous.
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S.K. Verma Vs. Mahesh Chandra and Another | with the relevant statements and the will of expenses to the Branch office.-8. Advances Deposits:In respect of business procured by you during the tour you should see that advance deposits, at least equal to full installment of first premiums, are collected from the proponents and that all such amounts are remitted to the Branch office immediately by M o., or if there is a Corporations collection Account in the town with any Bank, you should deposit the amounts immediately to the credit of the Corporation, giving full details to the Bank regarding the manner in which these amounts are to be credited. If you collect any amount as deposit towards the first premium you should always issue receipts there for in prescribed form to the parties concerned. If you permit any of your agents either requited by you or allotted to you to conduct the medical examination of a proponent without first realising an advance deposit and if such a proposal does not result in a policy the medical fees unnecessarily incurred will be debited to your account.9. Record of Daily Work:You are required to make daily entries in the prescribed form which shall give a complete record as well as the results of your daily business calls. This record must be presented to the Assistant Branch Manager (Administration) or the Branch Manager or to the Assistant Branch Manager (Development) for inspection at least once a week or at more frequent intervals, if called upon to do so.When you are on tour you will make the entries in the Daily Record and on your return to the headquarters you will submit such record for inspection as stated above.If your headquarters are not the same as the Branch office headquarters, you will submit the Daily Records in such manner as you may be asked to by the Branch Manager.You are also requested to fill in your Plan Book in consultation with your Branch Manager or Assistant Branch Manager (Development) and see that the targets of work you set f or yourself therein are reached.10. Collection of Premiums:Unless you are expressly authorised by the Corporation, you have no authority to collect premiums save the deposits towards the first premium as stated hereinabove.11. Targets:You are required as outlined in your Plan Book:(a) to secure through agents recruited by you and allotted to you a minimum life business of Rs. 5 lacs yielding first years schedule premium income of not less than Rs. 30, 000 through at least 100 policies:(b) to recruit and train 25 new agents;(c) to supervise and motivate the agents allotted to you if any and see that the average output of these agents allotted to you is increased progressively from year to year and,(d) to open 6 new centers for development.We hope you will be able to exceed these targets as your actual categorisation to be made after the expiry of probationary period will depend upon the fulfilment of these targets and your record o f post-sales service rendered to the Corporations policy holders in the area allotted to you.On the basis of the targets outlined in your Plan Book and your achievements in terms of new business, the recruitment and t raining of agents and motivating old agents to increased activity, the Corporation reserves the right to review the results of your efforts any time and to take such action as may be called for in the circumstances.12. General:You have no authority to accept risks or to bind the Corporation in any way. You are not permitted to advance premiums on behalf of the policy holders or to have policies assigned to you or to any member of your family (i. e. wife, parents and children) by policy holders who are not related to you. You are strictly forbidden to have any financial dealings with the agents of the Corporation.It is understood that your wife, your son, brother or any close relation of yours or any other member of your family living with you is not eligible for appointment as an agent of the Corporation If you operate any benami agency in the name of any person or if you are found to pass on any business to any of your agents and derive any financial benefit for yourself from this, your services will be liable to be terminated.You are not permitted to work directly or indirectly for any Insurer carrying on general Insurance business you are also not permitted to work as an agent for the National Savings organisation."6. A perusal of the above extracted terms and conditions of appointment shows that a development officer is to be a whole time employee of the Life Insurance Corporation of India. that his operations are to be restricted to a defined area and that he is liable to be transferred. He has no authority whatsoever to bind the Corporation in anyway. His principal duty appears to be to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post-sale services to policy-holders. He is expected to assist and inspire the agents. Even so he has not the authority to appoint agents or to take disciplinary action against them. He does not even supervise the work of the agents though he is required to train them and assist them. He is to be the friend, philosopher and guide of the agents working within his jurisdiction and no more. He is expected to stimulate and excite the agents to work, while exercising no administrative control over them. The agents are not his subordinates. In fact, it is admitted that he has no subordinate staff working under him. It is thus clear that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. He is a workman within the meaning of s. 2 (s) of the Industrial, Disputes Act.Th | 1[ds]A perusal of the above extracted terms and conditions of appointment shows that a development officer is to be a whole time employee of the Life Insurance Corporation of India. that his operations are to be restricted to a defined area and that he is liable to be transferred. He has no authority whatsoever to bind the Corporation in anyway. His principal duty appears to be to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post-sale services to policy-holders. He is expected to assist and inspire the agents. Even so he has not the authority to appoint agents or to take disciplinary action against them. He does not even supervise the work of the agents though he is required to train them and assist them. He is to be the friend, philosopher and guide of the agents working within his jurisdiction and no more. He is expected to stimulate and excite the agents to work, while exercising no administrative control over them. The agents are not his subordinates. In fact, it is admitted that he has no subordinate staff working under him. It is thus clear that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. He is a workman within the meaning of s. 2 (s) of the Industrial, Disputes Act.The order of the Industrial Tribunal and the judgment of the High Court are set aside and the matter is remitted to the Industrial Tribunal for disposal according to law. The Industrial Tribunal may dispose of the reference within three months from the dateof receipt of this order. The respondent workman is entitled to his costs. | 1 | 3,601 | 331 | ### Instruction:
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### Input:
with the relevant statements and the will of expenses to the Branch office.-8. Advances Deposits:In respect of business procured by you during the tour you should see that advance deposits, at least equal to full installment of first premiums, are collected from the proponents and that all such amounts are remitted to the Branch office immediately by M o., or if there is a Corporations collection Account in the town with any Bank, you should deposit the amounts immediately to the credit of the Corporation, giving full details to the Bank regarding the manner in which these amounts are to be credited. If you collect any amount as deposit towards the first premium you should always issue receipts there for in prescribed form to the parties concerned. If you permit any of your agents either requited by you or allotted to you to conduct the medical examination of a proponent without first realising an advance deposit and if such a proposal does not result in a policy the medical fees unnecessarily incurred will be debited to your account.9. Record of Daily Work:You are required to make daily entries in the prescribed form which shall give a complete record as well as the results of your daily business calls. This record must be presented to the Assistant Branch Manager (Administration) or the Branch Manager or to the Assistant Branch Manager (Development) for inspection at least once a week or at more frequent intervals, if called upon to do so.When you are on tour you will make the entries in the Daily Record and on your return to the headquarters you will submit such record for inspection as stated above.If your headquarters are not the same as the Branch office headquarters, you will submit the Daily Records in such manner as you may be asked to by the Branch Manager.You are also requested to fill in your Plan Book in consultation with your Branch Manager or Assistant Branch Manager (Development) and see that the targets of work you set f or yourself therein are reached.10. Collection of Premiums:Unless you are expressly authorised by the Corporation, you have no authority to collect premiums save the deposits towards the first premium as stated hereinabove.11. Targets:You are required as outlined in your Plan Book:(a) to secure through agents recruited by you and allotted to you a minimum life business of Rs. 5 lacs yielding first years schedule premium income of not less than Rs. 30, 000 through at least 100 policies:(b) to recruit and train 25 new agents;(c) to supervise and motivate the agents allotted to you if any and see that the average output of these agents allotted to you is increased progressively from year to year and,(d) to open 6 new centers for development.We hope you will be able to exceed these targets as your actual categorisation to be made after the expiry of probationary period will depend upon the fulfilment of these targets and your record o f post-sales service rendered to the Corporations policy holders in the area allotted to you.On the basis of the targets outlined in your Plan Book and your achievements in terms of new business, the recruitment and t raining of agents and motivating old agents to increased activity, the Corporation reserves the right to review the results of your efforts any time and to take such action as may be called for in the circumstances.12. General:You have no authority to accept risks or to bind the Corporation in any way. You are not permitted to advance premiums on behalf of the policy holders or to have policies assigned to you or to any member of your family (i. e. wife, parents and children) by policy holders who are not related to you. You are strictly forbidden to have any financial dealings with the agents of the Corporation.It is understood that your wife, your son, brother or any close relation of yours or any other member of your family living with you is not eligible for appointment as an agent of the Corporation If you operate any benami agency in the name of any person or if you are found to pass on any business to any of your agents and derive any financial benefit for yourself from this, your services will be liable to be terminated.You are not permitted to work directly or indirectly for any Insurer carrying on general Insurance business you are also not permitted to work as an agent for the National Savings organisation."6. A perusal of the above extracted terms and conditions of appointment shows that a development officer is to be a whole time employee of the Life Insurance Corporation of India. that his operations are to be restricted to a defined area and that he is liable to be transferred. He has no authority whatsoever to bind the Corporation in anyway. His principal duty appears to be to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post-sale services to policy-holders. He is expected to assist and inspire the agents. Even so he has not the authority to appoint agents or to take disciplinary action against them. He does not even supervise the work of the agents though he is required to train them and assist them. He is to be the friend, philosopher and guide of the agents working within his jurisdiction and no more. He is expected to stimulate and excite the agents to work, while exercising no administrative control over them. The agents are not his subordinates. In fact, it is admitted that he has no subordinate staff working under him. It is thus clear that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. He is a workman within the meaning of s. 2 (s) of the Industrial, Disputes Act.Th
### Response:
1
### Explanation:
A perusal of the above extracted terms and conditions of appointment shows that a development officer is to be a whole time employee of the Life Insurance Corporation of India. that his operations are to be restricted to a defined area and that he is liable to be transferred. He has no authority whatsoever to bind the Corporation in anyway. His principal duty appears to be to organise and develop the business of the Corporation in the area allotted to him and for that purpose to recruit active and reliable agents, to train them to canvass new business and to render post-sale services to policy-holders. He is expected to assist and inspire the agents. Even so he has not the authority to appoint agents or to take disciplinary action against them. He does not even supervise the work of the agents though he is required to train them and assist them. He is to be the friend, philosopher and guide of the agents working within his jurisdiction and no more. He is expected to stimulate and excite the agents to work, while exercising no administrative control over them. The agents are not his subordinates. In fact, it is admitted that he has no subordinate staff working under him. It is thus clear that the development officer cannot by any stretch of imagination be said to be engaged in any administrative or managerial work. He is a workman within the meaning of s. 2 (s) of the Industrial, Disputes Act.The order of the Industrial Tribunal and the judgment of the High Court are set aside and the matter is remitted to the Industrial Tribunal for disposal according to law. The Industrial Tribunal may dispose of the reference within three months from the dateof receipt of this order. The respondent workman is entitled to his costs.
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C.C.E. Mumbai - Iv Vs. M/S. Fitrite Packers, Mumbai | Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U.P., Lucknow v. Harbiles Rai and Sons (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their size and colour were regarded as remaining the same commercial commodity, pigs bristles).”This Court also explained the principle that where there was no commercial user without further process then the said process would amount to manufacture labelling it as test of no commercial user without further process.(iv) Another circumstance was taken note of and discussed which involves integrated process, culling out the test of integrated process without which manufacture would be impossible or commercially inexpedient. It was, thus, explained that where the manufacture involves series of processes, i.e., various stages through which the raw-material is subjected to change by different operations, each step towards such production would be a process in relation to the manufacture. 9) On the basis of aforesaid discussion and formulation of certain tests to ascertain whether a particular process would amount to manufacture or not, the Court culled out four categories of cases in its conclusion in para 27 of the judgment. We reproduce these categories hereunder: “27. The case law discussed above falls into four neat categories.(1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which clean goods that are complete in themselves fall within this category.(2) Where the goods remain essentially the same after the particular process, again there can be no manufacture. This is for the reason that the original article continues as such despite the said process and the changes brought about by the said process.(3) Where the goods are transformed into something different and/or new after a particular process, but the said goods are not marketable.Examples within this group are the Brakes India case and cases where the transformation of goods having a shelf life which is of extremely small duration. In these cases also no manufacture of goods takes place.(4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place.” 10) On the facts of the present case, it is to be determined as to whether the case would fall under category (2) or category (4). We have already taken note of printing process. A cursory look into the same may suggest, as held by the Tribunal, that GI paper is meant for wrapping and the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paper in-question was meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of aforesaid particular kind of printing has resulted into a product, i.e., paper with distinct character and use of its own which it did not bear earlier. Thus, the test of no commercial user without further process would be applied as explained in paragraph 20 of Servo-Med Industries (supra). The aforesaid paragraph is extracted hereunder. “20. In Brakes India Ltd. v. Superintendent of Central Excise (1997) 10 SCC 717 , the commodity in question was brake lining blanks. It was held on facts that such blanks could not be used as brake linings by themselves without the processes of drilling, trimming and chamfering. It was in this situation that the test laid down was that if by adopting a particular process a transformation takes place which makes the product have a character and use of its own which it did not bear earlier, then such process would amount to manufacture irrespective of whether there was a single process or several processes.” 11) The ratio thereof is explained in paragraph 24 in the following words: “24. It is important to understand the correct ratio of the judgment in the J.G. Glass case. This judgment does not hold that merely by application of the second test without more manufacture comes into being. The Court was at pains to point out that a twofold test had emerged for deciding whether the process is that of manufacture. The first test is extremely important – that by a process, a different commercial commodity must come into existence as a result of the identity of the original commodity ceasing to exist. The second test, namely that the commodity which was already in existence will serve no purpose but for a certain process must be understood in its true perspective. It is only when a different and/or finished product comes into existence as a result of a process which makes the said product commercially usable that the second test laid down in the judgment leads to manufacture.....” 12) This Court emphasised that there has first to be a transformation in the original article and this transformation should bring out a distinctive or different use in the article, in order to cover the process under the definition of manufacture. These tests are satisfied in the present case. | 1[ds]10) On the facts of the present case, it is to be determined as to whether the case would fall under category (2) or category (4). We have already taken note of printing process. A cursory look into the same may suggest, as held by the Tribunal, that GI paper is meant for wrapping and the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paperwas meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of aforesaid particular kind of printing has resulted into a product, i.e., paper with distinct character and use of its own which it did not bear earlier. Thus, the test of no commercial user without further process would be applied as explained in paragraph 20 ofIndustries (supra). The aforesaid paragraph is extracted hereunder.In Brakes India Ltd. v. Superintendent of Central Excise (1997) 10 SCC 717 , the commodity in question was brake lining blanks. It was held on facts that such blanks could not be used as brake linings by themselves without the processes of drilling, trimming and chamfering. It was in this situation that the test laid down was that if by adopting a particular process a transformation takes place which makes the product have a character and use of its own which it did not bear earlier, then such process would amount to manufacture irrespective of whether there was a single process or severalThe ratio thereof is explained in paragraph 24 in the followingIt is important to understand the correct ratio of the judgment in the J.G. Glass case. This judgment does not hold that merely by application of the second test without more manufacture comes into being. The Court was at pains to point out that a twofold test had emerged for deciding whether the process is that of manufacture. The first test is extremely important – that by a process, a different commercial commodity must come into existence as a result of the identity of the original commodity ceasing to exist. The second test, namely that the commodity which was already in existence will serve no purpose but for a certain process must be understood in its true perspective. It is only when a different and/or finished product comes into existence as a result of a process which makes the said product commercially usable that the second test laid down in the judgment leads toThis Court emphasised that there has first to be a transformation in the original article and this transformation should bring out a distinctive or different use in the article, in order to cover the process under the definition of manufacture. These tests are satisfied in the present case. | 1 | 2,532 | 643 | ### 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:
Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U.P., Lucknow v. Harbiles Rai and Sons (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their size and colour were regarded as remaining the same commercial commodity, pigs bristles).”This Court also explained the principle that where there was no commercial user without further process then the said process would amount to manufacture labelling it as test of no commercial user without further process.(iv) Another circumstance was taken note of and discussed which involves integrated process, culling out the test of integrated process without which manufacture would be impossible or commercially inexpedient. It was, thus, explained that where the manufacture involves series of processes, i.e., various stages through which the raw-material is subjected to change by different operations, each step towards such production would be a process in relation to the manufacture. 9) On the basis of aforesaid discussion and formulation of certain tests to ascertain whether a particular process would amount to manufacture or not, the Court culled out four categories of cases in its conclusion in para 27 of the judgment. We reproduce these categories hereunder: “27. The case law discussed above falls into four neat categories.(1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which clean goods that are complete in themselves fall within this category.(2) Where the goods remain essentially the same after the particular process, again there can be no manufacture. This is for the reason that the original article continues as such despite the said process and the changes brought about by the said process.(3) Where the goods are transformed into something different and/or new after a particular process, but the said goods are not marketable.Examples within this group are the Brakes India case and cases where the transformation of goods having a shelf life which is of extremely small duration. In these cases also no manufacture of goods takes place.(4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place.” 10) On the facts of the present case, it is to be determined as to whether the case would fall under category (2) or category (4). We have already taken note of printing process. A cursory look into the same may suggest, as held by the Tribunal, that GI paper is meant for wrapping and the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paper in-question was meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of aforesaid particular kind of printing has resulted into a product, i.e., paper with distinct character and use of its own which it did not bear earlier. Thus, the test of no commercial user without further process would be applied as explained in paragraph 20 of Servo-Med Industries (supra). The aforesaid paragraph is extracted hereunder. “20. In Brakes India Ltd. v. Superintendent of Central Excise (1997) 10 SCC 717 , the commodity in question was brake lining blanks. It was held on facts that such blanks could not be used as brake linings by themselves without the processes of drilling, trimming and chamfering. It was in this situation that the test laid down was that if by adopting a particular process a transformation takes place which makes the product have a character and use of its own which it did not bear earlier, then such process would amount to manufacture irrespective of whether there was a single process or several processes.” 11) The ratio thereof is explained in paragraph 24 in the following words: “24. It is important to understand the correct ratio of the judgment in the J.G. Glass case. This judgment does not hold that merely by application of the second test without more manufacture comes into being. The Court was at pains to point out that a twofold test had emerged for deciding whether the process is that of manufacture. The first test is extremely important – that by a process, a different commercial commodity must come into existence as a result of the identity of the original commodity ceasing to exist. The second test, namely that the commodity which was already in existence will serve no purpose but for a certain process must be understood in its true perspective. It is only when a different and/or finished product comes into existence as a result of a process which makes the said product commercially usable that the second test laid down in the judgment leads to manufacture.....” 12) This Court emphasised that there has first to be a transformation in the original article and this transformation should bring out a distinctive or different use in the article, in order to cover the process under the definition of manufacture. These tests are satisfied in the present case.
### Response:
1
### Explanation:
10) On the facts of the present case, it is to be determined as to whether the case would fall under category (2) or category (4). We have already taken note of printing process. A cursory look into the same may suggest, as held by the Tribunal, that GI paper is meant for wrapping and the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paperwas meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of aforesaid particular kind of printing has resulted into a product, i.e., paper with distinct character and use of its own which it did not bear earlier. Thus, the test of no commercial user without further process would be applied as explained in paragraph 20 ofIndustries (supra). The aforesaid paragraph is extracted hereunder.In Brakes India Ltd. v. Superintendent of Central Excise (1997) 10 SCC 717 , the commodity in question was brake lining blanks. It was held on facts that such blanks could not be used as brake linings by themselves without the processes of drilling, trimming and chamfering. It was in this situation that the test laid down was that if by adopting a particular process a transformation takes place which makes the product have a character and use of its own which it did not bear earlier, then such process would amount to manufacture irrespective of whether there was a single process or severalThe ratio thereof is explained in paragraph 24 in the followingIt is important to understand the correct ratio of the judgment in the J.G. Glass case. This judgment does not hold that merely by application of the second test without more manufacture comes into being. The Court was at pains to point out that a twofold test had emerged for deciding whether the process is that of manufacture. The first test is extremely important – that by a process, a different commercial commodity must come into existence as a result of the identity of the original commodity ceasing to exist. The second test, namely that the commodity which was already in existence will serve no purpose but for a certain process must be understood in its true perspective. It is only when a different and/or finished product comes into existence as a result of a process which makes the said product commercially usable that the second test laid down in the judgment leads toThis Court emphasised that there has first to be a transformation in the original article and this transformation should bring out a distinctive or different use in the article, in order to cover the process under the definition of manufacture. These tests are satisfied in the present case.
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Saroj Screens Pvt.Ltd Vs. Ghahshyam | for different reasons, that Resolution dated 28.8.1991 and the sanction accorded by the State Government vide letter dated 12.6.2000 are legally unsustainable does not call for interference by this Court. 17. We are also convinced that even though the lease granted to Gopaldas Mohta was renewed in favour of Parmanand Mundhada vide Resolution dated 29.10.1975, respondent Nos.1 and 2 cannot derive any benefit from the said renewal merely because the Corporation did not cancel or rescind the resolution. It was neither the pleaded case of respondent Nos.1 and 2 nor any material was produced by them before the High Court to show that Parmanand Mundhada had taken any action in furtherance of Resolution dated 29.10.1975 and fresh lease deed was executed in his favour. The only plea taken by them was that Parmanand Mundhada had filed an appeal under Section 397(3) read with Section 411 against increase in the ground rent and the imposition of penalty. However, nothing has been said about the fate of that appeal. If Parmanand Mundhada, his heirs or respondent Nos.1 and 2 felt that the disposal of the appeal has been unduly delayed then they could have filed a writ for issue of a mandamus directing the appellate authority to decide the appeal within a specified period but no such step is shown to have been taken by either of them. Therefore, we are constrained to take the view that Resolution dated 29.10.1975 had become redundant and the same can no longer be relied upon by respondent Nos.1 and 2 for claiming any right or interest in the plot. 18. The ratio of the judgment in Damodhar Tukaram Mangalmurti v. State of Bombay (supra) which has been relied upon by Shri Naphade has no bearing on this case. The question which came up for consideration in that case was whether Civil Court has the jurisdiction to decide the issue of fair and equitable enhancement of the annual rent. The facts of that case were that the then Provincial Government of the Central Provinces and Berar, Nagpur devised a scheme to extend residential accommodation by acquiring agricultural land and making it available for residential purposes. The lease granted in respect of building sites of 10,000 sq. ft. contained a renewal clause with a stipulation that the lessor can make fair and equitable increase in the amount of annual rent. At the time of renewal, the lessor increased the annual rent from Rs. 3-8-0 to Rs. 21-14-0 in accordance with Clause III of the indenture of lease. One of the preliminary issues framed by the Subordinate Judge, Nagpur was whether the Civil Court has the jurisdiction to decide as to what should be fair and equitable enhancement in the amount of annual rent. He ruled in favour of the plaintiff and his view was confirmed by the lower appellate Court. When the matter was taken up before the High Court, the Division Bench consisting of the Chief Justice and Mudholkar, J expressed divergent views. The third Judge to whom the matter was referred agreed with the learned Chief Justice that the Civil Court did not have jurisdiction in the matter. By majority of 2:1, this Court reversed the judgment of the High Court. Speaking for the majority, S. R. Das, J made the following observations: "We consider that the words" fair and equitable must be given their due meaning and proper effect. The question then asked is – what meaning is to be given to the words "such ... as the lessor shall determine". It is indeed true that these words constitute an adjectival clause to the expression "fair and equitable enhancement", but we consider that the meaning of the adjectival clause is merely this: the lessor must first determine what it considers to be fair and equitable enhancement; but if in fact it is not so, it is open to the lessee to ask the court to determine what is fair and equitable enhancement. We do not think that on a proper construction of the clause, the intention was to oust the jurisdiction of the court and make the determination of the enhancement by the lessor final and binding on the lessee." 19. In the present case, we are not concerned with the question whether the decision of the Corporation to increase the rent was legally correct and justified because, as mentioned above, the appeal allegedly filed by Parmanand Mundhada under Section 397 (3) read with Section 411 of the Act was not pursued to its logical end and in the writ petitions filed by them, respondent Nos.1 and 2 did not question ten times increase in the rent payable by the lessee. 20. The argument of Shri Shekhar Naphade, learned senior counsel for respondent Nos.1 and 2 that the Corporation is bound to renew the lease granted to his clients in terms of Section 116 of the Transfer of Property Act, 1882 because the plot in question remained in their possession through the appellant also merits rejection. The reason for this conclusion is that no evidence was produced before the High Court to show that the appellant was continuing in possession with the consent of Parmanand Mundhada, his heirs or respondent Nos.1 and 2. Rather, it was their pleaded case that after expiry of the period specified in lease deed dated 10.9.1947, the appellant did not have any right to continue in possession.21. We are also of the view that Resolution dated 29.10.1975 though passed in consonance with Clause 10 of lease dated 28.10.1944, has to satisfy the test of reasonableness, equality and fairness. Though, the initial lease was granted to Gopaldas Mohta before coming into force of the Constitution, while considering the issue of renewal of lease the Corporation was duty bound to take action and decision strictly in consonance with the constitutional principles and decision to renew the lease in favour of Parmanand Mundhada could not have been taken except after following a procedure consistent with the equality clause, which was not done. | 0[ds]evidence was produced before the High Court to show that the appellant was continuing in possession with the consent of Parmanand Mundhada, his heirs or respondent Nos.1 and 2. Rather, it was their pleaded case that after expiry of the period specified in lease deed dated 10.9.1947, the appellant did not have any right to continue in possession.21. We are also of the view that Resolution dated 29.10.1975 though passed in consonance with Clause 10 of lease dated 28.10.1944, has to satisfy the test of reasonableness, equality and fairness. Though, the initial lease was granted to Gopaldas Mohta before coming into force of the Constitution, while considering the issue of renewal of lease the Corporation was duty bound to take action and decision strictly in consonance with the constitutional principles and decision to renew the lease in favour of Parmanand Mundhada could not have been taken except after following a procedure consistent with the equality clause, which was notIn the present case, we are not concerned with the question whether the decision of the Corporation to increase the rent was legally correct and justified because, as mentioned above, the appeal allegedly filed by Parmanand Mundhada under Section 397 (3) read with Section 411 of the Act was not pursued to its logical end and in the writ petitions filed by them, respondent Nos.1 and 2 did not question ten times increase in the rent payable by the lessee.We are also convinced that even though the lease granted to Gopaldas Mohta was renewed in favour of Parmanand Mundhada vide Resolution dated 29.10.1975, respondent Nos.1 and 2 cannot derive any benefit from the said renewal merely because the Corporation did not cancel or rescind the resolution. It was neither the pleaded case of respondent Nos.1 and 2 nor any material was produced by them before the High Court to show that Parmanand Mundhada had taken any action in furtherance of Resolution dated 29.10.1975 and fresh lease deed was executed in his favour. The only plea taken by them was that Parmanand Mundhada had filed an appeal under Section 397(3) read with Section 411 against increase in the ground rent and the imposition of penalty. However, nothing has been said about the fate of that appeal. If Parmanand Mundhada, his heirs or respondent Nos.1 and 2 felt that the disposal of the appeal has been unduly delayed then they could have filed a writ for issue of a mandamus directing the appellate authority to decide the appeal within a specified period but no such step is shown to have been taken by either of them. Therefore, we are constrained to take the view that Resolution dated 29.10.1975 had become redundant and the same can no longer be relied upon by respondent Nos.1 and 2 for claiming any right or interest in the plot.The factual matrix of this case shows that before granting 30 years lease of the plot in favour of the appellant, the Corporation neither issued any advertisement nor followed any procedure consistent with the doctrine of equality so as to enable the members of the public to participate in the process of alienation of public property. Therefore, the conclusion reached by the High Court, though for different reasons, that Resolution dated 28.8.1991 and the sanction accorded by the State Government vide letter dated 12.6.2000 are legally unsustainable does not call for interference by this Court. | 0 | 9,487 | 604 | ### 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:
for different reasons, that Resolution dated 28.8.1991 and the sanction accorded by the State Government vide letter dated 12.6.2000 are legally unsustainable does not call for interference by this Court. 17. We are also convinced that even though the lease granted to Gopaldas Mohta was renewed in favour of Parmanand Mundhada vide Resolution dated 29.10.1975, respondent Nos.1 and 2 cannot derive any benefit from the said renewal merely because the Corporation did not cancel or rescind the resolution. It was neither the pleaded case of respondent Nos.1 and 2 nor any material was produced by them before the High Court to show that Parmanand Mundhada had taken any action in furtherance of Resolution dated 29.10.1975 and fresh lease deed was executed in his favour. The only plea taken by them was that Parmanand Mundhada had filed an appeal under Section 397(3) read with Section 411 against increase in the ground rent and the imposition of penalty. However, nothing has been said about the fate of that appeal. If Parmanand Mundhada, his heirs or respondent Nos.1 and 2 felt that the disposal of the appeal has been unduly delayed then they could have filed a writ for issue of a mandamus directing the appellate authority to decide the appeal within a specified period but no such step is shown to have been taken by either of them. Therefore, we are constrained to take the view that Resolution dated 29.10.1975 had become redundant and the same can no longer be relied upon by respondent Nos.1 and 2 for claiming any right or interest in the plot. 18. The ratio of the judgment in Damodhar Tukaram Mangalmurti v. State of Bombay (supra) which has been relied upon by Shri Naphade has no bearing on this case. The question which came up for consideration in that case was whether Civil Court has the jurisdiction to decide the issue of fair and equitable enhancement of the annual rent. The facts of that case were that the then Provincial Government of the Central Provinces and Berar, Nagpur devised a scheme to extend residential accommodation by acquiring agricultural land and making it available for residential purposes. The lease granted in respect of building sites of 10,000 sq. ft. contained a renewal clause with a stipulation that the lessor can make fair and equitable increase in the amount of annual rent. At the time of renewal, the lessor increased the annual rent from Rs. 3-8-0 to Rs. 21-14-0 in accordance with Clause III of the indenture of lease. One of the preliminary issues framed by the Subordinate Judge, Nagpur was whether the Civil Court has the jurisdiction to decide as to what should be fair and equitable enhancement in the amount of annual rent. He ruled in favour of the plaintiff and his view was confirmed by the lower appellate Court. When the matter was taken up before the High Court, the Division Bench consisting of the Chief Justice and Mudholkar, J expressed divergent views. The third Judge to whom the matter was referred agreed with the learned Chief Justice that the Civil Court did not have jurisdiction in the matter. By majority of 2:1, this Court reversed the judgment of the High Court. Speaking for the majority, S. R. Das, J made the following observations: "We consider that the words" fair and equitable must be given their due meaning and proper effect. The question then asked is – what meaning is to be given to the words "such ... as the lessor shall determine". It is indeed true that these words constitute an adjectival clause to the expression "fair and equitable enhancement", but we consider that the meaning of the adjectival clause is merely this: the lessor must first determine what it considers to be fair and equitable enhancement; but if in fact it is not so, it is open to the lessee to ask the court to determine what is fair and equitable enhancement. We do not think that on a proper construction of the clause, the intention was to oust the jurisdiction of the court and make the determination of the enhancement by the lessor final and binding on the lessee." 19. In the present case, we are not concerned with the question whether the decision of the Corporation to increase the rent was legally correct and justified because, as mentioned above, the appeal allegedly filed by Parmanand Mundhada under Section 397 (3) read with Section 411 of the Act was not pursued to its logical end and in the writ petitions filed by them, respondent Nos.1 and 2 did not question ten times increase in the rent payable by the lessee. 20. The argument of Shri Shekhar Naphade, learned senior counsel for respondent Nos.1 and 2 that the Corporation is bound to renew the lease granted to his clients in terms of Section 116 of the Transfer of Property Act, 1882 because the plot in question remained in their possession through the appellant also merits rejection. The reason for this conclusion is that no evidence was produced before the High Court to show that the appellant was continuing in possession with the consent of Parmanand Mundhada, his heirs or respondent Nos.1 and 2. Rather, it was their pleaded case that after expiry of the period specified in lease deed dated 10.9.1947, the appellant did not have any right to continue in possession.21. We are also of the view that Resolution dated 29.10.1975 though passed in consonance with Clause 10 of lease dated 28.10.1944, has to satisfy the test of reasonableness, equality and fairness. Though, the initial lease was granted to Gopaldas Mohta before coming into force of the Constitution, while considering the issue of renewal of lease the Corporation was duty bound to take action and decision strictly in consonance with the constitutional principles and decision to renew the lease in favour of Parmanand Mundhada could not have been taken except after following a procedure consistent with the equality clause, which was not done.
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### Explanation:
evidence was produced before the High Court to show that the appellant was continuing in possession with the consent of Parmanand Mundhada, his heirs or respondent Nos.1 and 2. Rather, it was their pleaded case that after expiry of the period specified in lease deed dated 10.9.1947, the appellant did not have any right to continue in possession.21. We are also of the view that Resolution dated 29.10.1975 though passed in consonance with Clause 10 of lease dated 28.10.1944, has to satisfy the test of reasonableness, equality and fairness. Though, the initial lease was granted to Gopaldas Mohta before coming into force of the Constitution, while considering the issue of renewal of lease the Corporation was duty bound to take action and decision strictly in consonance with the constitutional principles and decision to renew the lease in favour of Parmanand Mundhada could not have been taken except after following a procedure consistent with the equality clause, which was notIn the present case, we are not concerned with the question whether the decision of the Corporation to increase the rent was legally correct and justified because, as mentioned above, the appeal allegedly filed by Parmanand Mundhada under Section 397 (3) read with Section 411 of the Act was not pursued to its logical end and in the writ petitions filed by them, respondent Nos.1 and 2 did not question ten times increase in the rent payable by the lessee.We are also convinced that even though the lease granted to Gopaldas Mohta was renewed in favour of Parmanand Mundhada vide Resolution dated 29.10.1975, respondent Nos.1 and 2 cannot derive any benefit from the said renewal merely because the Corporation did not cancel or rescind the resolution. It was neither the pleaded case of respondent Nos.1 and 2 nor any material was produced by them before the High Court to show that Parmanand Mundhada had taken any action in furtherance of Resolution dated 29.10.1975 and fresh lease deed was executed in his favour. The only plea taken by them was that Parmanand Mundhada had filed an appeal under Section 397(3) read with Section 411 against increase in the ground rent and the imposition of penalty. However, nothing has been said about the fate of that appeal. If Parmanand Mundhada, his heirs or respondent Nos.1 and 2 felt that the disposal of the appeal has been unduly delayed then they could have filed a writ for issue of a mandamus directing the appellate authority to decide the appeal within a specified period but no such step is shown to have been taken by either of them. Therefore, we are constrained to take the view that Resolution dated 29.10.1975 had become redundant and the same can no longer be relied upon by respondent Nos.1 and 2 for claiming any right or interest in the plot.The factual matrix of this case shows that before granting 30 years lease of the plot in favour of the appellant, the Corporation neither issued any advertisement nor followed any procedure consistent with the doctrine of equality so as to enable the members of the public to participate in the process of alienation of public property. Therefore, the conclusion reached by the High Court, though for different reasons, that Resolution dated 28.8.1991 and the sanction accorded by the State Government vide letter dated 12.6.2000 are legally unsustainable does not call for interference by this Court.
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Automotive Manufacturers (P) Ltd. Etc Vs. Govt. Of Andhra Pradesh And Ors. Etc | internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. 7. The argument of learned counsel was that a chassis as such could neither be used nor kept for use in a public place before a body was fitted to it and so long as the said step was not taken, the question of levy of tax under the Act would not arise. We were referred to the different meanings of the word use in the Oxford Dictionary some of which are as follows:- To make use of as a means or instrument; To employ for a profitable end: In our view, it is not necessary for a chassis to have a body attached to it before it can be used within the meaning of the Act inasmuch as it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy. Ordinarily chassis have bodies attached to them for commercially profitable use but even without a body a chassis can be used and is actually used when it is taken over public roads. 8. The second submission was that the appellants qualified for exemption under the Government notification under the Government notification under Section 9 of the Act. Section 9 inter alia provides: (1) The Government may, by notification- (a) grant an exemption, make a reduction in the rate or order other modification not involving an enhancement in the rate of tax payable- (i) by any person or class of persons; or (ii) in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area; xx xx xx The notification issued an as follows: In exercise of the powers conferred by sub-section (1) of Section 9 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (Andhra Pradesh Act 5 of 1963), the Governor of Andhra Pradesh hereby grants exemption of the tax payable in respect of motor vehicles specified in column (1) of the table below subject to the conditions, if any, specified in column (2) thereof. Item (4) of the table reads: Any chassis of a motor vehicle the condition for exemption being: When driven to any place in order that a body may be attached to it. It was argued that as the use of a chassis would be meaningless unless a body is attached to it and all chassis, as a matter of fact, have to have bodies attached to them, the driving of the chassis on the road without a body would qualify for exemption under the above notification. We find ourselves unable to accept this view. Item (4) in the table of the above notification limits the exemption from the tax to the journey of the chassis for the express purpose of a body being attached to it. The Automotive Manufacturers being dealers can and do probably deal with or dispose of the chassis as such. There is no allegation in any of the two writ petitions filed by these appellants that the chassis were coming from Madras or Bombay for the purpose of having bodies attached to them at the workshop of the appellant. In so far as Ashok Leyland Ltd. is concerned, it is their positive case that the chassis were being driven through the State of Andhra Pradesh either for delivery there or in other States of India. They were certainly being driven along the roads of Andhra Pradesh for disposal at the Journeys end and it would be for the purchaser at the destination to have a body fixed to the chassis according to his own need and on the specification given by him. Merely because bodies were going to be attached by the ultimate purchasers, it cannot be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under Item (4) of the notification. 9. The last point urged by counsel was that inasmuch as registration of a vehicle in any State under Section 28 of the Motor Vehicles Act is to be effective throughout India any tax by a State on motor vehicles be they merely chassis or otherwise would run counter to Art. 301 of the Constitution according to which trade, commerce and intercourse throughout the territory of India is to be free subject to the other provisions of Part XIII. Under Art. 304 (b) however it is open to the Legislature of a State to impose such reasonable restruction on the freedom of trade, commerce or intercourse with or within that States as may be required in the public interest. This again is subject to the proviso that no Bill amendment for the purpose of the said cl. (b) is to be introduced in the State Legislature without the previous sanction of the President. Learned counsel wanted to urge that the impost was not saved by Article 304 (b) inter alia, on the ground that there was no previous sanction of the President in respect of the Bill as envisaged by Article 304 (b).We did not allow counsel to press the point inasmuch as it had not been urged in the writ petition and we hereby make it clear that we are not examining the merits of the contention urged by counsel in this regard and it will be open to his clients, if so advised, to urge it in any future proceedings they may choose to take. 10. These appeals were originally heard by a Bench of five Judges including S.C. Roy, J. who expired a few days back. The above judgment was concurred in by our late colleague. We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formed. | 0[ds]We find ourselves unable to accept this view. Item (4) in the table of the above notification limits the exemption from the tax to the journey of the chassis for the express purpose of a body being attached to it. The Automotive Manufacturers being dealers can and do probably deal with or dispose of the chassis as such. There is no allegation in any of the two writ petitions filed by these appellants that the chassis were coming from Madras or Bombay for the purpose of having bodies attached to them at the workshop of the appellant. In so far as Ashok Leyland Ltd. is concerned, it is their positive case that the chassis were being driven through the State of Andhra Pradesh either for delivery there or in other States of India. They were certainly being driven along the roads of Andhra Pradesh for disposal at the Journeys end and it would be for the purchaser at the destination to have a body fixed to the chassis according to his own need and on the specification given by him. Merely because bodies were going to be attached by the ultimate purchasers, it cannot be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under Item (4) of the notification10. These appeals were originally heard by a Bench of five Judges including S.C. Roy, J. who expired a few days back. The above judgment was concurred in by our late colleague. We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formedIn our view, it is not necessary for a chassis to have a body attached to it before it can be used within the meaning of the Act inasmuch as it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy. Ordinarily chassis have bodies attached to them for commercially profitable use but even without a body a chassis can be used and is actually used when it is taken over public roadsWe did not allow counsel to press the point inasmuch as it had not been urged in the writ petition and we hereby make it clear that we are not examining the merits of the contention urged by counsel in this regard and it will be open to his clients, if so advised, to urge it in any future proceedings they may choose to take. | 0 | 1,897 | 448 | ### 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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internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. 7. The argument of learned counsel was that a chassis as such could neither be used nor kept for use in a public place before a body was fitted to it and so long as the said step was not taken, the question of levy of tax under the Act would not arise. We were referred to the different meanings of the word use in the Oxford Dictionary some of which are as follows:- To make use of as a means or instrument; To employ for a profitable end: In our view, it is not necessary for a chassis to have a body attached to it before it can be used within the meaning of the Act inasmuch as it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy. Ordinarily chassis have bodies attached to them for commercially profitable use but even without a body a chassis can be used and is actually used when it is taken over public roads. 8. The second submission was that the appellants qualified for exemption under the Government notification under the Government notification under Section 9 of the Act. Section 9 inter alia provides: (1) The Government may, by notification- (a) grant an exemption, make a reduction in the rate or order other modification not involving an enhancement in the rate of tax payable- (i) by any person or class of persons; or (ii) in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area; xx xx xx The notification issued an as follows: In exercise of the powers conferred by sub-section (1) of Section 9 of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (Andhra Pradesh Act 5 of 1963), the Governor of Andhra Pradesh hereby grants exemption of the tax payable in respect of motor vehicles specified in column (1) of the table below subject to the conditions, if any, specified in column (2) thereof. Item (4) of the table reads: Any chassis of a motor vehicle the condition for exemption being: When driven to any place in order that a body may be attached to it. It was argued that as the use of a chassis would be meaningless unless a body is attached to it and all chassis, as a matter of fact, have to have bodies attached to them, the driving of the chassis on the road without a body would qualify for exemption under the above notification. We find ourselves unable to accept this view. Item (4) in the table of the above notification limits the exemption from the tax to the journey of the chassis for the express purpose of a body being attached to it. The Automotive Manufacturers being dealers can and do probably deal with or dispose of the chassis as such. There is no allegation in any of the two writ petitions filed by these appellants that the chassis were coming from Madras or Bombay for the purpose of having bodies attached to them at the workshop of the appellant. In so far as Ashok Leyland Ltd. is concerned, it is their positive case that the chassis were being driven through the State of Andhra Pradesh either for delivery there or in other States of India. They were certainly being driven along the roads of Andhra Pradesh for disposal at the Journeys end and it would be for the purchaser at the destination to have a body fixed to the chassis according to his own need and on the specification given by him. Merely because bodies were going to be attached by the ultimate purchasers, it cannot be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under Item (4) of the notification. 9. The last point urged by counsel was that inasmuch as registration of a vehicle in any State under Section 28 of the Motor Vehicles Act is to be effective throughout India any tax by a State on motor vehicles be they merely chassis or otherwise would run counter to Art. 301 of the Constitution according to which trade, commerce and intercourse throughout the territory of India is to be free subject to the other provisions of Part XIII. Under Art. 304 (b) however it is open to the Legislature of a State to impose such reasonable restruction on the freedom of trade, commerce or intercourse with or within that States as may be required in the public interest. This again is subject to the proviso that no Bill amendment for the purpose of the said cl. (b) is to be introduced in the State Legislature without the previous sanction of the President. Learned counsel wanted to urge that the impost was not saved by Article 304 (b) inter alia, on the ground that there was no previous sanction of the President in respect of the Bill as envisaged by Article 304 (b).We did not allow counsel to press the point inasmuch as it had not been urged in the writ petition and we hereby make it clear that we are not examining the merits of the contention urged by counsel in this regard and it will be open to his clients, if so advised, to urge it in any future proceedings they may choose to take. 10. These appeals were originally heard by a Bench of five Judges including S.C. Roy, J. who expired a few days back. The above judgment was concurred in by our late colleague. We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formed.
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0
### Explanation:
We find ourselves unable to accept this view. Item (4) in the table of the above notification limits the exemption from the tax to the journey of the chassis for the express purpose of a body being attached to it. The Automotive Manufacturers being dealers can and do probably deal with or dispose of the chassis as such. There is no allegation in any of the two writ petitions filed by these appellants that the chassis were coming from Madras or Bombay for the purpose of having bodies attached to them at the workshop of the appellant. In so far as Ashok Leyland Ltd. is concerned, it is their positive case that the chassis were being driven through the State of Andhra Pradesh either for delivery there or in other States of India. They were certainly being driven along the roads of Andhra Pradesh for disposal at the Journeys end and it would be for the purchaser at the destination to have a body fixed to the chassis according to his own need and on the specification given by him. Merely because bodies were going to be attached by the ultimate purchasers, it cannot be said that the running of the chassis on the roads of Andhra Pradesh would attract exemption under Item (4) of the notification10. These appeals were originally heard by a Bench of five Judges including S.C. Roy, J. who expired a few days back. The above judgment was concurred in by our late colleague. We however gave a further hearing to the parties at which nothing was addressed to us to make us change our opinion already formedIn our view, it is not necessary for a chassis to have a body attached to it before it can be used within the meaning of the Act inasmuch as it can be used by the man who drives it and such use of it on public roads would be enough to attract the levy. Ordinarily chassis have bodies attached to them for commercially profitable use but even without a body a chassis can be used and is actually used when it is taken over public roadsWe did not allow counsel to press the point inasmuch as it had not been urged in the writ petition and we hereby make it clear that we are not examining the merits of the contention urged by counsel in this regard and it will be open to his clients, if so advised, to urge it in any future proceedings they may choose to take.
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Management of Pakshiraja Studios Vs. Hie Workers In Pakshiraja Studios Represented by the Secretary,Commercial & Allied Employees' Union | pictures for producers, by "recording" for talking pictures, by way of hire for "setting" by "processing films" by preparing "still photos", and such other activities, without engaging itself in the production and distribution of the same. There is equally no doubt that there are many studios which are engaged in purely studio activities. Producers of films take the assistance of such studios, for producing films, and have to pay for the service o the studios, irrespective of the profits and losses. There is nothing however to prevent the owner of a studio himself turning a producer, and using his own studio for the same service as an independent producer might have done. When the owner of a Studio turns producer, it is for him to decide, whether he will keep his studio business and the production business separate and distinct or mingle them. If he mingles them, these several sides of his business activities become one unit, vis-a-vis the employees; and he will not be heard to say the high profits of say, the production side, will be disregarded, in deciding whether there is an available surplus. At the same time, if there are heavy losses, in one of the lines, say, production side, the employees will not be heard to say that these losses should be kept out of account in deciding the question of available surplus.4. The question whether two or more units of business under the same ownership form one industrial unit or more has often arisen before the industrial courts. In Pratap Press etc. v. Their Workmen, (1960) 1 Lab LJ 497 at p. 499; (AIR 1960 SC 1213 at p. 1216) the Court pointed out that the most important of the tests which are helpful in deciding the questions are :- "that of functional integrality and the question of unity of finance and employment and of labour" and that in all such cases the Court has to consider with care "how far there is functional integrality meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated."5. Applying these principles, we find that while the several lines of activities carried on by the Pakshiraja Studios should exist independently of each other, it is quite clear that the owner decided to mix them up. There is, in the first place, one capital fund for the two lines of business, there being one bank account; one cash book is maintained. Separate staff is not maintained. There is one accountant for both the production side and the studio side; the administrative staff is also the same. It is true that a studio account was prepared separately from the picture trading account. But that is of little relevance on our present question. A good businessman, having several lines, in a single business unit will often think it worthwhile to examine the comparative success of the different lines. Thus a merchant dealing in both male and female attire may find it worthwhile to have separate statements showing his profits and loss on the two lines. It would be unreasonable to say that he was thereby turning the business into two different businesses. It appears that in the General Ledger of the Pakshiraja Studios, there were among other accounts, one account in the name of the "Processing Revenue", one in the name of "Shooting Hire Revenue", one in the name of Recording Hire Revenue". The receipts on all these accounts making up a total of Rs. 2,76,792-4-0 are shown on the Receipt of the Trading Account for the Studio business, while the expenses of the Studio and the consumption of stores, are shown on the expenditure side of the same account. A separate balance-sheet is prepared for the picture side. The "trading account" of this sets out the losses on three pictures produced by the studio for the owner and the profits on three pictures produced by the studio for the same owner and show the net profit as Rs. 11,60,834-14-8.6. On behalf of the appellant, great emphasis has been laid on this fact of the trading account of the studios, and the trading account of the pictures having been separately prepared, and the further fact that this separate balance-sheet "of the picture business was filed before the Income-tax Officer". We are not however concerned with what happened before the income-tax Officer. If there had been any loss on either the Studio line or on the production line, and the owner had still kept the two separate in his income-tax statements, that might have been of some assistance to show that he himself treated the two lines as separate and distinct. The however is not the position here. Consequently, the fact that a separate balance-sheet of profit and loss account for the "picture" side was produced before the Income-tax Officer cannot furnish any reason for thinking that the owner was keeping the picture side separate from the studio side. Whatever tendency this fact that separate balance sheets were prepared for these different lines of business might have had by itself to show that these were distinct units, is totally nullified by the numerous circumstances set out by the Tribunal, some of which have been mentioned above, viz., the fact that one single Bank Account was maintained; no separate staff was maintained for the production side; there is one accountant for the two sides of the business; the administrative staff was also the same.7. We have therefore come to the conclusion that the Tribunal has applied the correct principles for the decision of the question before it - whether the studio line of Pakshiraja Studios was distinct from the production and distribution side of the same, and has come to the correct conclusion in holding that they were not distinct, but together form one single industrial unit. The award of bonus was therefore fully justified. | 0[ds]4. The question whether two or more units of business under the same ownership form one industrial unit or more has often arisen before the industrial courts. In Pratap Press etc. v. Their Workmen, (1960) 1 Lab LJ 497 at p. 499; (AIR 1960 SC 1213 at p. 1216) the Court pointed out that the most important of the tests which are helpful in deciding the questions are :"that of functional integrality and the question of unity of finance and employment and of labour" and that in all such cases the Court has to consider with care "how far there is functional integrality meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated."5. Applying these principles, we find that while the several lines of activities carried on by the Pakshiraja Studios should exist independently of each other, it is quite clear that the owner decided to mix them up. There is, in the first place, one capital fund for the two lines of business, there being one bank account; one cash book is maintained. Separate staff is not maintained. There is one accountant for both the production side and the studio side; the administrative staff is also the same.On behalf of the appellant, great emphasis has been laid on this fact of the trading account of the studios, and the trading account of the pictures having been separately prepared, and the further fact that this separatef the picture business was filed before the. We are not however concerned with what happened before theOfficer. If there had been any loss on either the Studio line or on the production line, and the owner had still kept the two separate in hisstatements, that might have been of some assistance to show that he himself treated the two lines as separate and distinct. The however is not the position here. Consequently, the fact that a separateof profit and loss account for the "picture" side was produced before theOfficer cannot furnish any reason for thinking that the owner was keeping the picture side separate from the studio side. Whatever tendency this fact that separate balance sheets were prepared for these different lines of business might have had by itself to show that these were distinct units, is totally nullified by the numerous circumstances set out by the Tribunal, some of which have been mentioned above, viz., the fact that one single Bank Account was maintained; no separate staff was maintained for the production side; there is one accountant for the two sides of the business; the administrative staff was also the same.7. We have therefore come to the conclusion that the Tribunal has applied the correct principles for the decision of the question before itwhether the studio line of Pakshiraja Studios was distinct from the production and distribution side of the same, and has come to the correct conclusion in holding that they were not distinct, but together form one single industrial unit. | 0 | 1,503 | 573 | ### 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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pictures for producers, by "recording" for talking pictures, by way of hire for "setting" by "processing films" by preparing "still photos", and such other activities, without engaging itself in the production and distribution of the same. There is equally no doubt that there are many studios which are engaged in purely studio activities. Producers of films take the assistance of such studios, for producing films, and have to pay for the service o the studios, irrespective of the profits and losses. There is nothing however to prevent the owner of a studio himself turning a producer, and using his own studio for the same service as an independent producer might have done. When the owner of a Studio turns producer, it is for him to decide, whether he will keep his studio business and the production business separate and distinct or mingle them. If he mingles them, these several sides of his business activities become one unit, vis-a-vis the employees; and he will not be heard to say the high profits of say, the production side, will be disregarded, in deciding whether there is an available surplus. At the same time, if there are heavy losses, in one of the lines, say, production side, the employees will not be heard to say that these losses should be kept out of account in deciding the question of available surplus.4. The question whether two or more units of business under the same ownership form one industrial unit or more has often arisen before the industrial courts. In Pratap Press etc. v. Their Workmen, (1960) 1 Lab LJ 497 at p. 499; (AIR 1960 SC 1213 at p. 1216) the Court pointed out that the most important of the tests which are helpful in deciding the questions are :- "that of functional integrality and the question of unity of finance and employment and of labour" and that in all such cases the Court has to consider with care "how far there is functional integrality meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated."5. Applying these principles, we find that while the several lines of activities carried on by the Pakshiraja Studios should exist independently of each other, it is quite clear that the owner decided to mix them up. There is, in the first place, one capital fund for the two lines of business, there being one bank account; one cash book is maintained. Separate staff is not maintained. There is one accountant for both the production side and the studio side; the administrative staff is also the same. It is true that a studio account was prepared separately from the picture trading account. But that is of little relevance on our present question. A good businessman, having several lines, in a single business unit will often think it worthwhile to examine the comparative success of the different lines. Thus a merchant dealing in both male and female attire may find it worthwhile to have separate statements showing his profits and loss on the two lines. It would be unreasonable to say that he was thereby turning the business into two different businesses. It appears that in the General Ledger of the Pakshiraja Studios, there were among other accounts, one account in the name of the "Processing Revenue", one in the name of "Shooting Hire Revenue", one in the name of Recording Hire Revenue". The receipts on all these accounts making up a total of Rs. 2,76,792-4-0 are shown on the Receipt of the Trading Account for the Studio business, while the expenses of the Studio and the consumption of stores, are shown on the expenditure side of the same account. A separate balance-sheet is prepared for the picture side. The "trading account" of this sets out the losses on three pictures produced by the studio for the owner and the profits on three pictures produced by the studio for the same owner and show the net profit as Rs. 11,60,834-14-8.6. On behalf of the appellant, great emphasis has been laid on this fact of the trading account of the studios, and the trading account of the pictures having been separately prepared, and the further fact that this separate balance-sheet "of the picture business was filed before the Income-tax Officer". We are not however concerned with what happened before the income-tax Officer. If there had been any loss on either the Studio line or on the production line, and the owner had still kept the two separate in his income-tax statements, that might have been of some assistance to show that he himself treated the two lines as separate and distinct. The however is not the position here. Consequently, the fact that a separate balance-sheet of profit and loss account for the "picture" side was produced before the Income-tax Officer cannot furnish any reason for thinking that the owner was keeping the picture side separate from the studio side. Whatever tendency this fact that separate balance sheets were prepared for these different lines of business might have had by itself to show that these were distinct units, is totally nullified by the numerous circumstances set out by the Tribunal, some of which have been mentioned above, viz., the fact that one single Bank Account was maintained; no separate staff was maintained for the production side; there is one accountant for the two sides of the business; the administrative staff was also the same.7. We have therefore come to the conclusion that the Tribunal has applied the correct principles for the decision of the question before it - whether the studio line of Pakshiraja Studios was distinct from the production and distribution side of the same, and has come to the correct conclusion in holding that they were not distinct, but together form one single industrial unit. The award of bonus was therefore fully justified.
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4. The question whether two or more units of business under the same ownership form one industrial unit or more has often arisen before the industrial courts. In Pratap Press etc. v. Their Workmen, (1960) 1 Lab LJ 497 at p. 499; (AIR 1960 SC 1213 at p. 1216) the Court pointed out that the most important of the tests which are helpful in deciding the questions are :"that of functional integrality and the question of unity of finance and employment and of labour" and that in all such cases the Court has to consider with care "how far there is functional integrality meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated."5. Applying these principles, we find that while the several lines of activities carried on by the Pakshiraja Studios should exist independently of each other, it is quite clear that the owner decided to mix them up. There is, in the first place, one capital fund for the two lines of business, there being one bank account; one cash book is maintained. Separate staff is not maintained. There is one accountant for both the production side and the studio side; the administrative staff is also the same.On behalf of the appellant, great emphasis has been laid on this fact of the trading account of the studios, and the trading account of the pictures having been separately prepared, and the further fact that this separatef the picture business was filed before the. We are not however concerned with what happened before theOfficer. If there had been any loss on either the Studio line or on the production line, and the owner had still kept the two separate in hisstatements, that might have been of some assistance to show that he himself treated the two lines as separate and distinct. The however is not the position here. Consequently, the fact that a separateof profit and loss account for the "picture" side was produced before theOfficer cannot furnish any reason for thinking that the owner was keeping the picture side separate from the studio side. Whatever tendency this fact that separate balance sheets were prepared for these different lines of business might have had by itself to show that these were distinct units, is totally nullified by the numerous circumstances set out by the Tribunal, some of which have been mentioned above, viz., the fact that one single Bank Account was maintained; no separate staff was maintained for the production side; there is one accountant for the two sides of the business; the administrative staff was also the same.7. We have therefore come to the conclusion that the Tribunal has applied the correct principles for the decision of the question before itwhether the studio line of Pakshiraja Studios was distinct from the production and distribution side of the same, and has come to the correct conclusion in holding that they were not distinct, but together form one single industrial unit.
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Indian Bank Vs. Abs Marine Products Pvt. Ltd | issue not arising for decision, are also in the nature of law declared by this Court, the first Respondent contends that they are merely observations made on the peculiar facts and circumstances of that case, in exercise of the power under Article 142 to do complete justice. 21. The first Respondent drew our attention to the following circumstances in support of its contention that the observations relating to treating a borrowers independent suit as a counter claim, was in exercise of power under Article 142: (a) Though there was no prayer for transfer of the borrowers suit to Tribunal at any stage, this Court held that borrowers suit should be transferred to the Tribunal. (b) The four questions that were formulated for consideration (extracted above) clearly showed that the question as to whether borrowers suit should be transferred never arose for consideration. In fact, no arguments were addressed by either party on the question whether the borrowers suit can be or should be transferred to the Tribunal. (c) Sub-section (8) of Section 19 refers only to a counter-claim in the Bank application, and does not contemplate a separate suit filed against a Bank, being treated as a counter-claim. The first respondent also pointed out that this Court, in the operative portion, only directly transfer of Banks suit, but not the borrowers suit, to the Tribunal. The first respondent also relied on the following observations/directions in paras 42, 43, 44 and 45 of the judgment to demonstrate that the decision was by exercising power under Article 142: Our decision in regard to the real nature of Suit No.272 of 1985 has become necessary in the context of a plea by the debtor Company that the Companys Suit No.272 of 1985 is liable to be retained in the civil court and on account of the plea that the connected suit by the Bank Suit No.410 of 1985 is also to be retained. We, therefore, direct the Banks Suit No.410 of 1985 to be transferred by the Registrar, Calcutta High Court to the appropriate Tribunal under the Act. So far as the debtor Companys Suit No.272 of 1985 is concerned, action has to be taken likewise by the Registrar in the light of our finding, which finding has become necessary in view of the contention on behalf of the debtor Company before us, as explained above. The pendency of the Companys Suit No. 272 of 1985 in the High Court is no reason for keeping the Banks suit No. 410 of 1985 in the High Court. Suit No. 410 of 1985 is liable to be transferred to the Tribunal. Incidentally, we also hold that even Suit No. 272 of 1985 is to be tried only by the Tribunal. The appeal is allowed. The order of the learned Single Judge is set aside and Suit No. 410 of 1985 is directed to be transferred by the Registrar, High Court to the Tribunal. In the light of our finding as to the real nature of the Companys Suit No. 272 of 1985, it will be for the Registrar of the High Court to pass appropriate orders. We hope that appropriate orders will be passed in relation to suit no. 272 of 1985 expeditiously, at any rate, within one month from today. (Emphasis supplied) It is further submitted that any direction issued in exercise of power under Article 142 to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by this Court under Article 141. It is pointed out that other courts do not have the power similar to that conferred on this Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. 22. Though there appears to be some merit in the first Respondents submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in Banks application) can be deemed to be a counter claim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:- (i) The subject matter of Banks suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other. (ii) Both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as a counter-claim in Banks application before the Tribunal, so that both can be heard and disposed of by the Tribunal. In short the decision in Abhijit is distinguishable both on facts and law. 23. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Art. 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Art. 142. Be that as it may. Conclusion | 0[ds]16. Making a counter claim in the Banks application before the Tribunal is not the only remedy, but an option available to the borrower/defendant. He can also file a separate suit or proceeding before a civil court or other appropriate forum in respect of his claim against the Bank and pursue the same. Even the Bank, in whose application the counter-claim is made, has the option to apply to the tribunal to exclude the counter-claim of the defendant while considering its application. When such application is made by the Bank, the Tribunal may either refuse to exclude the counter-claim and proceed to consider the Banks application and the counter-claim together; or exclude the counter-claim as prayed, and proceed only with the Banks application, in which event the counter-claim becomes an independent claim against a bank/financial institution. The defendant will then have to approach the civil court in respect of such excluded counter claim as the Tribunal does not have jurisdiction to try any independent claim against a bank/financial institution. A defendant in an application, having an independent claim against the Bank, cannot be compelled to make his claim against the Bank only by way of a counter-claim. Nor can his claim by way of independent suit in a court having jurisdiction, be transferred to a Tribunal against his wishes17. In this case, the first respondent does not wish his case to be transferred to the Tribunal. It is, therefore, clear that the suit filed by the first respondent against the Bank in the High Court for recovery of damages, being an independent suit, and not a counter-claim made in the application filed by the bank, the Banks application for transfer of the said suit to the Tribunal was misconceived and not maintainable. The High Court, where the suit for damages was filed by the company against the bank, long prior to the bank filing an application before the tribunal against the company, continues to have jurisdiction in regard to the suit and its jurisdiction is not excluded or barred under Section 18 or any other provision of Debts Recovery Act19. With reference to the first issue, this Court held that when the appeal against the compromise decree dated 29.3.1984 was allowed and the compromise decree was set aside, the suit stood restored and it should be deemed to be pending from 29.3.1984 itself, and consequently, must be deemed in the eye of law to be pending on 27.4.1994 when the Tribunal was constituted at Calcutta, and Sections 18 and 31 of the Debts Recovery Act would apply to the said suit. There is no dispute that the decision of this Court on the first issue is the law declared by this Court20. The second issue, as noticed above, was whether the suit of the Bank against the borrower should be retained in the High Court, merely because the borrowers suit was pending in the High Court. There was no application or prayer for transfer of the borrowers suit [OS No.272/1985] to the Debts Recovery Tribunal. Neither the Bank nor the borrower had sought transfer of the said suit from the High Court. In fact, before the High Court, the borrower had not even contended that the Banks suit should be retained in the High Court on the ground that it was inextricably connected with its suit pending in the High Court. However, the borrower raised an additional ground in support of its request for retention of the Banks suit in the High Court, for the first time, in this Court by contending that the subject matter of the Banks suit was inextricably connected with the subject matter of its suit, and therefore, both should be tried together by the High Court itself. The borrower submitted that as the borrowers suit could not be transferred to the Tribunal, having regard to Sections 17, 18 and 31 of the Debts Recovery Act, the Banks suit should also not be transferred to the tribunal. This Court held that having regard to the mandate contained in Section 31, it was not possible to retain the Banks suit before the civil (High) Court on the ground that it was connected with another suit filed against the Bank. This answered the second issue. But this Court thereafter proceeded to consider as an incidental issue whether the borrowers suit could be transferred to the Tribunal as the borrower was insisting that his suit and Banks suit should be tried together. It found a solution by holding that the principle underlyingn (8) of Section 19 which enabled the defendant making am in an application filed by the Bank, can broadly be extended and applied to an independent prior suit of the borrower by considering such suit as a, so that both could be transferred to the Tribunal, instead of transferring only the Banks suit22. Though there appears to be some merit in the first Respondents submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in Banks application) can be deemed to be a counter claim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:(i) The subject matter of Banks suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other(ii) Both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as am in Banks application before the Tribunal, so that both can be heard and disposed of by the TribunalIn short the decision in Abhijit is distinguishable both on facts and law23. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court | 0 | 6,865 | 1,214 | ### Instruction:
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issue not arising for decision, are also in the nature of law declared by this Court, the first Respondent contends that they are merely observations made on the peculiar facts and circumstances of that case, in exercise of the power under Article 142 to do complete justice. 21. The first Respondent drew our attention to the following circumstances in support of its contention that the observations relating to treating a borrowers independent suit as a counter claim, was in exercise of power under Article 142: (a) Though there was no prayer for transfer of the borrowers suit to Tribunal at any stage, this Court held that borrowers suit should be transferred to the Tribunal. (b) The four questions that were formulated for consideration (extracted above) clearly showed that the question as to whether borrowers suit should be transferred never arose for consideration. In fact, no arguments were addressed by either party on the question whether the borrowers suit can be or should be transferred to the Tribunal. (c) Sub-section (8) of Section 19 refers only to a counter-claim in the Bank application, and does not contemplate a separate suit filed against a Bank, being treated as a counter-claim. The first respondent also pointed out that this Court, in the operative portion, only directly transfer of Banks suit, but not the borrowers suit, to the Tribunal. The first respondent also relied on the following observations/directions in paras 42, 43, 44 and 45 of the judgment to demonstrate that the decision was by exercising power under Article 142: Our decision in regard to the real nature of Suit No.272 of 1985 has become necessary in the context of a plea by the debtor Company that the Companys Suit No.272 of 1985 is liable to be retained in the civil court and on account of the plea that the connected suit by the Bank Suit No.410 of 1985 is also to be retained. We, therefore, direct the Banks Suit No.410 of 1985 to be transferred by the Registrar, Calcutta High Court to the appropriate Tribunal under the Act. So far as the debtor Companys Suit No.272 of 1985 is concerned, action has to be taken likewise by the Registrar in the light of our finding, which finding has become necessary in view of the contention on behalf of the debtor Company before us, as explained above. The pendency of the Companys Suit No. 272 of 1985 in the High Court is no reason for keeping the Banks suit No. 410 of 1985 in the High Court. Suit No. 410 of 1985 is liable to be transferred to the Tribunal. Incidentally, we also hold that even Suit No. 272 of 1985 is to be tried only by the Tribunal. The appeal is allowed. The order of the learned Single Judge is set aside and Suit No. 410 of 1985 is directed to be transferred by the Registrar, High Court to the Tribunal. In the light of our finding as to the real nature of the Companys Suit No. 272 of 1985, it will be for the Registrar of the High Court to pass appropriate orders. We hope that appropriate orders will be passed in relation to suit no. 272 of 1985 expeditiously, at any rate, within one month from today. (Emphasis supplied) It is further submitted that any direction issued in exercise of power under Article 142 to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by this Court under Article 141. It is pointed out that other courts do not have the power similar to that conferred on this Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. 22. Though there appears to be some merit in the first Respondents submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in Banks application) can be deemed to be a counter claim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:- (i) The subject matter of Banks suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other. (ii) Both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as a counter-claim in Banks application before the Tribunal, so that both can be heard and disposed of by the Tribunal. In short the decision in Abhijit is distinguishable both on facts and law. 23. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Art. 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Art. 142. Be that as it may. Conclusion
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counter-claim together; or exclude the counter-claim as prayed, and proceed only with the Banks application, in which event the counter-claim becomes an independent claim against a bank/financial institution. The defendant will then have to approach the civil court in respect of such excluded counter claim as the Tribunal does not have jurisdiction to try any independent claim against a bank/financial institution. A defendant in an application, having an independent claim against the Bank, cannot be compelled to make his claim against the Bank only by way of a counter-claim. Nor can his claim by way of independent suit in a court having jurisdiction, be transferred to a Tribunal against his wishes17. In this case, the first respondent does not wish his case to be transferred to the Tribunal. It is, therefore, clear that the suit filed by the first respondent against the Bank in the High Court for recovery of damages, being an independent suit, and not a counter-claim made in the application filed by the bank, the Banks application for transfer of the said suit to the Tribunal was misconceived and not maintainable. The High Court, where the suit for damages was filed by the company against the bank, long prior to the bank filing an application before the tribunal against the company, continues to have jurisdiction in regard to the suit and its jurisdiction is not excluded or barred under Section 18 or any other provision of Debts Recovery Act19. With reference to the first issue, this Court held that when the appeal against the compromise decree dated 29.3.1984 was allowed and the compromise decree was set aside, the suit stood restored and it should be deemed to be pending from 29.3.1984 itself, and consequently, must be deemed in the eye of law to be pending on 27.4.1994 when the Tribunal was constituted at Calcutta, and Sections 18 and 31 of the Debts Recovery Act would apply to the said suit. There is no dispute that the decision of this Court on the first issue is the law declared by this Court20. The second issue, as noticed above, was whether the suit of the Bank against the borrower should be retained in the High Court, merely because the borrowers suit was pending in the High Court. There was no application or prayer for transfer of the borrowers suit [OS No.272/1985] to the Debts Recovery Tribunal. Neither the Bank nor the borrower had sought transfer of the said suit from the High Court. In fact, before the High Court, the borrower had not even contended that the Banks suit should be retained in the High Court on the ground that it was inextricably connected with its suit pending in the High Court. However, the borrower raised an additional ground in support of its request for retention of the Banks suit in the High Court, for the first time, in this Court by contending that the subject matter of the Banks suit was inextricably connected with the subject matter of its suit, and therefore, both should be tried together by the High Court itself. The borrower submitted that as the borrowers suit could not be transferred to the Tribunal, having regard to Sections 17, 18 and 31 of the Debts Recovery Act, the Banks suit should also not be transferred to the tribunal. This Court held that having regard to the mandate contained in Section 31, it was not possible to retain the Banks suit before the civil (High) Court on the ground that it was connected with another suit filed against the Bank. This answered the second issue. But this Court thereafter proceeded to consider as an incidental issue whether the borrowers suit could be transferred to the Tribunal as the borrower was insisting that his suit and Banks suit should be tried together. It found a solution by holding that the principle underlyingn (8) of Section 19 which enabled the defendant making am in an application filed by the Bank, can broadly be extended and applied to an independent prior suit of the borrower by considering such suit as a, so that both could be transferred to the Tribunal, instead of transferring only the Banks suit22. Though there appears to be some merit in the first Respondents submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in Banks application) can be deemed to be a counter claim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:(i) The subject matter of Banks suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other(ii) Both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as am in Banks application before the Tribunal, so that both can be heard and disposed of by the TribunalIn short the decision in Abhijit is distinguishable both on facts and law23. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court
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M/S UTKAL SUPPLIERS Vs. M/S MAA KANAK DURGA ENTERPRISES & ORS | to any of these decisions, and in second-guessing the authoritys requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. Section 4 of the Orissa Act reads as follows: 4. Registration of establishment.–(1) Within the period specified in sub-section (4), the employer of every establishment shall send to the Inspector of the area concerned, a statement in the prescribed form, together with such fees as may be prescribed, containing– (a) the name of the employer arid the manager, if any; (b) the postal address of the establishment; (c) the name, if any, of the establishment; (d) the category of the establishment, that is whether it be a shop, commercial establishment, hotel, restaurant, cafe, boarding or eating house, theatre or other place of public amusement of entertainment; and (e) such other particulars as may be prescribed. (2) No adolescent shall be allowed to work in any employment for more than six hours in a day. (3) In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall refer the matter-to the Chief Inspector who shall, after such enquiry as may be prescribed, decide the category of such establishment and his decision shall be final for the purpose of this Act. (4) Within thirty days from the date mentioned in Column (2) below in respect of an establishment mentioned in Column (1), the statement together with fees shall be sent to the Inspector under sub-section (1)– CHART A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act. 15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the said Act reads as follows: 1. Short title, extent, commencement and application.— xxx xxx xxx (4) It applies— (a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour; (b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen: Provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification. The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authoritys interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide. 16. The High Courts characterising the action of accepting the Appellants tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows: 22. That, in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ application. This plea was answered by the authority in its counter affidavit filed before the High Court as follows: 15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that, the bidding process has been concluded in a transparent manner adhering to the required guidelines made thereto. It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e. (i) submission of valid Labour licence; (ii) submission of proper certificate of continuous three years experience in diet preparation and supply to Government/Reputed Private Health Institution having minimum 200 bed strength. As a result, the Tender Committee disqualified the bid of the petitioner. It is further submitted that after thorough examination of the documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the L-1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393/Fdt.08.06.2012 after due examination of records has recommended to place the work order with the L-1 bidder. Accordingly, the work order has been issued in favour of the L-1 bidder (O.P. No. 5) vide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f. 01.12.2020. A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case. | 1[ds]10. Having heard learned counsel appearing on behalf of the Appellant and Respondent no.1, what is clear is that the authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act. This is also clear from a reading of the tender document as a whole, and in particular, clauses VI.20.6, VI.20.20 and VI.20.21Sub-clauses (20) and (21), in particular, make it clear that the staff employed would be employed by the agency as contract labour, the agency being responsible to make alternative arrangements in cases where their staff goes on strike.11. This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India, (1994) 6 SCC 651 , paragraph 94 of which states as follows:94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.12. Equally, this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 [Afcons], has laid down: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 [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 in 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.13. In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035, after referring to paragraph 15 of Afcons (supra), it was held:15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335, under the heading Deference to authoritys interpretation, this Court stated:51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818 )53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality.(emphasis in original)16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows:20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.(emphasis in original)17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word both appearing in Condition No. 31 of the N.I.T. For this reason, the Division Benchs conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.14. The High Court has not adverted to any of these decisions, and in second-guessing the authoritys requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department.A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act.15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced.The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authoritys interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide.16. The High Courts characterising the action of accepting the Appellants tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows:22. That, in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ application.This plea was answered by the authority in its counter affidavit filed before the High Court as follows:15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that, the bidding process has been concluded in a transparent manner adhering to the required guidelines made thereto.It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e. (i) submission of valid Labour licence; (ii) submission of proper certificate of continuous three years experience in diet preparation and supply to Government/Reputed Private Health Institution having minimum 200 bed strength. As a result, the Tender Committee disqualified the bid of the petitioner.It is further submitted that after thorough examination of the documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the L-1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393/Fdt.08.06.2012 after due examination of records has recommended to place the work order with the L-1 bidder. Accordingly, the work order has been issued in favour of the L-1 bidder (O.P. No. 5) vide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f. 01.12.2020.A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case. | 1 | 4,496 | 2,022 | ### 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:
to any of these decisions, and in second-guessing the authoritys requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. Section 4 of the Orissa Act reads as follows: 4. Registration of establishment.–(1) Within the period specified in sub-section (4), the employer of every establishment shall send to the Inspector of the area concerned, a statement in the prescribed form, together with such fees as may be prescribed, containing– (a) the name of the employer arid the manager, if any; (b) the postal address of the establishment; (c) the name, if any, of the establishment; (d) the category of the establishment, that is whether it be a shop, commercial establishment, hotel, restaurant, cafe, boarding or eating house, theatre or other place of public amusement of entertainment; and (e) such other particulars as may be prescribed. (2) No adolescent shall be allowed to work in any employment for more than six hours in a day. (3) In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall refer the matter-to the Chief Inspector who shall, after such enquiry as may be prescribed, decide the category of such establishment and his decision shall be final for the purpose of this Act. (4) Within thirty days from the date mentioned in Column (2) below in respect of an establishment mentioned in Column (1), the statement together with fees shall be sent to the Inspector under sub-section (1)– CHART A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act. 15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the said Act reads as follows: 1. Short title, extent, commencement and application.— xxx xxx xxx (4) It applies— (a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour; (b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen: Provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification. The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authoritys interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide. 16. The High Courts characterising the action of accepting the Appellants tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows: 22. That, in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ application. This plea was answered by the authority in its counter affidavit filed before the High Court as follows: 15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that, the bidding process has been concluded in a transparent manner adhering to the required guidelines made thereto. It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e. (i) submission of valid Labour licence; (ii) submission of proper certificate of continuous three years experience in diet preparation and supply to Government/Reputed Private Health Institution having minimum 200 bed strength. As a result, the Tender Committee disqualified the bid of the petitioner. It is further submitted that after thorough examination of the documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the L-1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393/Fdt.08.06.2012 after due examination of records has recommended to place the work order with the L-1 bidder. Accordingly, the work order has been issued in favour of the L-1 bidder (O.P. No. 5) vide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f. 01.12.2020. A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case.
### Response:
1
### Explanation:
on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818 )53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCLs interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality.(emphasis in original)16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows:20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.(emphasis in original)17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word both appearing in Condition No. 31 of the N.I.T. For this reason, the Division Benchs conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.14. The High Court has not adverted to any of these decisions, and in second-guessing the authoritys requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department.A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, can only be a labour licence under the Contract Labour Act.15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced.The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authoritys interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide.16. The High Courts characterising the action of accepting the Appellants tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows:22. That, in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp. Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB, so accordingly, with a malafide intention both have connived and a pre-planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp. Party No. 3 is to create some litigation so that, the opposite parties can continue during pendency of the writ application.This plea was answered by the authority in its counter affidavit filed before the High Court as follows:15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that, the bidding process has been concluded in a transparent manner adhering to the required guidelines made thereto.It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e. (i) submission of valid Labour licence; (ii) submission of proper certificate of continuous three years experience in diet preparation and supply to Government/Reputed Private Health Institution having minimum 200 bed strength. As a result, the Tender Committee disqualified the bid of the petitioner.It is further submitted that after thorough examination of the documents, M/s. Utkal Suppliers (O.P. No. 5) came out to be the L-1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393/Fdt.08.06.2012 after due examination of records has recommended to place the work order with the L-1 bidder. Accordingly, the work order has been issued in favour of the L-1 bidder (O.P. No. 5) vide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f. 01.12.2020.A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case.
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The Punjab National Bank Vs. Union of India & Another | Mathew, J.1. This appeal, by special leave, is against an order passed by the High Court of Delhi refusing to grant a certificate to the appellant under Article 133 (1) (c) of the Constitution to appeal to this Court.2. The High Court had dismissed in limine a writ petition filed by the appellant challenging the validity of the proceedings under the Land Acquisition Act for acquiring the property in question. The appellant thereafter applied to the High Court for a certificate under Article 133 (1) (c). The High Court dismissed the application.3. The appellant filed a petition for a special leave against the order dismissing the writ petition as also another against the order refusing to grant the certificate.4. This Court dismissed the petition for leave to appeal against the order dismissing the writ petition, but granted special leave to appeal against the order refusing to grant the certificate.5. As already stated, the application to the High Court for grant of certificate was made only under Article 133 (1) (c). But, in the petition for leave to appeal before this Court, it was stated:"That the petitioner-Bank filed an application being S. C. A. No. 104 of 1967 under Article 133 of the Constitution of India for grant of certificate for appeal to the Supreme Court."And, in the statement of grounds for the petition for leave to appeal, it was stated:"the amount or value of the subject-matter of dispute in the High Court and still in dispute in appeal in this Honble Court was and is not less than Rupees 20,000/- and the petitioner was entitled to the certificate under Article 133 (1) (a) of the Constitution of India.........in any case, the judgment, decree or final order of the Honble High Court ........involved directly or indirectly some claim or question respecting property of the amount or value of more than Rs. 20,000/- and the petitioner was entitled to certificate under Article 133 (1) (b) of the Constitution of India as of right".6. The statement that the appellant filed an application under Art. 133, without specifying the clause under which the application was made, was, to say the least, misleading. The ground in the petition for leave to appeal referred to above would suggest that the application to the High Court for certificate was made not only under Article 133 (1) (c), but also under Article 133 (1) (a) or alternatively under Article 133 (1) (b). In other words, the statement in the special leave petition that the application was made to the High Court for a certificate under Article 133,without specifying the sub-clause under which it was made, coupled with the statement in the grounds in the special leave petition that the appellant was entitled, as a matter of right, to a certificate under Article 133 (1) (a) or (b) was calculated to mislead the Court, or, at any rate, was likely to mislead the Court, in the absence of any statement that the appellant applied to the High Court only under Article 133 (1) (c) and the High Court refused to grant the certificate only under that sub-clause. It is very doubtful whether this Court would have granted special leave to appeal, if this Court had been told that the application for grant of certificate to the High Court was made under Article 133 (1) (c).When this Court rejected the application for special leave to appeal against the order dismissing the writ petition, it is very problematical whether it would have granted special leave to appeal against the order refusing to grant a certificate under Article 133 (1) (c), if the Court had been appraised of the fact that the application for certificate to the High Court was made only under that sub-clause.7. This Court has been very strict in its requirement that, in a petition under Article 136, the applicant should state all material facts which have a bearing on the question of the exercise of the discretion, correctly. And, if any statement is made in the petition which has a bearing on its maintainability, and which is calculated or likely to mislead, the court would revoke the order granting special leave (see the decision in Rajabhai Abdul Rehman v. Vasudev Dhanjibhai (1964) 3 SCR 480 = (AIR 1964 SC 345 ).8. In dealing with an application for special leave, this Court takes the statement of fact and grounds of fact contained in the application at their face value and it would be unfair to betray the confidence of this Court by making statements which are untrue or misleading (see the decision in Hari Narain v. Badri Das, (1964) 2 SCR 203 = (AIR 1963 SC 1558 )). | 1[ds]6. The statement that the appellant filed an application under Art. 133, without specifying the clause under which the application was made, was, to say the least, misleading. The ground in the petition for leave to appeal referred to above would suggest that the application to the High Court for certificate was made not only under Article 133 (1) (c), but also under Article 133 (1) (a) or alternatively under Article 133 (1) (b). In other words, the statement in the special leave petition that the application was made to the High Court for a certificate under Article 133,without specifying theunder which it was made, coupled with the statement in the grounds in the special leave petition that the appellant was entitled, as a matter of right, to a certificate under Article 133 (1) (a) or (b) was calculated to mislead the Court, or, at any rate, was likely to mislead the Court, in the absence of any statement that the appellant applied to the High Court only under Article 133 (1) (c) and the High Court refused to grant the certificate only under thatThis Court has been very strict in its requirement that, in a petition under Article 136, the applicant should state all material facts which have a bearing on the question of the exercise of the discretion, correctly. And, if any statement is made in the petition which has a bearing on its maintainability, and which is calculated or likely to mislead, the court would revoke the order granting special leave (see the decision in Rajabhai Abdul Rehman v. Vasudev Dhanjibhai (1964) 3 SCR 480 = (AIR 1964 SC 345 ).8. In dealing with an application for special leave, this Court takes the statement of fact and grounds of fact contained in the application at their face value and it would be unfair to betray the confidence of this Court by making statements which are untrue or misleading (see the decision in Hari Narain v. Badri Das, (1964) 2 SCR 203 = (AIR 1963 SC 1558 )). | 1 | 911 | 406 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Mathew, J.1. This appeal, by special leave, is against an order passed by the High Court of Delhi refusing to grant a certificate to the appellant under Article 133 (1) (c) of the Constitution to appeal to this Court.2. The High Court had dismissed in limine a writ petition filed by the appellant challenging the validity of the proceedings under the Land Acquisition Act for acquiring the property in question. The appellant thereafter applied to the High Court for a certificate under Article 133 (1) (c). The High Court dismissed the application.3. The appellant filed a petition for a special leave against the order dismissing the writ petition as also another against the order refusing to grant the certificate.4. This Court dismissed the petition for leave to appeal against the order dismissing the writ petition, but granted special leave to appeal against the order refusing to grant the certificate.5. As already stated, the application to the High Court for grant of certificate was made only under Article 133 (1) (c). But, in the petition for leave to appeal before this Court, it was stated:"That the petitioner-Bank filed an application being S. C. A. No. 104 of 1967 under Article 133 of the Constitution of India for grant of certificate for appeal to the Supreme Court."And, in the statement of grounds for the petition for leave to appeal, it was stated:"the amount or value of the subject-matter of dispute in the High Court and still in dispute in appeal in this Honble Court was and is not less than Rupees 20,000/- and the petitioner was entitled to the certificate under Article 133 (1) (a) of the Constitution of India.........in any case, the judgment, decree or final order of the Honble High Court ........involved directly or indirectly some claim or question respecting property of the amount or value of more than Rs. 20,000/- and the petitioner was entitled to certificate under Article 133 (1) (b) of the Constitution of India as of right".6. The statement that the appellant filed an application under Art. 133, without specifying the clause under which the application was made, was, to say the least, misleading. The ground in the petition for leave to appeal referred to above would suggest that the application to the High Court for certificate was made not only under Article 133 (1) (c), but also under Article 133 (1) (a) or alternatively under Article 133 (1) (b). In other words, the statement in the special leave petition that the application was made to the High Court for a certificate under Article 133,without specifying the sub-clause under which it was made, coupled with the statement in the grounds in the special leave petition that the appellant was entitled, as a matter of right, to a certificate under Article 133 (1) (a) or (b) was calculated to mislead the Court, or, at any rate, was likely to mislead the Court, in the absence of any statement that the appellant applied to the High Court only under Article 133 (1) (c) and the High Court refused to grant the certificate only under that sub-clause. It is very doubtful whether this Court would have granted special leave to appeal, if this Court had been told that the application for grant of certificate to the High Court was made under Article 133 (1) (c).When this Court rejected the application for special leave to appeal against the order dismissing the writ petition, it is very problematical whether it would have granted special leave to appeal against the order refusing to grant a certificate under Article 133 (1) (c), if the Court had been appraised of the fact that the application for certificate to the High Court was made only under that sub-clause.7. This Court has been very strict in its requirement that, in a petition under Article 136, the applicant should state all material facts which have a bearing on the question of the exercise of the discretion, correctly. And, if any statement is made in the petition which has a bearing on its maintainability, and which is calculated or likely to mislead, the court would revoke the order granting special leave (see the decision in Rajabhai Abdul Rehman v. Vasudev Dhanjibhai (1964) 3 SCR 480 = (AIR 1964 SC 345 ).8. In dealing with an application for special leave, this Court takes the statement of fact and grounds of fact contained in the application at their face value and it would be unfair to betray the confidence of this Court by making statements which are untrue or misleading (see the decision in Hari Narain v. Badri Das, (1964) 2 SCR 203 = (AIR 1963 SC 1558 )).
### Response:
1
### Explanation:
6. The statement that the appellant filed an application under Art. 133, without specifying the clause under which the application was made, was, to say the least, misleading. The ground in the petition for leave to appeal referred to above would suggest that the application to the High Court for certificate was made not only under Article 133 (1) (c), but also under Article 133 (1) (a) or alternatively under Article 133 (1) (b). In other words, the statement in the special leave petition that the application was made to the High Court for a certificate under Article 133,without specifying theunder which it was made, coupled with the statement in the grounds in the special leave petition that the appellant was entitled, as a matter of right, to a certificate under Article 133 (1) (a) or (b) was calculated to mislead the Court, or, at any rate, was likely to mislead the Court, in the absence of any statement that the appellant applied to the High Court only under Article 133 (1) (c) and the High Court refused to grant the certificate only under thatThis Court has been very strict in its requirement that, in a petition under Article 136, the applicant should state all material facts which have a bearing on the question of the exercise of the discretion, correctly. And, if any statement is made in the petition which has a bearing on its maintainability, and which is calculated or likely to mislead, the court would revoke the order granting special leave (see the decision in Rajabhai Abdul Rehman v. Vasudev Dhanjibhai (1964) 3 SCR 480 = (AIR 1964 SC 345 ).8. In dealing with an application for special leave, this Court takes the statement of fact and grounds of fact contained in the application at their face value and it would be unfair to betray the confidence of this Court by making statements which are untrue or misleading (see the decision in Hari Narain v. Badri Das, (1964) 2 SCR 203 = (AIR 1963 SC 1558 )).
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National Insurance Co. Ltd Vs. Puja Roller Flour Mills (P) Ltd. & Others | 1. Heard learned counsel for the parties. 2. The Motor Accidents Claims Tribunal (for short the Tribunal) by its award dated 15-9-1994 fixed the compensation at Rs 6,72,000 and directed that as according to the terms of the insurance policy the liability of the Insurance Company was limited to the extent of Rs 1,50,000, the claimants shall be entitled to recover a sum of Rs 1,50,000 only from the Insurance Company and the balance amount of Rs 5,22,000 from the owner of the vehicle. Against the said order, the owner of the vehicle filed an appeal before the High Court of Punjab and Haryana giving rise to First Appeal No. 303 of 1995, in which the High Court upheld the quantum of compensation but directed that liability of the Insurance Company could not have been limited to Rs 1,50,000 but the same was an unlimited one. Thereafter, the Insurance Company filed a letters patent appeal before the High Court which has been dismissed. Hence, this appeal by special leave.3. Learned counsel appearing on behalf of the appellant submitted that according to the terms of the insurance policy the liability of the Insurance Company was to the extent of Rs 1,50,000 in accordance with the Motor Vehicles Act, 1939 (hereinafter referred to as the old Act) but now, under the Motor Vehicles Act, 1988 (hereinafter referred to as the new Act) the liability of the Insurance Company is unlimited. It has been submitted that in cases where the insurance policy issued under the old Act was subsisting on the date of passing of the new Act, a special provision has been made under the proviso to S.147(2) of the new Act which lays down that if any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, the same shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. The new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000 only. | 1[ds]The new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000 | 1 | 466 | 206 | ### 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:
1. Heard learned counsel for the parties. 2. The Motor Accidents Claims Tribunal (for short the Tribunal) by its award dated 15-9-1994 fixed the compensation at Rs 6,72,000 and directed that as according to the terms of the insurance policy the liability of the Insurance Company was limited to the extent of Rs 1,50,000, the claimants shall be entitled to recover a sum of Rs 1,50,000 only from the Insurance Company and the balance amount of Rs 5,22,000 from the owner of the vehicle. Against the said order, the owner of the vehicle filed an appeal before the High Court of Punjab and Haryana giving rise to First Appeal No. 303 of 1995, in which the High Court upheld the quantum of compensation but directed that liability of the Insurance Company could not have been limited to Rs 1,50,000 but the same was an unlimited one. Thereafter, the Insurance Company filed a letters patent appeal before the High Court which has been dismissed. Hence, this appeal by special leave.3. Learned counsel appearing on behalf of the appellant submitted that according to the terms of the insurance policy the liability of the Insurance Company was to the extent of Rs 1,50,000 in accordance with the Motor Vehicles Act, 1939 (hereinafter referred to as the old Act) but now, under the Motor Vehicles Act, 1988 (hereinafter referred to as the new Act) the liability of the Insurance Company is unlimited. It has been submitted that in cases where the insurance policy issued under the old Act was subsisting on the date of passing of the new Act, a special provision has been made under the proviso to S.147(2) of the new Act which lays down that if any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, the same shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. The new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000 only.
### Response:
1
### Explanation:
The new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000new Act came into force on 1-7-1989 and the accident had taken place on 29-9-1989 on which date the policy was effective. As the accident has taken place within the period of four months and the policy was to expire thereafter, the date of accident being earlier one in point of time, according to the proviso, the policy issued under the old Act shall continue to be effective in the case in hand. Thus, in view of the proviso the liability of the appellant Insurance Company would be limited to a sum of Rs 1,50,000
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STATE OF MADHYA PRADESH Vs. R.D. SHARMA AND ANR | Time Scale: - (i) Additional Principal Chief Conservator of Forest – Pay-Band – 4: Rs.37400-67000; plus Grade Pay Rs.12000; (ii) HAG +: Rs.75500- (annual increment @ 3%)- 80000; Grade Pay: Nil; (iii) Apex Scale: Rs.80000 (fixed), Grade Pay: nil (by upgradation of one existing post of Principal Chief Conservator of Forest as head of Forest Force in the each State Cadre); (With effect from the date of issue of notification of the Indian Forests Service (Pay) Amendment Rules, 2008); Note 1: …………………. Note 2: The post of Principal Chief Conservator of Forest in the apex scale shall be filled by selection form amongst the officers holding the post of Principal Chief Conservator of Forest in the State cadre in the HAG + Scale of Rs. 75500-(annual increment @ 3%)- 80000. From the above quoted rules, it is abundantly clear that one existing post of PCCF was to be upgraded as the Head of Forest Force in each State cadre, fixing the apex scale at Rs. 80,000/- w.e.f. the date of the issue of Notification of the said Amended Rules i.e. 27th September, 2008, and that the said post of PCCF in the apex scale was to be filled up by selection from amongst the officers holding the post of PCCF in the State cadre in the HAG + scale of Rs.75,500/- (annual increment @ 3%) – 80,000/-. 13. Since the respondent no. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules, 2008, his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80,000/- was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September, 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees, and cannot be automatic on the basis of seniority. The contention raised by Mr. Gupta for the respondent no. 1 that even prior to the amendment in the rules in the year 2008, the officers working on the post of PCCF were the Head of the Forest Force and the respondent no. 1 was also working as such, cannot be accepted, for the simple reason that if all the officers working on the post of PCCF were also working as the Head of the Forest Force, there was no need to upgrade one existing post of PCCF in the apex scale of Rs. 80,000/- and designate it as the Head of the Forest Force, w.e.f. 27th September, 2008, as specifically provided in Sub-Rule 1 of Rule 3 of the Amended Rules of 2008. Rule 11 of the said Amended Rules of 2008 also specifically reiterates the said position about upgradation and designation of the post of PCCF as the Head of Forest Force in the State of Madhya Pradesh, as in other States and Union Territories. 14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of equal pay for equal work placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the courts interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 equal pay for equal work is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government. 15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of equal pay for equal work in the O.A. filed by him. The said wellconsidered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of equal pay for equal work, while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted. | 1[ds]From the above quoted rules, it is abundantly clear that one existing post of PCCF was to be upgraded as the Head of Forest Force in each State cadre, fixing the apex scale at Rs. 80,000/- w.e.f. the date of the issue of Notification of the said Amended Rules i.e. 27th September, 2008, and that the said post of PCCF in the apex scale was to be filled up by selection from amongst the officers holding the post of PCCF in the State cadre in the HAG + scale of Rs.75,500/- (annual increment @ 3%) – 80,000/-.13. Since the respondent no. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules, 2008, his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80,000/- was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September, 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees, and cannot be automatic on the basis of seniority. The contention raised by Mr. Gupta for the respondent no. 1 that even prior to the amendment in the rules in the year 2008, the officers working on the post of PCCF were the Head of the Forest Force and the respondent no. 1 was also working as such, cannot be accepted, for the simple reason that if all the officers working on the post of PCCF were also working as the Head of the Forest Force, there was no need to upgrade one existing post of PCCF in the apex scale of Rs. 80,000/- and designate it as the Head of the Forest Force, w.e.f. 27th September, 2008, as specifically provided in Sub-Rule 1 of Rule 3 of the Amended Rules of 2008. Rule 11 of the said Amended Rules of 2008 also specifically reiterates the said position about upgradation and designation of the post of PCCF as the Head of Forest Force in the State of Madhya Pradesh, as in other States and Union Territories.14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of equal pay for equal work placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the courts interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 equal pay for equal work is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government.15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of equal pay for equal work in the O.A. filed by him. The said wellconsidered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of equal pay for equal work, while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted. | 1 | 3,516 | 941 | ### 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:
Time Scale: - (i) Additional Principal Chief Conservator of Forest – Pay-Band – 4: Rs.37400-67000; plus Grade Pay Rs.12000; (ii) HAG +: Rs.75500- (annual increment @ 3%)- 80000; Grade Pay: Nil; (iii) Apex Scale: Rs.80000 (fixed), Grade Pay: nil (by upgradation of one existing post of Principal Chief Conservator of Forest as head of Forest Force in the each State Cadre); (With effect from the date of issue of notification of the Indian Forests Service (Pay) Amendment Rules, 2008); Note 1: …………………. Note 2: The post of Principal Chief Conservator of Forest in the apex scale shall be filled by selection form amongst the officers holding the post of Principal Chief Conservator of Forest in the State cadre in the HAG + Scale of Rs. 75500-(annual increment @ 3%)- 80000. From the above quoted rules, it is abundantly clear that one existing post of PCCF was to be upgraded as the Head of Forest Force in each State cadre, fixing the apex scale at Rs. 80,000/- w.e.f. the date of the issue of Notification of the said Amended Rules i.e. 27th September, 2008, and that the said post of PCCF in the apex scale was to be filled up by selection from amongst the officers holding the post of PCCF in the State cadre in the HAG + scale of Rs.75,500/- (annual increment @ 3%) – 80,000/-. 13. Since the respondent no. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules, 2008, his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80,000/- was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September, 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees, and cannot be automatic on the basis of seniority. The contention raised by Mr. Gupta for the respondent no. 1 that even prior to the amendment in the rules in the year 2008, the officers working on the post of PCCF were the Head of the Forest Force and the respondent no. 1 was also working as such, cannot be accepted, for the simple reason that if all the officers working on the post of PCCF were also working as the Head of the Forest Force, there was no need to upgrade one existing post of PCCF in the apex scale of Rs. 80,000/- and designate it as the Head of the Forest Force, w.e.f. 27th September, 2008, as specifically provided in Sub-Rule 1 of Rule 3 of the Amended Rules of 2008. Rule 11 of the said Amended Rules of 2008 also specifically reiterates the said position about upgradation and designation of the post of PCCF as the Head of Forest Force in the State of Madhya Pradesh, as in other States and Union Territories. 14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of equal pay for equal work placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the courts interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 equal pay for equal work is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government. 15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of equal pay for equal work in the O.A. filed by him. The said wellconsidered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of equal pay for equal work, while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted.
### Response:
1
### Explanation:
From the above quoted rules, it is abundantly clear that one existing post of PCCF was to be upgraded as the Head of Forest Force in each State cadre, fixing the apex scale at Rs. 80,000/- w.e.f. the date of the issue of Notification of the said Amended Rules i.e. 27th September, 2008, and that the said post of PCCF in the apex scale was to be filled up by selection from amongst the officers holding the post of PCCF in the State cadre in the HAG + scale of Rs.75,500/- (annual increment @ 3%) – 80,000/-.13. Since the respondent no. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules, 2008, his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80,000/- was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September, 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees, and cannot be automatic on the basis of seniority. The contention raised by Mr. Gupta for the respondent no. 1 that even prior to the amendment in the rules in the year 2008, the officers working on the post of PCCF were the Head of the Forest Force and the respondent no. 1 was also working as such, cannot be accepted, for the simple reason that if all the officers working on the post of PCCF were also working as the Head of the Forest Force, there was no need to upgrade one existing post of PCCF in the apex scale of Rs. 80,000/- and designate it as the Head of the Forest Force, w.e.f. 27th September, 2008, as specifically provided in Sub-Rule 1 of Rule 3 of the Amended Rules of 2008. Rule 11 of the said Amended Rules of 2008 also specifically reiterates the said position about upgradation and designation of the post of PCCF as the Head of Forest Force in the State of Madhya Pradesh, as in other States and Union Territories.14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of equal pay for equal work placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the courts interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 equal pay for equal work is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government.15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of equal pay for equal work in the O.A. filed by him. The said wellconsidered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of equal pay for equal work, while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted.
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Food Corporation of India & Another Vs. M/s. SEIL Ltd. & Others | by the respondents many many years back, save and except under the terms of binding contract. 14. We have noticed hereinbefore that the High Court had divided the cases in two categories. In regard to the supplies made by the respondents to the Central Government and/or its agencies wherewith appellants had no concern, it could not have denied payment on the pretext of shortage or quality of the sugar supplied, particularly, when the recipient did not raise such a question. 15. The Central Government, issued a letter dated 17th November, 1972 on which reliance has been placed by the appellant itself before the High Court; clause (vii) whereof reads as under: On receipt of dispatch instructions, the District Manager at dispatching and will arrange full payment including excise duty to the mills for road movement. As regards, movement by rail full payment may be made in two installments; first being @ Rs.15/- per quintal. After making initial payment inspection of the stocks should be arranged and mills should be asked and perused to place indents for wagons immediately. Balance amount will be paid to the Mills as soon as wagons are placed. To save time lag, cheques/demand drafts should be kept ready and handed over the mills as soon as wagons are made available, as the mills may hesitate loading wagons unless full payment is made particularly when the consignees will be FCI and ownership of the Cargo will be changed as soon as stocks are loaded. Excise duty will also be paid along with the final payment for stocks RRs will be freight to pay and in favour of FCI as consignee. Payment shall be made through cheques and in case of any objection from the mill regarding acceptance of the cheques, payments may be made either by demand draft or cheques certified as good for payment. Funds shall be arranged by the District Managers directly from the Head Office as is being done in the case of food grain purchase. Posting of additional staff at the mill point is under consideration and after decision is taken follow up action should be taken by the Regional Managers. The staff at the mill would be responsible to undertake inspection of quality, check weighment, indent of wagons and look to other general arrangements about transport and dispatch. These transport charges will be incorporated by the mills in the bills and will be paid by FCI. Wagons will be booked against clear RRs in the name of receiving District Managers and would be sent to the letter promptly. Stocks by rail shall move against clear RRs and it shall therefore be the responsibility of the receiving District Managers to account for the weight of sugar properly. In case of any shortage/damages of sugar in transit, the claims for the same should be lodged promptly with the railways, in accordance with the standing instructions on the subject. 16. Jurisdiction of the High Court to entertain a writ application involving contractual matter was considered by a Bench of this Court in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. [(2004) 3 SCC553] wherein upon referring to a large number of decisions, it was held: 23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the above said requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent. 17. Reliance placed by Mr. Sharan on M/s. Burmah Construction Company v. The State of Orissa & Ors. [AIR 1962 SC 1320 ] is not apposite. Claim made therein was a pure money claim. It was in that situation observed that the High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract to pay an amount of money due to the claimant. 18. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents. 19. We, however, although agree with the opinion of the Division Bench of the High Court on the legal principle in regard to payment of interest, as has been enunciated by it, having regard to the fact that the respondents did not prefer any appeal, are of the opinion that increase in the rate of interest, as has been directed by the Division Bench, cannot be upheld. | 0[ds]18. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents19. We, however, although agree with the opinion of the Division Bench of the High Court on the legal principle in regard to payment of interest, as has been enunciated by it, having regard to the fact that the respondents did not prefer any appeal, are of the opinion that increase in the rate of interest, as has been directed by the Division Bench, cannot be upheld. | 0 | 2,433 | 310 | ### 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:
by the respondents many many years back, save and except under the terms of binding contract. 14. We have noticed hereinbefore that the High Court had divided the cases in two categories. In regard to the supplies made by the respondents to the Central Government and/or its agencies wherewith appellants had no concern, it could not have denied payment on the pretext of shortage or quality of the sugar supplied, particularly, when the recipient did not raise such a question. 15. The Central Government, issued a letter dated 17th November, 1972 on which reliance has been placed by the appellant itself before the High Court; clause (vii) whereof reads as under: On receipt of dispatch instructions, the District Manager at dispatching and will arrange full payment including excise duty to the mills for road movement. As regards, movement by rail full payment may be made in two installments; first being @ Rs.15/- per quintal. After making initial payment inspection of the stocks should be arranged and mills should be asked and perused to place indents for wagons immediately. Balance amount will be paid to the Mills as soon as wagons are placed. To save time lag, cheques/demand drafts should be kept ready and handed over the mills as soon as wagons are made available, as the mills may hesitate loading wagons unless full payment is made particularly when the consignees will be FCI and ownership of the Cargo will be changed as soon as stocks are loaded. Excise duty will also be paid along with the final payment for stocks RRs will be freight to pay and in favour of FCI as consignee. Payment shall be made through cheques and in case of any objection from the mill regarding acceptance of the cheques, payments may be made either by demand draft or cheques certified as good for payment. Funds shall be arranged by the District Managers directly from the Head Office as is being done in the case of food grain purchase. Posting of additional staff at the mill point is under consideration and after decision is taken follow up action should be taken by the Regional Managers. The staff at the mill would be responsible to undertake inspection of quality, check weighment, indent of wagons and look to other general arrangements about transport and dispatch. These transport charges will be incorporated by the mills in the bills and will be paid by FCI. Wagons will be booked against clear RRs in the name of receiving District Managers and would be sent to the letter promptly. Stocks by rail shall move against clear RRs and it shall therefore be the responsibility of the receiving District Managers to account for the weight of sugar properly. In case of any shortage/damages of sugar in transit, the claims for the same should be lodged promptly with the railways, in accordance with the standing instructions on the subject. 16. Jurisdiction of the High Court to entertain a writ application involving contractual matter was considered by a Bench of this Court in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. [(2004) 3 SCC553] wherein upon referring to a large number of decisions, it was held: 23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the above said requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent. 17. Reliance placed by Mr. Sharan on M/s. Burmah Construction Company v. The State of Orissa & Ors. [AIR 1962 SC 1320 ] is not apposite. Claim made therein was a pure money claim. It was in that situation observed that the High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract to pay an amount of money due to the claimant. 18. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents. 19. We, however, although agree with the opinion of the Division Bench of the High Court on the legal principle in regard to payment of interest, as has been enunciated by it, having regard to the fact that the respondents did not prefer any appeal, are of the opinion that increase in the rate of interest, as has been directed by the Division Bench, cannot be upheld.
### Response:
0
### Explanation:
18. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents19. We, however, although agree with the opinion of the Division Bench of the High Court on the legal principle in regard to payment of interest, as has been enunciated by it, having regard to the fact that the respondents did not prefer any appeal, are of the opinion that increase in the rate of interest, as has been directed by the Division Bench, cannot be upheld.
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NAND KISHORE PRASAD Vs. MOHIB HAMIDI | the surgery was the only option even with low blood platelets, the finding of negligence of the operating surgeon cannot be ignored.14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside. 15. In respect of amount of compensation, the NCDRC held that sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation. The appellant relies upon judgment of this court reported as V. Krishnakumar v. State of Tamil Nadu and Others (2015) 9 SCC 388 to claim enhanced amount of compensation. In the said case of medical negligence at the time of delivery of a baby girl born to middle class family, this Court held as under:- 19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 221 and in Balram Prasad case (2014) 1 SCC 384 , in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170)“170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co (1880) LR 5 AC 25 (HL) )” An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.” 16. In a Judgment of this Court reported as National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 , a Constitution Bench has laid down parameters for the grant of compensation in respect of claims arising out of Motor Vehicular accidents as just compensation has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The Court held as under:- “55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (2009) 6 SCC 121 and it has been approved in Reshma Kumari (2013) 9 SCC 65 . The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardisation which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardisation keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardisation" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.” 17. Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation.18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital.19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case. | 1[ds]12. At the time of admission, the recorded history of the patient is complaint of pain in abdomen, fever and haemorrhage in both eyes for the past five days. However, there is no evidence of critical condition of the patient to be operated upon even with low platelet count. The surgery to remove round worms is not proved to be of immediate necessity to save life of a patient who had critical platelet count. In the absence of any evidence that the surgery was the only life saving option available at that time, the action to operate upon the patient cannot be said to be prudent decision.14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case ofso as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside.Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation.18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital.19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case. | 1 | 2,678 | 355 | ### 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 surgery was the only option even with low blood platelets, the finding of negligence of the operating surgeon cannot be ignored.14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside. 15. In respect of amount of compensation, the NCDRC held that sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation. The appellant relies upon judgment of this court reported as V. Krishnakumar v. State of Tamil Nadu and Others (2015) 9 SCC 388 to claim enhanced amount of compensation. In the said case of medical negligence at the time of delivery of a baby girl born to middle class family, this Court held as under:- 19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 221 and in Balram Prasad case (2014) 1 SCC 384 , in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170)“170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co (1880) LR 5 AC 25 (HL) )” An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.” 16. In a Judgment of this Court reported as National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 , a Constitution Bench has laid down parameters for the grant of compensation in respect of claims arising out of Motor Vehicular accidents as just compensation has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The Court held as under:- “55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (2009) 6 SCC 121 and it has been approved in Reshma Kumari (2013) 9 SCC 65 . The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardisation which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardisation keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardisation" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.” 17. Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation.18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital.19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case.
### Response:
1
### Explanation:
12. At the time of admission, the recorded history of the patient is complaint of pain in abdomen, fever and haemorrhage in both eyes for the past five days. However, there is no evidence of critical condition of the patient to be operated upon even with low platelet count. The surgery to remove round worms is not proved to be of immediate necessity to save life of a patient who had critical platelet count. In the absence of any evidence that the surgery was the only life saving option available at that time, the action to operate upon the patient cannot be said to be prudent decision.14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case ofso as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside.Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation.18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital.19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case.
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PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) & ORS Vs. LALJIBHAI KANJIBHAI MANDALIA | height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation. It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia. Such a situation as a state court expressed it many years ago is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question. The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions. xx xx xx 94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) ….. 30. The power of judicial review and interference by the Courts in the matters of disciplinary proceedings was being examined in the judgement of this Court reported as Indian Oil Corporation Ltd. v. Rajendra D. Harmalkar 2022 SCC Online SC 486. It was held that interference was not permissible unless the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken. 31. In another judgment reported as Utkal Suppliers v. Maa Kanak Durga Enterprises 2021 SCC Online SC 301, this Court was examining tender conditions in a writ petition. It was held that judicial review in these matters is equivalent to judicial restraint. 32. In the light of judgments referred to above, the sufficiency or inadequacy of the reasons to believe recorded cannot be gone into while considering the validity of an act of authorization to conduct search and seizure. The belief recorded alone is justiciable but only while keeping in view the Wednesbury Principle of Reasonableness. Such reasonableness is not a power to act as an appellate authority over the reasons to believe recorded. 33. We would like to restate and elaborate the principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 of the Act as follows: i) The formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character; ii) The information must be in possession of the authorised official on the basis of the material and that the formation of opinion must be honest and bona fide. It cannot be merely pretence. Consideration of any extraneous or irrelevant material would vitiate the belief/satisfaction; iii) The authority must have information in its possession on the basis of which a reasonable belief can be founded that the person concerned has omitted or failed to produce books of accounts or other documents for production of which summons or notice had been issued, or such person will not produce such books of accounts or other documents even if summons or notice is issued to him; or iv) Such person is in possession of any money, bullion, jewellery or other valuable article which represents either wholly or partly income or property which has not been or would not be disclosed; v) Such reasons may have to be placed before the High Court in the event of a challenge to formation of the belief of the competent authority in which event the Court would be entitled to examine the reasons for the formation of the belief, though not the sufficiency or adequacy thereof. In other words, the Court will examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered; vi) Such reasons forming part of the satisfaction note are to satisfy the judicial consciousness of the Court and any part of such satisfaction note is not to be made part of the order; vii) The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue; viii) The relevance of the reasons for the formation of the belief is to be tested by the judicial restraint as in administrative action as the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court shall not examine the sufficiency or adequacy thereof; ix) In terms of the explanation inserted by the Finance Act, 2017 with retrospective effect from 1.4.1962, such reasons to believe as recorded by income tax authorities are not required to be disclosed to any person or any authority or the Appellate Tribunal. | 1[ds]12. We have heard learned counsel for the parties and find that the view of the High Court that the authorization to search the premises of the assessee is invalid, cannot be sustained. The expression reasons to believe is a component of many statutes such as in the case of reassessment of Income under the Act or its predecessor statute, the Essential Commodities Act, 1955; the Foreign Exchange Regulation Act, 1973 as well as in respect of action of the Revenue in the matter of search and seizure.13. In S. Narayanappa v. CIT AIR 1967 SC 523 , a case of re-assessment for the reason that income had escaped assessment, this Court held the Revenue must have reason to believe that the income, profits or gains chargeable to income tax had been underassessed. The Court held as under:2. ….. ….. But the legal position is that if there are in fact some reasonable grounds for the Income Tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of underassessment that would be sufficient to give jurisdiction to the Income Tax Officer to issue the notice under Section 34. Whether these grounds are adequate or not is not a matter for the court to investigate. In other words, the sufficiency of the grounds which induced the Income Tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income Tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression reason to believe in Section 34 of the Income Tax Act does not mean a purely subjective satisfaction on the part of the Income Tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income Tax Officer in starting proceedings under Section 34 of the Act is open to challenge in a court of law. (See Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta [41 ITR 191] 4. ………….. The earlier stage of the proceeding for recording the reasons of the Income Tax Officer and for obtaining the sanction of the Commissioner are administrative in character and are not quasi-judicial. The scheme of Section 34 of the Act is that, if the conditions of the main section are satisfied a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22.14. Seth Brothers is referred to by both Revenue and the assessee relating to the act of search and seizure. It was held that the exercise of power is a serious invasion upon the rights, privacy and freedom of the tax-payer. The power must be exercised strictly in accordance with law and only for the purposes for which law authorizes it to be exercised. The High Court had accepted that the correctness of the opinion actually formed by the Income Tax Officer was not open to scrutiny in a writ petition, but the search and seizure of documents and books of accounts held to be made in excess of the powers conferred upon the Income Tax Officer was mala fide. This Court found no merit in such finding in view of the sworn affidavits by the concerned Income Tax Officers that they did in fact form the requisite opinion under Section 132 of the Act. This Court set aside the findings recorded by the High Court, when it was held as under:8. The section does not confer any arbitrary authority upon the Revenue Officers. The Commissioner or the Director of Inspection must have, in consequence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist. He must record reasons for the belief and he must issue an authorisation in favour of a designated officer to search the premises and exercise the powers set out therein. …………....If the action of the officer issuing the authorization, or of the designated officer is challenged the officer concerned must satisfy the Court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers any error of judgment on the part of the Officers will not vitiate the exercise of the power. Where the Commissioner entertains the requisite belief and for reasons recorded by him authorises a designated officer to enter and search premises for books of account and documents relevant to or useful for any proceeding under the Act, the Court in a petition by an aggrieved person cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Again, any irregularity in the course of entry, search and seizure committed by the officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken, provided the officer has in executing the authorisation acted bona fide.21. These proceedings were brought before the High Court by way of a writ petition under Article 226 of the Constitution before any investigation was made by the Income Tax Officers pursuant to the action taken by them. In appropriate cases a writ petition may lie challenging the validity of the action on the ground of absence of power or on a plea that proceedings were taken maliciously or for a collateral purpose............16. In Partap Singh (Dr) v. Director of Enforcement (1985) 3 SCC 72, this Court was considering the action of search and seizure under the Foreign Exchange Regulation Act,1973. It was held that when an officer of the Enforcement Department proposes to act under Section 37, he must have reason to believe that the documents useful for investigation or proceeding under the Act are secreted. It was further held that the reasons must be sufficient for a prudent man to come to the conclusion that income escaped assessment and that the Court can examine the sufficiency or adequacy of the reasons on which the Income Tax Officer has acted. This Court held as under:-9. When an officer of the Enforcement Department proposes to act under Section 37 undoubtedly, he must have reason to believe that the documents useful for investigation or proceeding under the Act are secreted. The material on which the belief is grounded may be secret, may be obtained through Intelligence or occasionally may be conveyed orally by informants. ………….. ….The Court in terms held that whether these grounds are adequate or not is not a matter for the court to investigate.10. The expression reason to believe is not synonymous with subjective satisfaction of the Officer. The belief must be held in good faith; it cannot merely be a pretence. In the same case, it was held that it is open to the court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent the action of the Income Tax Officer in starting proceedings under Section 34 is open to challenge in a court of law. ……………… The last part of the submission does not commend to us because the file was produced before us and as stated earlier, the Officer issuing the search warrant had material which he rightly claimed to be adequate for forming the reasonable belief to issue the search warrant.14. Assuming that it was obligatory to record reasons in writing prior to directing the search, the file submitted to the court unmistakably shows that there was material enough before the officer to form a reasonable belief which prompted him to direct the search. That the documents seized during the search did not provide sufficient material to the officer for further action cannot be a ground for holding that the grounds which induced the reasonable belief were either imaginary or fictitious or mala fide conjured up.16. In this behalf, the appellant further contended that if the search was genuine or bona fide for carrying out the purposes of the Act, it is surprising that when the matter was before the High Court, the Enforcement Directorate submitted that it does not wish to take any further action in respect of the material seized during the search. There is no warrant for the assertion that every search must result in seizure of incriminating material. Such an approach would be a sad commentary on human ingenuity. There can be cases in which search may fail or a reasonable explanation in respect of the documents may be forthcoming17. This Court in a judgment reported as Phool Chand Bajrang Lal and Anr. v. Income Tax Officer and Anr. (1993) 4 SCC 77 was examining the reasons to be recorded for the purpose of re-assessment of the Income Tax already assessed. It was only on the basis of specific, reliable and relevant information coming to the knowledge of Income Tax Officer subsequently, he has reasons which must be recorded, to believe that due to omission or failure on the part of the assessee to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profit or gains chargeable to income tax has escaped assessment. This Court held as under:-25. ……. Since, the belief is that of the Income Tax Officer, the sufficiency of reasons for forming the belief, is not for the Court to judge but it is open to an assessee to establish that there in fact existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non-specific information. To that limited extent, the Court may look into the conclusion arrived at by the Income Tax Officer and examine whether there was any material available on the record from which the requisite belief could be formed by the Income Tax Officer and further whether that material had any rational connection or a live link for the formation of the requisite belief. It would be immaterial whether the Income Tax Officer at the time of making the original assessment could or, could not have found by further enquiry or investigation, whether the transaction was genuine or not, if on the basis of subsequent information, the Income Tax Officer arrives at a conclusion, after satisfying the twin conditions prescribed in Section 147(a) of the Act, that the assessee had not made a full and true disclosure of the material facts at the time of original assessment and therefore income chargeable to tax had escaped assessment.........19. In a judgment reported as Union of India v. Agarwal Iron Industries (2014) 15 SCC 215 it was noticed that it is difficult to appreciate how the denial in the counter-affidavit filed by the Revenue could be treated as an admission by implication to come to a conclusion that no reason was ascribed for search and seizure and, therefore, action taken under Section 132 of the Act was illegal. The relevant confidential file, if required and necessary, could have been called for and examined. The Revenue in the counter-affidavit was not required to elucidate and reproduce the information and details that formed the foundation of search. It was further held that the issuance of search and seizure on the basis of formation of opinion which a reasonable and prudent man would form for arriving at a conclusion to issue a warrant was done by way of an interim measure. The search and seizure is not to be treated as confiscation. This Court held as under:-10. The provision contained in Section 132(1) of the Act enables the competent authority to direct for issuance of search and seizure on the basis of formation of an opinion which a reasonable and prudent man would form for arriving at a conclusion to issue a warrant. It is done by way of an interim measure. The search and seizure is not confiscation. The articles that are seized are the subject of enquiry by the competent authority after affording an opportunity of being heard to the person whose custody it has been seized. The terms used are reason to believe. Whether the competent authority had formed the opinion on the basis of any acceptable material or not, as is clear as crystal, the High Court has not even remotely tried to see the reasons. Reasons, needless to say, can be recorded on the file and the Court can scrutinise the file and find out whether the authority has appropriately recorded the reasons for forming of an opinion that there are reasons to believe to conduct search and seizure. As is evincible, the High Court has totally misdirected itself in quashing the search and seizure on the basis of the principles of non-traverse.20. This Court in another judgment in Spacewood Furnishers (P) Ltd. set aside the order of the High Court, wherein it had interdicted with the action of search and seizure under Article 226 of the Constitution. It was held as under:12. In the present case the satisfaction note(s) leading to the issuing of the warrant of authorisation against the respondent assessee were placed before the High Court. As it would appear from the impugned order [Spacewood Furnishers (P) Ltd. v. DG of Income Tax, 2011 SCC OnLine Bom 1610 : (2012) 340 ITR 393 ] the contents thereof were exhaustively reproduced by the High Court. The said satisfaction note(s) have also been placed before us. A perusal of the file containing the satisfaction note(s) indicate that on 8-6-2009 the Assistant Director of Income Tax (Investigation), Nagpur had prepared an elaborate note containing several reasons as to why he had considered it reasonable to believe that if summons or notice were issued to the respondent to produce the necessary books of account and documents, the same would not be produced. The Assistant Director also recorded detailed reasons why he entertains reasons to believe that the promoters of the respondent assessee company would be found to be in possession of money, bullion, jewellery, etc. which represents partly or wholly income which has not been disclosed for the purposes of the Act.21. In the light of the views expressed by this Court in ITO v. Seth Bros. [ITO v. Seth Bros., (1969) 2 SCC 324 : (1969) 74 ITR 836 ] and Pooran Mal [Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345 : 1974 SCC (Tax) 114 : (1974) 93 ITR 505 ] , the above opinion expressed by the High Court is plainly incorrect. The necessity of recording of reasons, despite the amendment of Rule 112(2) with effect from 1-10-1975, has been repeatedly stressed upon by this Court so as to ensure accountability and responsibility in the decision-making process. The necessity of recording of reasons also acts as a cushion in the event of a legal challenge being made to the satisfaction reached. Reasons enable a proper judicial assessment of the decision taken by the Revenue. However, the above, by itself, would not confer in the assessee a right of inspection of the documents or to a communication of the reasons for the belief at the stage of issuing of the authorisation. Any such view would be counterproductive of the entire exercise contemplated by Section 132 of the Act. It is only at the stage of commencement of the assessment proceedings after completion of the search and seizure, if any, that the requisite material may have to be disclosed to the assessee.22. At this stage we would like to say that the High Court had committed a serious error in reproducing in great detail the contents of the satisfaction note(s) containing the reasons for the satisfaction arrived at by the authorities under the Act. We have already indicated the time and stage at which the reasons recorded may be required to be brought to the notice of the assessee. In the light of the above, we cannot approve of the aforesaid part of the exercise undertaken by the High Court which we will understand to be highly premature; having the potential of conferring an undue advantage to the assessee thereby frustrating the endeavour of the Revenue, even if the High Court is eventually not to intervene in favour of the assessee.22. The judgment of Delhi High Court in Ajit Jain is on the facts of that case but the law stated is not in dispute. The High Court found the act of search as invalid on the facts of that case. In that case, a survey under Section 133-A of the Act was conducted to ascertain whether the cash of Rs. 8.6 lakhs was reflected in the accounts of the company. The action of respondent No. 4 in issuing the authorisation under Section 132(1) of the Act and seizure of Rs. 8.5 lakhs was challenged on the ground that there was no information on record on the basis whereof respondent No. 4 could form the belief that the said amount recovered from the petitioner represented wholly or partly income which had not been or would not have been disclosed for the purpose of the Act, a condition precedent for exercise of power under Section 132(1) of the Act. The High Court held thus:-Thus, for authorising action under Section 132, the conditions precedent are: (i) the information in the possession of the named authority; and (ii) in consequence of which he may have reason to believe that the person concerned is in possession of money, bullion etc. which represents, either wholly or partly, income which has not been or would not be disclosed for the purpose of the Act. If either of these conditions are missing or have not been adhered to, then power under Section 132 cannot be invoked. Thus, the basis of exercise of power under Section 132(1) has to be formation of belief and the belief has to be formed on the basis of receipt of information by the authorising officer that the person is in possession of money etc. which represents undisclosed income.Information, in consequence of which the Director General or the Chief Commissioner etc., as the case may be, has from to his belief is not only to be authentic but capable of giving rise to the inference that a person is in possession of money etc. which has not been or would not be disclosed for the purpose of the Act. In other words, it must necessarily be linked with the ingredients mentioned in the Section.By now it is well settled that while the sufficiency or otherwise of the information cannot be examined by the court in writ jurisdiction, the existence of information and its relevance to the formation of the belief is open to judicial scrutiny because it is the foundation of the condition precedent for exercise of a serious power of search of a private property or person, to prevent violation of privacy of a citizen……………. But the Court could examine whether the reasons for the belief have a rational connection or relevant bearing to the formation of the belief and search warrant could not be issued merely with a view to making a roving or fishing enquiry.The expression reason to believe has been explained in various decisions by the Apex Court and High Courts while dealing with Sections 132 and 148 of the Act. It has been held that the word reason to believe means that a reasonable man, under the circumstances, would form a belief which will impel him to take action under the law. The formation of opinion has to be in good faith and not on mere pretence. For the purpose of Section 132 of the Act, there has to be a rational connection between the information or material and the belief about undisclosed income, which has not been and is not likely to be disclosed by the person concerned.23. The judgments of the High Courts relied upon by Mr. Datar are primarily on the facts of the respective case but in view of the judgment of this Court, we do not feel the necessity to discuss such judgments herein.24. The detailed satisfaction note shows multiple entries in the account books of Sarju Sharma and others. The manner of Sarju Sharma who was either in Siliguri (West Bengal) or in Goa contacting the assessee in Ahmedabad for a loan of Rs.10 crores does not appear to be a normal transaction. Subsequent repayment of mortgage and the interest income reflected in the relevant assessment year appears to be the steps taken by the assessee to give a colour of genuineness but the stand of the Revenue that such entry was an accommodation entry is required to be found out and also the cobweb of entries required to be unravelled including the trail of the money paid by the assessee.25. The High Court quoted extensively from the counter-affidavit filed by the Revenue as well as quoted para 4.3 of the affidavit-in reply but still returned a finding that the Court could not find any other material whatsoever insofar as the assessee is concerned for the purpose of recording satisfaction under Section 132 of the Act. We find that reasons to believe are not the final conclusions which the revenue would arrive at while framing block assessment in terms of Chapter XIV-B of the Act. The test to consider the justiciability of belief is whether such reasons are totally irrelevant or whimsical. The reply in the counter affidavit shows that the intention of the Revenue was to un-layer the layering of money which is suspected to be done by the assessee.26. In Partap Singh, the action of search and seizure was found to be valid. Though the stand of the Enforcement Directorate was that in view of the material seized during the search, it does not wish to take any further action, it was found that there was no warrant for the assertion that every search must result in seizure of incriminating material. There can be cases in which search may fail or reasonable explanation of the documents may be forthcoming. At this stage of search and seizure, the Court has to examine whether the reason to believe are in good faith; it cannot merely be pretence. The belief recorded must have a rational connection or a relevant bearing to the formation of the belief and should not be extraneous or irrelevant to the purpose of the section. In view of the detailed reasons recorded in the satisfaction note including the investment made by the assessee for brief period and that investment is alleged to be an accommodation entry, it cannot be said to be such which does not satisfy the pre- requisite conditions of Section 132(1) of the Act.27. As per the Revenue, Clauses (b) & (c) of Section 132 (1) were satisfied before the warrant of authorization was approved. The satisfaction note was recorded in terms of an assessee whose jurisdictional assessing officer was in the State of the West Bengal. It is the cobweb of accounts of such assessee which are required to be unravelled. It is not unreasonable for the Revenue to apprehend that the assessee would not respond to the summons before the Assessing Officer in the State of West Bengal. It was also alleged that such summons would lead to disclosure of information collected by the Revenue against Sarju Sharma and his group. Therefore, it was a reasonable belief drawn by the Revenue that the assessee shall not produce or cause to be produced any books of accounts or other documents which would be useful or relevant to the proceedings under the Act. Such believe was not based upon conjectures but on a bona-fide opinion framed in the ordinary conduct of the affairs by the assessee generally. The notice to the assessee to appear before the Income Tax authorities in the State of West Bengal would have been sufficient notice of the material against the Company and its group, to defeat the entire attempt to unearth the cobweb of the accounts by the Company and its associates.28. Even clause (c) of Section 132(1) is satisfied. The assessee was in possession of Rs.10 crores which was advanced as loan to the Company. The Revenue wishes to find out as to whether such amount is an undisclosed income which would include the sources from which such amount of Rs.10 crores was advanced as loan to a totally stranger person, unconnected with either the affairs of assessee or any other link, to justify as to how a person in Ahmedabad has advanced Rs.10 crores to the Company situated at Kolkata in West Bengal for the purpose of investment in Goa. The Revenue may fail or succeed but that would not be a reason to interfere with the search and seizure operations at the threshold, denying an opportunity to the Revenue to unravel the mystery surrounding the investment made by the assessee.29. In a celebrated judgment of this Court in Tata Cellular v. Union of India (1994) 6 SCC 651, on the scope of judicial review, though in the context of tenders, is very well applicable to the powers or limitations of the Courts while exercising the jurisdiction under Article 226 of the Constitution. One of the principles is that of judicial restraint. This Court held that:73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the courts ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.78. What is this charming principle of Wednesbury unreasonableness? Is it a magical formula? In R. v. Askew [(1768) 4 Burr 2186 : 98 ER 139] , Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later:It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practise this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, warped by resentment, or personal dislike.80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.)82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say:If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. It makes judicial review of administrative orders a hopeless formality for the litigant. … It reduces the judicial process in such cases to a mere feint.Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neelys words:I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia. Such a situation as a state court expressed it many years ago is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question.The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions.94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.30. The power of judicial review and interference by the Courts in the matters of disciplinary proceedings was being examined in the judgement of this Court reported as Indian Oil Corporation Ltd. v. Rajendra D. Harmalkar 2022 SCC Online SC 486. It was held that interference was not permissible unless the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.31. In another judgment reported as Utkal Suppliers v. Maa Kanak Durga Enterprises 2021 SCC Online SC 301, this Court was examining tender conditions in a writ petition. It was held that judicial review in these matters is equivalent to judicial restraint.32. In the light of judgments referred to above, the sufficiency or inadequacy of the reasons to believe recorded cannot be gone into while considering the validity of an act of authorization to conduct search and seizure. The belief recorded alone is justiciable but only while keeping in view the Wednesbury Principle of Reasonableness. Such reasonableness is not a power to act as an appellate authority over the reasons to believe recorded.33. We would like to restate and elaborate the principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 of the Act as follows:i) The formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character;ii) The information must be in possession of the authorised official on the basis of the material and that the formation of opinion must be honest and bona fide. It cannot be merely pretence. Consideration of any extraneous or irrelevant material would vitiate the belief/satisfaction;iii) The authority must have information in its possession on the basis of which a reasonable belief can be founded that the person concerned has omitted or failed to produce books of accounts or other documents for production of which summons or notice had been issued, or such person will not produce such books of accounts or other documents even if summons or notice is issued to him; oriv) Such person is in possession of any money, bullion, jewellery or other valuable article which represents either wholly or partly income or property which has not been or would not be disclosed;v) Such reasons may have to be placed before the High Court in the event of a challenge to formation of the belief of the competent authority in which event the Court would be entitled to examine the reasons for the formation of the belief, though not the sufficiency or adequacy thereof. In other words, the Court will examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered;vi) Such reasons forming part of the satisfaction note are to satisfy the judicial consciousness of the Court and any part of such satisfaction note is not to be made part of the order;vii) The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue;viii) The relevance of the reasons for the formation of the belief is to be tested by the judicial restraint as in administrative action as the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court shall not examine the sufficiency or adequacy thereof;ix) In terms of the explanation inserted by the Finance Act, 2017 with retrospective effect from 1.4.1962, such reasons to believe as recorded by income tax authorities are not required to be disclosed to any person or any authority or the Appellate Tribunal. | 1 | 11,229 | 6,404 | ### 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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height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation. It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia. Such a situation as a state court expressed it many years ago is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question. The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions. xx xx xx 94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) ….. 30. The power of judicial review and interference by the Courts in the matters of disciplinary proceedings was being examined in the judgement of this Court reported as Indian Oil Corporation Ltd. v. Rajendra D. Harmalkar 2022 SCC Online SC 486. It was held that interference was not permissible unless the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken. 31. In another judgment reported as Utkal Suppliers v. Maa Kanak Durga Enterprises 2021 SCC Online SC 301, this Court was examining tender conditions in a writ petition. It was held that judicial review in these matters is equivalent to judicial restraint. 32. In the light of judgments referred to above, the sufficiency or inadequacy of the reasons to believe recorded cannot be gone into while considering the validity of an act of authorization to conduct search and seizure. The belief recorded alone is justiciable but only while keeping in view the Wednesbury Principle of Reasonableness. Such reasonableness is not a power to act as an appellate authority over the reasons to believe recorded. 33. We would like to restate and elaborate the principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 of the Act as follows: i) The formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character; ii) The information must be in possession of the authorised official on the basis of the material and that the formation of opinion must be honest and bona fide. It cannot be merely pretence. Consideration of any extraneous or irrelevant material would vitiate the belief/satisfaction; iii) The authority must have information in its possession on the basis of which a reasonable belief can be founded that the person concerned has omitted or failed to produce books of accounts or other documents for production of which summons or notice had been issued, or such person will not produce such books of accounts or other documents even if summons or notice is issued to him; or iv) Such person is in possession of any money, bullion, jewellery or other valuable article which represents either wholly or partly income or property which has not been or would not be disclosed; v) Such reasons may have to be placed before the High Court in the event of a challenge to formation of the belief of the competent authority in which event the Court would be entitled to examine the reasons for the formation of the belief, though not the sufficiency or adequacy thereof. In other words, the Court will examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered; vi) Such reasons forming part of the satisfaction note are to satisfy the judicial consciousness of the Court and any part of such satisfaction note is not to be made part of the order; vii) The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue; viii) The relevance of the reasons for the formation of the belief is to be tested by the judicial restraint as in administrative action as the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court shall not examine the sufficiency or adequacy thereof; ix) In terms of the explanation inserted by the Finance Act, 2017 with retrospective effect from 1.4.1962, such reasons to believe as recorded by income tax authorities are not required to be disclosed to any person or any authority or the Appellate Tribunal.
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1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia. Such a situation as a state court expressed it many years ago is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question.The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions.94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.30. The power of judicial review and interference by the Courts in the matters of disciplinary proceedings was being examined in the judgement of this Court reported as Indian Oil Corporation Ltd. v. Rajendra D. Harmalkar 2022 SCC Online SC 486. It was held that interference was not permissible unless the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.31. In another judgment reported as Utkal Suppliers v. Maa Kanak Durga Enterprises 2021 SCC Online SC 301, this Court was examining tender conditions in a writ petition. It was held that judicial review in these matters is equivalent to judicial restraint.32. In the light of judgments referred to above, the sufficiency or inadequacy of the reasons to believe recorded cannot be gone into while considering the validity of an act of authorization to conduct search and seizure. The belief recorded alone is justiciable but only while keeping in view the Wednesbury Principle of Reasonableness. Such reasonableness is not a power to act as an appellate authority over the reasons to believe recorded.33. We would like to restate and elaborate the principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 of the Act as follows:i) The formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character;ii) The information must be in possession of the authorised official on the basis of the material and that the formation of opinion must be honest and bona fide. It cannot be merely pretence. Consideration of any extraneous or irrelevant material would vitiate the belief/satisfaction;iii) The authority must have information in its possession on the basis of which a reasonable belief can be founded that the person concerned has omitted or failed to produce books of accounts or other documents for production of which summons or notice had been issued, or such person will not produce such books of accounts or other documents even if summons or notice is issued to him; oriv) Such person is in possession of any money, bullion, jewellery or other valuable article which represents either wholly or partly income or property which has not been or would not be disclosed;v) Such reasons may have to be placed before the High Court in the event of a challenge to formation of the belief of the competent authority in which event the Court would be entitled to examine the reasons for the formation of the belief, though not the sufficiency or adequacy thereof. In other words, the Court will examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered;vi) Such reasons forming part of the satisfaction note are to satisfy the judicial consciousness of the Court and any part of such satisfaction note is not to be made part of the order;vii) The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue;viii) The relevance of the reasons for the formation of the belief is to be tested by the judicial restraint as in administrative action as the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court shall not examine the sufficiency or adequacy thereof;ix) In terms of the explanation inserted by the Finance Act, 2017 with retrospective effect from 1.4.1962, such reasons to believe as recorded by income tax authorities are not required to be disclosed to any person or any authority or the Appellate Tribunal.
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Ghaziabad Development Authority Vs. Sanchar Vihar Sahkari Avas Samiti Ltd | it reads as under : "balance amount payable in six half yearly instalments with 15% interest". 10. Mr. O. P. Rana, learned Senior counsel appearing in support of Civil Appeal filed by the authority contended that the entire brochure has to be read together because this was an advertisement to the public at large and in terms of the brochure applications from the eligible persons were invited for allotting houses/plots under the said scheme. When the applicants/members of the complainant applied to the authority under the present scheme their applications were processed, scrutinized as per the brochure and were given the instalment facility as regard the payment of balance amount in six half yearly instalments in terms of column 9, table 1 annexed to the said brochure. Column 9 provides that if the facility of payment of balance amount in six half yearly instalments is being availed of, then applicants are required to pay interest @ 15% per annum on the balance amount of instalments. He urged that the members of the complainant did avail the facility of payment of balance amount in six half yearly instalments as per column 9 in table 1 and accordingly paid the interest at 15% per annum. Mr O. P. Rana, therefore, urged that it is not open to the complainant now to say that the amount of Rs. 26,70,246.00 paid to the authority was not payable and the same be refunded.11. Mr. Narender Kaushik, learned counsel appearing for the complaintant, however, strongly relied upon the wording of clause 3.50 of the brochure and urged that the National Commission has committed no error in issuing direction to the authority to refund the amount of Rs. 25,37,669/- to the complainant. 12. In our opinion the National Commission was not justified in dissecting clause 3.50 and column 9 of table 1 of the brochure. The brochure published by the authority has to be read together. It is true that clause 3.50 is silent about the liability of the applicant to pay the interest @ 15% on the balance amount but that clause in our opinion has to be read with table 1, column 9. This we say so because table 1 sets out the details relating to scheme, name and code, the property category, number of plots, approximate cost of the plots, payment plan/pay plan, registration amount, reservation amount, balance amount payment schedule etc. Since the complainant and its members have availed the facility of payment of balance amount in the Self Financing Scheme in six half yearly instalments and accordingly paid the interest with 15% per annum it would be too late in the day to say that in the Self Financing Scheme they were not liable to pay interest on the balance amount as claimed by the authority. If the members of the complainant were not agreeable to the payment of interest on the balance amount @ 15% as prescribed in column 9 of table 1 then they ought to have objected to the liability to pay the interest provided therein and should have raised the dispute at the appropriate time. Having acquiesced in the mode of payment in instalments as per coloum 9 of table 1 in our opinion it would not be permissible for the complaintant to raise a dispute as regard the payment of interest thereon. It is thus in our opinion that the finding of the Tribunal, "We have carefully perused the brochure and find that clause 3.50 makes no distinction between the houses and plots. In any case this rule clearly states that no interest is payable on instalments under the Self Financing Scheme. Column 9 in the table in Annexure-1 cannot override the rule as mentioned in clause 3.50. We are, therefore, of the view that the interest cannot be charged from those who have applied for the plots under Self Financing Scheme", is an erroneous interpretation of the brochure and in particular clause 3.50 and column 9 of table 1. The entire brochure is required to be read as a whole as it related to various schemes of housing to the eligible persons. Table 1 which is part of brochure has to be read in consonance with clause 3.50. It would not be correct to read clause 3.50 in isolation to column 9 of table 1 and to come to the conclusion that since no provisions as regards the interest is made in clause 3.50, the authority is not entitled to charge interest on the balance amount being paid in instalments. We are, therefore, of the opinion that clause 3.50 is required to be read in conjunction with column 9 of table 1 of the brochure. With respect we are unable to agree with the finding of the National Commission on this issue and accordingly the same is unsustainable.13. Coming to the appeal filed by the complainant (Civil Appeal No. 7439 of 1995) we are of the opinion that the National Commission has made no mistake in refusing interest or damages for delayed possession of the plots to the members of the complainant. During the course of arguments it was brought to our notice that the lands in question were the subject matter of land acquisition proceedings and because of the interim orders obtained by the land owners/claimants the authority was unable to finalise the acquisition proceedings and obtained possession thereof. During the course of hearing, learned counsel for the claimants produced in Court a zerox copy of the letter dated 19-2-1996 addressed to the individual plot holders. It is signed by the Joint Secretary, Ghaziabad Vikas Pardhikaran, Ghaziabad. Taken on record. We have perused the said letter and Mr. Rana, learned Senior counsel, appearing for the authority assured the Court that every necessary steps will be taken by the authority to hand over the possession of the plots to the applicants who have been allotted the plots under the present scheme. We hope the Authority will do the needful in terms of the letter dated 19-2-1996. | 1[ds]12. In our opinion the National Commission was not justified in dissecting clause 3.50 and column 9 of table 1 of the brochure. The brochure published by the authority has to be read together. It is true that clause 3.50 is silent about the liability of the applicant to pay the interest @ 15% on the balance amount but that clause in our opinion has to be read with table 1, column 9. This we say so because table 1 sets out the details relating to scheme, name and code, the property category, number of plots, approximate cost of the plots, payment plan/pay plan, registration amount, reservation amount, balance amount payment schedule etc. Since the complainant and its members have availed the facility of payment of balance amount in the Self Financing Scheme in six half yearly instalments and accordingly paid the interest with 15% per annum it would be too late in the day to say that in the Self Financing Scheme they were not liable to pay interest on the balance amount as claimed by the authority. If the members of the complainant were not agreeable to the payment of interest on the balance amount @ 15% as prescribed in column 9 of table 1 then they ought to have objected to the liability to pay the interest provided therein and should have raised the dispute at the appropriate time. Having acquiesced in the mode of payment in instalments as per coloum 9 of table 1 in our opinion it would not be permissible for the complaintant to raise a dispute as regard the payment of interest thereon. It is thus in our opinion that the finding of the Tribunal, "We have carefully perused the brochure and find that clause 3.50 makes no distinction between the houses and plots. In any case this rule clearly states that no interest is payable on instalments under the Self Financing Scheme. Column 9 in the table incannot override the rule as mentioned in clause 3.50. We are, therefore, of the view that the interest cannot be charged from those who have applied for the plots under Self Financing Scheme", is an erroneous interpretation of the brochure and in particular clause 3.50 and column 9 of table 1. The entire brochure is required to be read as a whole as it related to various schemes of housing to the eligible persons. Table 1 which is part of brochure has to be read in consonance with clause 3.50. It would not be correct to read clause 3.50 in isolation to column 9 of table 1 and to come to the conclusion that since no provisions as regards the interest is made in clause 3.50, the authority is not entitled to charge interest on the balance amount being paid in instalments. We are, therefore, of the opinion that clause 3.50 is required to be read in conjunction with column 9 of table 1 of the brochure. With respect we are unable to agree with the finding of the National Commission on this issue and accordingly the same is unsustainable.13. Coming to the appeal filed by the complainant (Civil Appeal No. 7439 of 1995) we are of the opinion that the National Commission has made no mistake in refusing interest or damages for delayed possession of the plots to the members of the complainant. During the course of arguments it was brought to our notice that the lands in question were the subject matter of land acquisition proceedings and because of the interim orders obtained by the land owners/claimants the authority was unable to finalise the acquisition proceedings and obtained possession thereof. During the course of hearing, learned counsel for the claimants produced in Court a zerox copy of the letter datedaddressed to the individual plot holders. It is signed by the Joint Secretary, Ghaziabad Vikas Pardhikaran, Ghaziabad. Taken on record. We have perused the said letter and Mr. Rana, learned Senior counsel, appearing for the authority assured the Court that every necessary steps will be taken by the authority to hand over the possession of the plots to the applicants who have been allotted the plots under the present scheme. We hope the Authority will do the needful in terms of the letter dated | 1 | 2,012 | 767 | ### 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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it reads as under : "balance amount payable in six half yearly instalments with 15% interest". 10. Mr. O. P. Rana, learned Senior counsel appearing in support of Civil Appeal filed by the authority contended that the entire brochure has to be read together because this was an advertisement to the public at large and in terms of the brochure applications from the eligible persons were invited for allotting houses/plots under the said scheme. When the applicants/members of the complainant applied to the authority under the present scheme their applications were processed, scrutinized as per the brochure and were given the instalment facility as regard the payment of balance amount in six half yearly instalments in terms of column 9, table 1 annexed to the said brochure. Column 9 provides that if the facility of payment of balance amount in six half yearly instalments is being availed of, then applicants are required to pay interest @ 15% per annum on the balance amount of instalments. He urged that the members of the complainant did avail the facility of payment of balance amount in six half yearly instalments as per column 9 in table 1 and accordingly paid the interest at 15% per annum. Mr O. P. Rana, therefore, urged that it is not open to the complainant now to say that the amount of Rs. 26,70,246.00 paid to the authority was not payable and the same be refunded.11. Mr. Narender Kaushik, learned counsel appearing for the complaintant, however, strongly relied upon the wording of clause 3.50 of the brochure and urged that the National Commission has committed no error in issuing direction to the authority to refund the amount of Rs. 25,37,669/- to the complainant. 12. In our opinion the National Commission was not justified in dissecting clause 3.50 and column 9 of table 1 of the brochure. The brochure published by the authority has to be read together. It is true that clause 3.50 is silent about the liability of the applicant to pay the interest @ 15% on the balance amount but that clause in our opinion has to be read with table 1, column 9. This we say so because table 1 sets out the details relating to scheme, name and code, the property category, number of plots, approximate cost of the plots, payment plan/pay plan, registration amount, reservation amount, balance amount payment schedule etc. Since the complainant and its members have availed the facility of payment of balance amount in the Self Financing Scheme in six half yearly instalments and accordingly paid the interest with 15% per annum it would be too late in the day to say that in the Self Financing Scheme they were not liable to pay interest on the balance amount as claimed by the authority. If the members of the complainant were not agreeable to the payment of interest on the balance amount @ 15% as prescribed in column 9 of table 1 then they ought to have objected to the liability to pay the interest provided therein and should have raised the dispute at the appropriate time. Having acquiesced in the mode of payment in instalments as per coloum 9 of table 1 in our opinion it would not be permissible for the complaintant to raise a dispute as regard the payment of interest thereon. It is thus in our opinion that the finding of the Tribunal, "We have carefully perused the brochure and find that clause 3.50 makes no distinction between the houses and plots. In any case this rule clearly states that no interest is payable on instalments under the Self Financing Scheme. Column 9 in the table in Annexure-1 cannot override the rule as mentioned in clause 3.50. We are, therefore, of the view that the interest cannot be charged from those who have applied for the plots under Self Financing Scheme", is an erroneous interpretation of the brochure and in particular clause 3.50 and column 9 of table 1. The entire brochure is required to be read as a whole as it related to various schemes of housing to the eligible persons. Table 1 which is part of brochure has to be read in consonance with clause 3.50. It would not be correct to read clause 3.50 in isolation to column 9 of table 1 and to come to the conclusion that since no provisions as regards the interest is made in clause 3.50, the authority is not entitled to charge interest on the balance amount being paid in instalments. We are, therefore, of the opinion that clause 3.50 is required to be read in conjunction with column 9 of table 1 of the brochure. With respect we are unable to agree with the finding of the National Commission on this issue and accordingly the same is unsustainable.13. Coming to the appeal filed by the complainant (Civil Appeal No. 7439 of 1995) we are of the opinion that the National Commission has made no mistake in refusing interest or damages for delayed possession of the plots to the members of the complainant. During the course of arguments it was brought to our notice that the lands in question were the subject matter of land acquisition proceedings and because of the interim orders obtained by the land owners/claimants the authority was unable to finalise the acquisition proceedings and obtained possession thereof. During the course of hearing, learned counsel for the claimants produced in Court a zerox copy of the letter dated 19-2-1996 addressed to the individual plot holders. It is signed by the Joint Secretary, Ghaziabad Vikas Pardhikaran, Ghaziabad. Taken on record. We have perused the said letter and Mr. Rana, learned Senior counsel, appearing for the authority assured the Court that every necessary steps will be taken by the authority to hand over the possession of the plots to the applicants who have been allotted the plots under the present scheme. We hope the Authority will do the needful in terms of the letter dated 19-2-1996.
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12. In our opinion the National Commission was not justified in dissecting clause 3.50 and column 9 of table 1 of the brochure. The brochure published by the authority has to be read together. It is true that clause 3.50 is silent about the liability of the applicant to pay the interest @ 15% on the balance amount but that clause in our opinion has to be read with table 1, column 9. This we say so because table 1 sets out the details relating to scheme, name and code, the property category, number of plots, approximate cost of the plots, payment plan/pay plan, registration amount, reservation amount, balance amount payment schedule etc. Since the complainant and its members have availed the facility of payment of balance amount in the Self Financing Scheme in six half yearly instalments and accordingly paid the interest with 15% per annum it would be too late in the day to say that in the Self Financing Scheme they were not liable to pay interest on the balance amount as claimed by the authority. If the members of the complainant were not agreeable to the payment of interest on the balance amount @ 15% as prescribed in column 9 of table 1 then they ought to have objected to the liability to pay the interest provided therein and should have raised the dispute at the appropriate time. Having acquiesced in the mode of payment in instalments as per coloum 9 of table 1 in our opinion it would not be permissible for the complaintant to raise a dispute as regard the payment of interest thereon. It is thus in our opinion that the finding of the Tribunal, "We have carefully perused the brochure and find that clause 3.50 makes no distinction between the houses and plots. In any case this rule clearly states that no interest is payable on instalments under the Self Financing Scheme. Column 9 in the table incannot override the rule as mentioned in clause 3.50. We are, therefore, of the view that the interest cannot be charged from those who have applied for the plots under Self Financing Scheme", is an erroneous interpretation of the brochure and in particular clause 3.50 and column 9 of table 1. The entire brochure is required to be read as a whole as it related to various schemes of housing to the eligible persons. Table 1 which is part of brochure has to be read in consonance with clause 3.50. It would not be correct to read clause 3.50 in isolation to column 9 of table 1 and to come to the conclusion that since no provisions as regards the interest is made in clause 3.50, the authority is not entitled to charge interest on the balance amount being paid in instalments. We are, therefore, of the opinion that clause 3.50 is required to be read in conjunction with column 9 of table 1 of the brochure. With respect we are unable to agree with the finding of the National Commission on this issue and accordingly the same is unsustainable.13. Coming to the appeal filed by the complainant (Civil Appeal No. 7439 of 1995) we are of the opinion that the National Commission has made no mistake in refusing interest or damages for delayed possession of the plots to the members of the complainant. During the course of arguments it was brought to our notice that the lands in question were the subject matter of land acquisition proceedings and because of the interim orders obtained by the land owners/claimants the authority was unable to finalise the acquisition proceedings and obtained possession thereof. During the course of hearing, learned counsel for the claimants produced in Court a zerox copy of the letter datedaddressed to the individual plot holders. It is signed by the Joint Secretary, Ghaziabad Vikas Pardhikaran, Ghaziabad. Taken on record. We have perused the said letter and Mr. Rana, learned Senior counsel, appearing for the authority assured the Court that every necessary steps will be taken by the authority to hand over the possession of the plots to the applicants who have been allotted the plots under the present scheme. We hope the Authority will do the needful in terms of the letter dated
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Fibre Boards Ltd., Bangalore Vs. Commissioner of Income Tax, Bangalore | omission and re-enactment. The Court has stated as follows: “As noticed earlier, the omission of Section 2(27) and re-enactment of Section 80-JJ was done simultaneously. It is a very well-recognized rule of interpretation of statutes that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re-enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re-enacted provision. Viewed in this background, the effect of the re-enacted provision of Section 80-JJ was that profit from the business of livestock and poultry which enjoyed total exemption under Section 10(27) of the Act from Assessment Years 1964-65 to 1975-76 became partially exempt by way of deduction on fulfilment of certain conditions.” (At para 12) 35. For all the aforesaid reasons, we are therefore of the view that on omission of Section 280ZA and its re-enactment with modification in Section 54G, Section 24 of the General Clauses Act would apply, and the notification of 1967, declaring Thane to be an urban area, would be continued under and for the purposes of Section 54A.36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer has taken place to “purchase” new machinery or plant or “acquire” building or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) is “which is not utilized by him for all or any of the purposes aforesaid….”. It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is to “utilize” the amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been so “utilized” for purchase and/or acquisition of new machinery or plant and land or building. 37. The High Court is not correct when it states:- “31. The word ‘purchase’ is not defined under the Act and therefore, has to be construed in the commercial sense. In many dictionaries, the word ‘purchase’ means the acquisition of property by party’s own act as distinguished from acquisition by act of law. In the context in which the expression issued by the Legislature requires first to be understood and interpretation that suits the context requires to be adopted. Exemption of capital gains under Section 54G of the Act can be claimed on transfer of assets in cases of shifting of industrial undertaking from urban area to any other non-urban area. This exemption may be claimed if the capital gains arising on transfer of any of assets of existing industrial unit is utilized within one year or three years after the date on which the transfer took place for purchase of new machinery or plant for the purposes of the business of the industrial undertaking in the area to which the said undertaking is shifted. The Legislature consciously has not used the expression ‘towards the purchase of plant and machinery’ as in Section 54(4) of the Act in contrast to Section 54(2) of the Act wherein the words ‘towards’ is used before the word ‘purchase’. The expression ‘purchased’ used in sub-clause (a) of section 54G of the Act requires to be understood as the domain and control given to the assessee. In the present case, it is not in dispute that the assessee has paid advance amount for acquisition of land, plant, building and machinery, etc., within the time stipulated in the Section, but it is not the case of the assessee that after such payment of advance amount, it has taken possession of land and building, plant and machinery. In our view, if the argument of the learned Senior Counsel for the assessee is accepted, it would defeat the very purpose and object of the Section itself. By merely paying some amount by way of advance towards the cost of acquisition of land for shifting its industrial unit from urban area to non-urban area, an assessee cannot claim exemption from payment of tax on capital gains. This cannot be the intention of the Legislature and an interpretation, which would defeat the very purpose, and the object of the Act requires to be avoided.” (at para 31 of the impugned judgment) 38. We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under sub-section (1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key words “not utilized” in sub-section (2) which would show that it is enough that the capital gain made by the assessee should only be “utilized” by him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid assets. We find therefore that on this ground also, the assessee is liable to succeed. | 1[ds]It is true that Section 280Y(d) was only omitted by the Finance Act, 1990 and was not omitted together with Section 280ZA. However, we agree with learned counsel for the appellant that this would make no material difference inasmuch as Section 280Y(d) is a definition Section definingor the purpose of Section 280ZA only and for no other purpose. It is clear that once Section 280ZA is omitted from the statute book, Section 280Y(d) having no independent existence would for all practical purposes also beQuite apart from this, Section 54G(1) by its explanation introduces the very definition contained in Section 280Y(d) in the same terms. Obviously, both provisions are not expected to be applied simultaneously and it is clear that the explanation to Section 54G(1) repeals by implication Section 280Y(d).From a reading of the notes on clauses and the Memorandum of the Finance Bill, 1990, it is clear that Section 280Y(d) which was omitted with effect from 1.4.1990 was so omitted because it had becomeIt was redundant because it had no independent existence, apart from providing a definition ofor the purpose of Section 280ZA which had been omitted with effect from the very date that Section 54G was inserted, namely, 1.4.1988. We are, therefore, of the view that the High Court in not referring to Section 24 of the General Clauses Act has fallen into error.On a reading of Section 24 together with what has been stated by this Court above, it becomes difficult to accept Shri Arijitcontention that Section 24 would only apply to notifications which themselves gave rights to persons like the appellant. Unlike Section 6 of the General Clauses Act, which saves certain rights, Section 24 merely continues notifications, orders, schemes, rules etc. that are made under a Central Act which is repealed andwith or without modification. The idea of Section 24 of the General Clauses Act is, as its marginal note shows, to continue uninterrupted subordinate legislation that may be made under a Central Act that is repealed andwith or without modification. It being clear in the present case that Section 280ZA which was repealed by omission andwith modification in section 54G, the notification declaring Thane to be an urban area dated 22.9.1967 would continue under and for the purposes of Section 54G. It is clear, therefore, that the impugned judgment in not referring to section 24 of the General Clauses Act at all has thus fallen into error.Shri Prasad is correct in relying upon these two Constitution Bench judgments for they do indeed say that in Section 6 of the General Clauses Act, the wordA reading of this Section would show that a repeal can be by way of an express omission. This being the case, obviously the wordin both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6A, therefore, again undoes the binding effect of these two judgments on an application of the ‘perprinciple. (In Mamleshwar Prasad & Anr. v. Kanahaiya Lal (dead) through LRs., (1975) 3 SCR 834 , Krishna Iyer, J., succinctly laid down what is meant by the5. For all the aforesaid reasons, we are therefore of the view that on omission of Section 280ZA and itswith modification in Section 54G, Section 24 of the General Clauses Act would apply, and the notification of 1967, declaring Thane to be an urban area, would be continued under and for the purposes of Section 54A.36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer has taken place tonew machinery or plant orbuilding or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) isis not utilized by him for all or any of the purposes aforesaid….It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is tothe amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been sofor purchase and/or acquisition of new machinery or plant and land or building.We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under(1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key wordsn (2) which would show that it is enough that the capital gain made by the assessee should only beby him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid assets. We find therefore that on this ground also, the assessee is liable to succeed. | 1 | 10,620 | 1,048 | ### 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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omission and re-enactment. The Court has stated as follows: “As noticed earlier, the omission of Section 2(27) and re-enactment of Section 80-JJ was done simultaneously. It is a very well-recognized rule of interpretation of statutes that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re-enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re-enacted provision. Viewed in this background, the effect of the re-enacted provision of Section 80-JJ was that profit from the business of livestock and poultry which enjoyed total exemption under Section 10(27) of the Act from Assessment Years 1964-65 to 1975-76 became partially exempt by way of deduction on fulfilment of certain conditions.” (At para 12) 35. For all the aforesaid reasons, we are therefore of the view that on omission of Section 280ZA and its re-enactment with modification in Section 54G, Section 24 of the General Clauses Act would apply, and the notification of 1967, declaring Thane to be an urban area, would be continued under and for the purposes of Section 54A.36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer has taken place to “purchase” new machinery or plant or “acquire” building or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) is “which is not utilized by him for all or any of the purposes aforesaid….”. It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is to “utilize” the amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been so “utilized” for purchase and/or acquisition of new machinery or plant and land or building. 37. The High Court is not correct when it states:- “31. The word ‘purchase’ is not defined under the Act and therefore, has to be construed in the commercial sense. In many dictionaries, the word ‘purchase’ means the acquisition of property by party’s own act as distinguished from acquisition by act of law. In the context in which the expression issued by the Legislature requires first to be understood and interpretation that suits the context requires to be adopted. Exemption of capital gains under Section 54G of the Act can be claimed on transfer of assets in cases of shifting of industrial undertaking from urban area to any other non-urban area. This exemption may be claimed if the capital gains arising on transfer of any of assets of existing industrial unit is utilized within one year or three years after the date on which the transfer took place for purchase of new machinery or plant for the purposes of the business of the industrial undertaking in the area to which the said undertaking is shifted. The Legislature consciously has not used the expression ‘towards the purchase of plant and machinery’ as in Section 54(4) of the Act in contrast to Section 54(2) of the Act wherein the words ‘towards’ is used before the word ‘purchase’. The expression ‘purchased’ used in sub-clause (a) of section 54G of the Act requires to be understood as the domain and control given to the assessee. In the present case, it is not in dispute that the assessee has paid advance amount for acquisition of land, plant, building and machinery, etc., within the time stipulated in the Section, but it is not the case of the assessee that after such payment of advance amount, it has taken possession of land and building, plant and machinery. In our view, if the argument of the learned Senior Counsel for the assessee is accepted, it would defeat the very purpose and object of the Section itself. By merely paying some amount by way of advance towards the cost of acquisition of land for shifting its industrial unit from urban area to non-urban area, an assessee cannot claim exemption from payment of tax on capital gains. This cannot be the intention of the Legislature and an interpretation, which would defeat the very purpose, and the object of the Act requires to be avoided.” (at para 31 of the impugned judgment) 38. We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under sub-section (1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key words “not utilized” in sub-section (2) which would show that it is enough that the capital gain made by the assessee should only be “utilized” by him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid assets. We find therefore that on this ground also, the assessee is liable to succeed.
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### Explanation:
It is true that Section 280Y(d) was only omitted by the Finance Act, 1990 and was not omitted together with Section 280ZA. However, we agree with learned counsel for the appellant that this would make no material difference inasmuch as Section 280Y(d) is a definition Section definingor the purpose of Section 280ZA only and for no other purpose. It is clear that once Section 280ZA is omitted from the statute book, Section 280Y(d) having no independent existence would for all practical purposes also beQuite apart from this, Section 54G(1) by its explanation introduces the very definition contained in Section 280Y(d) in the same terms. Obviously, both provisions are not expected to be applied simultaneously and it is clear that the explanation to Section 54G(1) repeals by implication Section 280Y(d).From a reading of the notes on clauses and the Memorandum of the Finance Bill, 1990, it is clear that Section 280Y(d) which was omitted with effect from 1.4.1990 was so omitted because it had becomeIt was redundant because it had no independent existence, apart from providing a definition ofor the purpose of Section 280ZA which had been omitted with effect from the very date that Section 54G was inserted, namely, 1.4.1988. We are, therefore, of the view that the High Court in not referring to Section 24 of the General Clauses Act has fallen into error.On a reading of Section 24 together with what has been stated by this Court above, it becomes difficult to accept Shri Arijitcontention that Section 24 would only apply to notifications which themselves gave rights to persons like the appellant. Unlike Section 6 of the General Clauses Act, which saves certain rights, Section 24 merely continues notifications, orders, schemes, rules etc. that are made under a Central Act which is repealed andwith or without modification. The idea of Section 24 of the General Clauses Act is, as its marginal note shows, to continue uninterrupted subordinate legislation that may be made under a Central Act that is repealed andwith or without modification. It being clear in the present case that Section 280ZA which was repealed by omission andwith modification in section 54G, the notification declaring Thane to be an urban area dated 22.9.1967 would continue under and for the purposes of Section 54G. It is clear, therefore, that the impugned judgment in not referring to section 24 of the General Clauses Act at all has thus fallen into error.Shri Prasad is correct in relying upon these two Constitution Bench judgments for they do indeed say that in Section 6 of the General Clauses Act, the wordA reading of this Section would show that a repeal can be by way of an express omission. This being the case, obviously the wordin both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6A, therefore, again undoes the binding effect of these two judgments on an application of the ‘perprinciple. (In Mamleshwar Prasad & Anr. v. Kanahaiya Lal (dead) through LRs., (1975) 3 SCR 834 , Krishna Iyer, J., succinctly laid down what is meant by the5. For all the aforesaid reasons, we are therefore of the view that on omission of Section 280ZA and itswith modification in Section 54G, Section 24 of the General Clauses Act would apply, and the notification of 1967, declaring Thane to be an urban area, would be continued under and for the purposes of Section 54A.36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer has taken place tonew machinery or plant orbuilding or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) isis not utilized by him for all or any of the purposes aforesaid….It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is tothe amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been sofor purchase and/or acquisition of new machinery or plant and land or building.We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under(1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key wordsn (2) which would show that it is enough that the capital gain made by the assessee should only beby him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid assets. We find therefore that on this ground also, the assessee is liable to succeed.
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Ram Chandra Palai And Others Vs. The State Of Orissa And Others | permit holders in that behalf. These permits may or may not be renewed in favour of these permit holders but the non-renewal of such permits would not be on a par with the premature termination or cancellation of the permits held by the owners of stage carriage services to whom the provisions of Orissa Act XXXVI of 1947 were applied. The two positions, therefore, are not similar and the permit holders under Orissa Act I of 1949 do not fall in the same class or group as the permit holders under Orissa Act XXXVI of 1947. There is no question, therefore, of any discrimination between these two classes or groups of permit holders and it cannot be validly urged that the provisions of the impugned Acts in so far as they applied to different classes or groups of permit holders are in any manner violative of the fundamental right embodied in Art. 14 of the Constitution.16. The argument that the provisions of the impugned Acts were designed with a view of oust the private stage carriage services from business altogether and were intended to create a virtual monopoly in favour of the Joint-Stock Company or the State as the case may be is also now of no avail. Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (A) was particularly relied upon by the petitioners in support of their contentions but Art. 19(6) of the Constitution as amended by the Constitution (First Amendment) Act, 1951, enacts that "Nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State for making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, "(i) .................(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."17. This amendment excludes all argument in regard to the alleged outsting of the private owned stage carriage services and the creation of a virtual monopoly in favour of the Joint-Stock Company or the State. The Orissa Road Transport Co. Ltd., which is a Joint-Stock Company formed under the provisions of Orissa Act XXXVI of 1947 and the State Transport Services which are envisaged in Orissa Act I of 1949 would, therefore, be able to carry on their business even if it resulted in the complete elimination of the private-owned stage carriage services without any violation of the fundamental right guaranteed under Art. 19(1)(g) of the Constitution.18. It was attempted to be argued on behalf of the petitioners that the amendment of Art. 19 (6) of the Constitution would not affect the position as it obtained under the impugned Acts because these Acts had been long in operation before the amendment came into force and the petitioners were entitled to relief based on our decision in Saghir Ahmads case (A), supra. A similar argument was sought to be advanced before us in Bhikaji Narain Dhakras v. State of Madhya Pradesh, (S) AIR 1955 SC 781 (B) - and that argument was repelled by us in the manner following :"The contention of the respondents before us is that although the amending Act, on the authority of our decision is Saghir Ahmads case (A) (supra), became on and from 26-1-1950 void as against the citizens to the extent of its inconsistency with the provisions of Art 19(1)(g), nevertheless, after 18-6-1951 when clause (6) was amended by the Constitution (First Amendment) Act, 1951 the amending Act ceased to be inconsistent with fundamental right guaranteed by Art. 19(1)(g) read with the amended clause (6) of that Article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter alia, of motor transport business and it became operative again even as against the citizens.... In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, 1951 are well-founded and the objections urged against them by the petitioners are untenable and must be negatived."19. It is hardly necessary for us to consider the further contention urged by the petitioners, viz., that the fundamental right guaranteed under Art. 19(1)(f) and under Art. 31 (2) had been violated. If the permits held by them under the Motor Vehicles Act, 1939 were prematurely terminated or cancelled under the provisions of Orissa Act XXXV of 1947 compensation was provided by the Act itself. If there was no renewal of their permits on the expiration thereof after they had run for their normal period by virtue of the provisions of Orissa Act I of 1949, no claim could be made by them on the score of such non-renewal because renewal was not a matter of right. The Provincial Transport Authority or the Regional Transport Authority would be well within their rights to refuse such renewal having regard to the provisions of the amended Ss. 47 and 55 of the Motor Vehicles Act, 1939, and, if at all there was any deprivation of their proprietary right, it would be by authority of law.20. Nor need we pause to consider the last contention urged on behalf of the petitioners that the impugned Acts violated the guarantee of freedom of inter-State and intra-State trade or business embodied in Article 301 of the Constitution. In the first instance, it is not a fundamental right conferred by Part III of the Constitution which can be enforced by a petition under Art. 32. Moreover, Art. 305 as it stood before the amendment and the amended Article 305 which came into effect after the Constitution (Fourth Amendment) Act, 1955, afford a complete answer to this contention of the petitioners.20. | 0[ds]The provisions of both the Acts being materially different as set out above the application of one Act to particular districts of the State and of the other Act to the other districts of the State was violative of the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution. The owners of stage carriage services to whom Orissa Act XXXVI of 1947 applied had the additional advantage of having compensation granted to them in accordance with the terms of section 6 thereof which advantage was not available to those owners of stage carriage services to whom Orissa Act I of 1949 wasnucleus of transport services which had been owned by the State Government had to be utilized so far as it was available and having regard to the situation as it obtained,the State Government naturally though of applying Orissa Act I of 1949 to certain districts of the State leaving the other districts to be served by the mode envisaged in Orissa Act XXXVI of 1947. Such a zonal or territorial or geographical division of the several districts of the State for implementation of the scheme of Nationalized State Transport by either the formation of a Joint-Stock Company or the running of the State Transport Service was based on the availability of the transport services acquired by the State Government from the various merging States and if such a division was made having regard to the situation as it thus obtained, no challenge could be made against it on the ground of discrimination or the denial of equal protection ofargument, however, ignores the fact that under Orissa Act XXXVI of 1947, the permits issued or renewed in favour of the owners of stage carriage services by the Provincial Transport Authority or the Regional Transport Authority cease to be operative or are canceled by the Provincial Government as the case may be and compensation is given to such permit holders for such premature termination or cancellation of theirowners of stage carriage services to whom Orissa Act I of 1949 is applied stand, however, on a different footing. Their permits continue for the normal period and the considerations which are laid down in clauses (f) and (g) which have been thereby added to Ss. 47 and 55 ofthe Motor Vehicles Act, 1939, would come into play when these permits which have expired by lapse of time come to be considered for renewal on applications made by permit holders in thatpermits may or may not be renewed in favour of these permit holders but the non-renewal of such permits would not be on a par with the premature termination or cancellation of the permits held by the owners of stage carriage services to whom the provisions of Orissa Act XXXVI of 1947 were applied. The two positions, therefore, are not similar and the permit holders under Orissa Act I of 1949 do not fall in the same class or group as the permit holders under Orissa Act XXXVI ofis no question, therefore, of any discrimination between these two classes or groups of permit holders and it cannot be validly urged that the provisions of the impugned Acts in so far as they applied to different classes or groups of permit holders are in any manner violative of the fundamental right embodied in Art. 14 of theOrissa Road Transport Co. Ltd., which is a Joint-Stock Company formed under the provisions of Orissa Act XXXVI of 1947 and the State Transport Services which are envisaged in Orissa Act I of 1949 would, therefore, be able to carry on their business even if it resulted in the complete elimination of the private-owned stage carriage services without any violation of the fundamental right guaranteed under Art. 19(1)(g) of thethe permits held by them underthe Motor Vehicles Act, 1939 were prematurely terminated or cancelled under the provisions of Orissa Act XXXV of 1947 compensation was provided by the Act itself. If there was no renewal of their permits on the expiration thereof after they had run for their normal period by virtue of the provisions of Orissa Act I of 1949, no claim could be made by them on the score of such non-renewal because renewal was not a matter of right. | 0 | 4,911 | 752 | ### 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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permit holders in that behalf. These permits may or may not be renewed in favour of these permit holders but the non-renewal of such permits would not be on a par with the premature termination or cancellation of the permits held by the owners of stage carriage services to whom the provisions of Orissa Act XXXVI of 1947 were applied. The two positions, therefore, are not similar and the permit holders under Orissa Act I of 1949 do not fall in the same class or group as the permit holders under Orissa Act XXXVI of 1947. There is no question, therefore, of any discrimination between these two classes or groups of permit holders and it cannot be validly urged that the provisions of the impugned Acts in so far as they applied to different classes or groups of permit holders are in any manner violative of the fundamental right embodied in Art. 14 of the Constitution.16. The argument that the provisions of the impugned Acts were designed with a view of oust the private stage carriage services from business altogether and were intended to create a virtual monopoly in favour of the Joint-Stock Company or the State as the case may be is also now of no avail. Saghir Ahmad v. State of U.P., AIR 1954 SC 728 (A) was particularly relied upon by the petitioners in support of their contentions but Art. 19(6) of the Constitution as amended by the Constitution (First Amendment) Act, 1951, enacts that "Nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State for making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, "(i) .................(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."17. This amendment excludes all argument in regard to the alleged outsting of the private owned stage carriage services and the creation of a virtual monopoly in favour of the Joint-Stock Company or the State. The Orissa Road Transport Co. Ltd., which is a Joint-Stock Company formed under the provisions of Orissa Act XXXVI of 1947 and the State Transport Services which are envisaged in Orissa Act I of 1949 would, therefore, be able to carry on their business even if it resulted in the complete elimination of the private-owned stage carriage services without any violation of the fundamental right guaranteed under Art. 19(1)(g) of the Constitution.18. It was attempted to be argued on behalf of the petitioners that the amendment of Art. 19 (6) of the Constitution would not affect the position as it obtained under the impugned Acts because these Acts had been long in operation before the amendment came into force and the petitioners were entitled to relief based on our decision in Saghir Ahmads case (A), supra. A similar argument was sought to be advanced before us in Bhikaji Narain Dhakras v. State of Madhya Pradesh, (S) AIR 1955 SC 781 (B) - and that argument was repelled by us in the manner following :"The contention of the respondents before us is that although the amending Act, on the authority of our decision is Saghir Ahmads case (A) (supra), became on and from 26-1-1950 void as against the citizens to the extent of its inconsistency with the provisions of Art 19(1)(g), nevertheless, after 18-6-1951 when clause (6) was amended by the Constitution (First Amendment) Act, 1951 the amending Act ceased to be inconsistent with fundamental right guaranteed by Art. 19(1)(g) read with the amended clause (6) of that Article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter alia, of motor transport business and it became operative again even as against the citizens.... In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, 1951 are well-founded and the objections urged against them by the petitioners are untenable and must be negatived."19. It is hardly necessary for us to consider the further contention urged by the petitioners, viz., that the fundamental right guaranteed under Art. 19(1)(f) and under Art. 31 (2) had been violated. If the permits held by them under the Motor Vehicles Act, 1939 were prematurely terminated or cancelled under the provisions of Orissa Act XXXV of 1947 compensation was provided by the Act itself. If there was no renewal of their permits on the expiration thereof after they had run for their normal period by virtue of the provisions of Orissa Act I of 1949, no claim could be made by them on the score of such non-renewal because renewal was not a matter of right. The Provincial Transport Authority or the Regional Transport Authority would be well within their rights to refuse such renewal having regard to the provisions of the amended Ss. 47 and 55 of the Motor Vehicles Act, 1939, and, if at all there was any deprivation of their proprietary right, it would be by authority of law.20. Nor need we pause to consider the last contention urged on behalf of the petitioners that the impugned Acts violated the guarantee of freedom of inter-State and intra-State trade or business embodied in Article 301 of the Constitution. In the first instance, it is not a fundamental right conferred by Part III of the Constitution which can be enforced by a petition under Art. 32. Moreover, Art. 305 as it stood before the amendment and the amended Article 305 which came into effect after the Constitution (Fourth Amendment) Act, 1955, afford a complete answer to this contention of the petitioners.20.
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### Explanation:
The provisions of both the Acts being materially different as set out above the application of one Act to particular districts of the State and of the other Act to the other districts of the State was violative of the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution. The owners of stage carriage services to whom Orissa Act XXXVI of 1947 applied had the additional advantage of having compensation granted to them in accordance with the terms of section 6 thereof which advantage was not available to those owners of stage carriage services to whom Orissa Act I of 1949 wasnucleus of transport services which had been owned by the State Government had to be utilized so far as it was available and having regard to the situation as it obtained,the State Government naturally though of applying Orissa Act I of 1949 to certain districts of the State leaving the other districts to be served by the mode envisaged in Orissa Act XXXVI of 1947. Such a zonal or territorial or geographical division of the several districts of the State for implementation of the scheme of Nationalized State Transport by either the formation of a Joint-Stock Company or the running of the State Transport Service was based on the availability of the transport services acquired by the State Government from the various merging States and if such a division was made having regard to the situation as it thus obtained, no challenge could be made against it on the ground of discrimination or the denial of equal protection ofargument, however, ignores the fact that under Orissa Act XXXVI of 1947, the permits issued or renewed in favour of the owners of stage carriage services by the Provincial Transport Authority or the Regional Transport Authority cease to be operative or are canceled by the Provincial Government as the case may be and compensation is given to such permit holders for such premature termination or cancellation of theirowners of stage carriage services to whom Orissa Act I of 1949 is applied stand, however, on a different footing. Their permits continue for the normal period and the considerations which are laid down in clauses (f) and (g) which have been thereby added to Ss. 47 and 55 ofthe Motor Vehicles Act, 1939, would come into play when these permits which have expired by lapse of time come to be considered for renewal on applications made by permit holders in thatpermits may or may not be renewed in favour of these permit holders but the non-renewal of such permits would not be on a par with the premature termination or cancellation of the permits held by the owners of stage carriage services to whom the provisions of Orissa Act XXXVI of 1947 were applied. The two positions, therefore, are not similar and the permit holders under Orissa Act I of 1949 do not fall in the same class or group as the permit holders under Orissa Act XXXVI ofis no question, therefore, of any discrimination between these two classes or groups of permit holders and it cannot be validly urged that the provisions of the impugned Acts in so far as they applied to different classes or groups of permit holders are in any manner violative of the fundamental right embodied in Art. 14 of theOrissa Road Transport Co. Ltd., which is a Joint-Stock Company formed under the provisions of Orissa Act XXXVI of 1947 and the State Transport Services which are envisaged in Orissa Act I of 1949 would, therefore, be able to carry on their business even if it resulted in the complete elimination of the private-owned stage carriage services without any violation of the fundamental right guaranteed under Art. 19(1)(g) of thethe permits held by them underthe Motor Vehicles Act, 1939 were prematurely terminated or cancelled under the provisions of Orissa Act XXXV of 1947 compensation was provided by the Act itself. If there was no renewal of their permits on the expiration thereof after they had run for their normal period by virtue of the provisions of Orissa Act I of 1949, no claim could be made by them on the score of such non-renewal because renewal was not a matter of right.
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Iridium India Telecom Ltd Vs. Motorola Inc | 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State legislature or by the High Court, as the case may be in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasizing this in view of the decision of the Allahabad High Court which is now under appeal before us." In our view, Section 97 of the Amending Act does not, in any way, affect the special hierarchial status given to the proceedings before the Chartered High Courts on its Original Side. It was merely intended to standardize and make uniform the law as to civil procedure in other Civil Courts. 46. Kulwant Kaur (supra) was concerned with a situation where Punjab Courts Act, 1918 had a special right of appeal and the question was whether the amended provisions in Section 100 of the CPC, as amended by Act 104 of 1976, would exclude appeals under Section 41 of the Punjab Courts Act, 1918. The view taken was that there was inconsistency between the provisions of the Punjab Courts Act and the provisions of Section 97(1) of the CPC. By reason of Article 254, the Section 97(1) of the CPC, being the Central Act, was held to prevail. It was pointed out in the judgment that though Section 4 of the Civil Procedure Code, 1908 saved special or local laws in the absence of any specific provision to the contrary, Section 97(1) was such a provision to the contrary, and, therefore, the saving under Section 4 would no longer be available to the local Act. Consequently, it was held, "language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field." We do not think that this decision carries forward the argument. 47. Finally, it was argued by Mr. Jethmalani that the Letters Patent, and the rules made thereunder by the High Court for regulating its procedure on the Original Side, were subordinate legislation and, therefore, must give way to the superior legislation, namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first place, Section 2(18) of the CPC defines "rules" to mean "rules and forms contained in the First Schedule or made under section 122 or section 125". The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a Chartered High Court makes it clear that those rules are not "rules as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by section 129, are relegated to a subordinate status, as contended by the learned counsel. We might usefully refer to the observations of the Constitutional Bench of this Court in P.S. Santhappan (Dead) by LRs. vs. Andhra Bank Ltd. & Ors. JT 2004(8) SC 464 . With reference to Letters Patent, that is what the Constitution Bench said: "148. It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters patent. As has been held in Vinita Khanolhars JT 1997 (9) SC 490 case and Sharda Devis JT 2002 (3) SC 43 case a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimajis 1982 (1) SCR 187 case a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code in the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A." 48. Far from doing away with the Letters Patent, the amending Act of 2002 has left unscathed the provisions of section 129 and what follows therefrom. The contention must, therefore, fail. | 0[ds]19. The Legislature recognized the special role assigned to the Chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary or extra-ordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers of the Chartered High Courts under clause 37 of the Letters Patent. Interestingly, Section 652 of this Act itself empowered the High Courts to make rules consistent with this Code to regulate any matter connected with the procedure of the Courts of Civil Judicature subject to its superintendence", suggesting that consistency with the Code was a sine qua non only when making rules for the subordinate courtsThere are two difficulties in accepting this argument. In the first place, Section 2(18) of the CPC defines "rules" to mean "rules and forms contained in the First Schedule or made under section 122 or section 125". The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a Chartered High Court makes it clear that those rules are not "rules as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by section 129, are relegated to a subordinate status, as contended by the learned counsel48. Far from doing away with the Letters Patent, the amending Act of 2002 has left unscathed the provisions of section 129 and what follows therefrom. The contention must, therefore, fail. | 0 | 8,325 | 301 | ### 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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97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State legislature or by the High Court, as the case may be in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasizing this in view of the decision of the Allahabad High Court which is now under appeal before us." In our view, Section 97 of the Amending Act does not, in any way, affect the special hierarchial status given to the proceedings before the Chartered High Courts on its Original Side. It was merely intended to standardize and make uniform the law as to civil procedure in other Civil Courts. 46. Kulwant Kaur (supra) was concerned with a situation where Punjab Courts Act, 1918 had a special right of appeal and the question was whether the amended provisions in Section 100 of the CPC, as amended by Act 104 of 1976, would exclude appeals under Section 41 of the Punjab Courts Act, 1918. The view taken was that there was inconsistency between the provisions of the Punjab Courts Act and the provisions of Section 97(1) of the CPC. By reason of Article 254, the Section 97(1) of the CPC, being the Central Act, was held to prevail. It was pointed out in the judgment that though Section 4 of the Civil Procedure Code, 1908 saved special or local laws in the absence of any specific provision to the contrary, Section 97(1) was such a provision to the contrary, and, therefore, the saving under Section 4 would no longer be available to the local Act. Consequently, it was held, "language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field." We do not think that this decision carries forward the argument. 47. Finally, it was argued by Mr. Jethmalani that the Letters Patent, and the rules made thereunder by the High Court for regulating its procedure on the Original Side, were subordinate legislation and, therefore, must give way to the superior legislation, namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first place, Section 2(18) of the CPC defines "rules" to mean "rules and forms contained in the First Schedule or made under section 122 or section 125". The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a Chartered High Court makes it clear that those rules are not "rules as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by section 129, are relegated to a subordinate status, as contended by the learned counsel. We might usefully refer to the observations of the Constitutional Bench of this Court in P.S. Santhappan (Dead) by LRs. vs. Andhra Bank Ltd. & Ors. JT 2004(8) SC 464 . With reference to Letters Patent, that is what the Constitution Bench said: "148. It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters patent. As has been held in Vinita Khanolhars JT 1997 (9) SC 490 case and Sharda Devis JT 2002 (3) SC 43 case a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimajis 1982 (1) SCR 187 case a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code in the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A." 48. Far from doing away with the Letters Patent, the amending Act of 2002 has left unscathed the provisions of section 129 and what follows therefrom. The contention must, therefore, fail.
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19. The Legislature recognized the special role assigned to the Chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary or extra-ordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers of the Chartered High Courts under clause 37 of the Letters Patent. Interestingly, Section 652 of this Act itself empowered the High Courts to make rules consistent with this Code to regulate any matter connected with the procedure of the Courts of Civil Judicature subject to its superintendence", suggesting that consistency with the Code was a sine qua non only when making rules for the subordinate courtsThere are two difficulties in accepting this argument. In the first place, Section 2(18) of the CPC defines "rules" to mean "rules and forms contained in the First Schedule or made under section 122 or section 125". The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a Chartered High Court makes it clear that those rules are not "rules as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by section 129, are relegated to a subordinate status, as contended by the learned counsel48. Far from doing away with the Letters Patent, the amending Act of 2002 has left unscathed the provisions of section 129 and what follows therefrom. The contention must, therefore, fail.
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Rattan Lal Gupta & Ors. Etc. Etc Vs. Suraj Bhan & Ors. Etc. Etc | of 1965 D/- 27-10-1967 (SC)*(supra). Baluram v. State Transport Appellate Authority, M.P. S.A. No. 727 of 1965 D/- 22-3-1968 (SC) and R. Obliswami Naidu, (1970) 3 SCR 730 = (AIR 1969 SC 1130 ) (supra) as follows:*Reported in (1967) 2 S.C.W.R. 857"The next question which falls for determination is the point of time when a Regional Transport Authority will under Section 47 (3) of the Act fix the limit of number of stage carriage permits. This Court in Abdul Mateens case, (1963) 3 SCR 523 = (AiR 1963 SC 64 ) said that the general order by the Regional Transport Authority under Section 47(3) of the Act in regard to the limit of number of stage carriage permits can be modified only by the Regional Transport Authority when exercising the jurisdiction under Section 47 (3) of the Act. The Regional Transport Authority while acting under Section 43 of the Act in regard to the grant of permits has no jurisdiction and authority to modify any order passed by the Regional Transport Authority under Section 47 (3) of the Act. In other words, the limit fixed by the Regional Transport Authority under Section 47 (3) of the Act cannot be altered by the Regional Transport Authority at the time of grant of permits. It is, therefore, established that the determination of limit of number of permits is to be made before the grant of pemits. That is why Section 48 of the Act is prefaced with the words "subject to the provisions of Section 47 of the Act" meaning thereby that the jurisdiction of the Regional Transport Authority to grant permits is subject to the determination of the limit of number of permits under Section 47 (3) of the Act. This Court stated the legal position in M/s. Jaya Ram Motor Services case, C.A. No. 95 of 1965 D/- 27-10-1967 (SC)*and said `it is therefore clear that the authority has first to fix the limit and after having done so consider the application or the representations in connection therewith in accordance with the procedure laid down in S.57 of the Act" Again in the case of R. Obliswami Naidu, (1969) 3 SCR 730 = (All 1969 SC 1130) this Court considered the submission in that case as to whether the Regional Transport Authority could decide the number of permits while considering applications for permits. This Court did not accept the submission because such a view could allow an operator who happened to apply first to be in a commending position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer. In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and thereafter applications for permits are to be entertained".*Reported in (1967) 2 S.C.W.R. 8577. As the RTA had not fixed the number of permits for the longer route, we agree with the High Court that the grant of permits for the longer route is invalid.But the legal position in regard to the grant of permits on the shorter route is different. Admittedly, on March 23, 1959, the RTA had fixed the number of permits for this route at 25. As 17 permits had already been granted, the RTA invited applications for eight vacancies on June 13, 1959. So the strength was fixed long before the invitation of applications for permits. It is true that at one stage the RTA had taken the view that the shorter route had merged in the longer route; but later it rectified the mistake and held that the shorter route and the longer route existed separately. We think that the second view of the RTA was correct in the then prevailing circumstances. On July 18, 1958, the RTA resolved that "Muzaffarnagar-Budhana-Kandhla route be extended to Gangeru-Issupurteel". The extension was made under the U. P. Motor Vehicles Taxation Act. At no time the RTA has taken a decision for abolishing the shorter route. In its meeting on August 2-4, 1961, the RTA upheld the objection that the shorter route had ceased to exist. The RTA said, "Originally Muzaffarnagar-Budhana-Kandhla was the name of the route. Subsequently about six miles of kachcha route was considered motorable and then the RTA on 18-7-1958 declared that Muzaffarnagar-Budhana-Kandhla route be extended upto Issupurteel. After this decision the Muzaffarnagar-Budhana-Kandhla route could not have separate existence but was merged in the longer route".As already pointed out, a decision to extend the shorter route to a longer distance under the Motor Vehicles Taxation Act will not authmatically merge the shorter route in the longer route. For that purpose it was necessary for the RTA to take an independent decision under the Motor Vehicles Act. But no such decision was taken.The RTA realised the mistake and rectified it in its meeting on May 6-8, 1965. The RTA then decided:"We have considered the entire matter carefully and have perused all earlier resolution of the RTA. We are of the opinion that Muzaffarnagar-Budhana-Kandhla (the shorter route) still exists with a strength of 25 stage carriages and that the shorter route and the longer route are separate routes. Even after the approval of the longer route by the STA, the RTA... had offered permits to displaced operators on the shorter route".We think that this resolution states the correct position.8. It may be mentioned at this place that in the August meeting the RTA reduced the strength of shorter route from 25 to 9. That could not be done. In the result, there would remain eight vacancies on the shorter route for which the RTA had already invited applications. So the RTA could validly grant eight permits to the appellants in the third group. The STA rightly affirmed this decision of the RTA. The High Court, in our view, was not right in quashing the grant of permits to the appellants in the third group. | 0[ds]7. As the RTA had not fixed the number of permits for the longer route, we agree with the High Court that the grant of permits for the longer route is invalid.But the legal position in regard to the grant of permits on the shorter route is different. Admittedly, on March 23, 1959, the RTA had fixed the number of permits for this route at 25. As 17 permits had already been granted, the RTA invited applications for eight vacancies on June 13, 1959. So the strength was fixed long before the invitation of applications for permits. It is true that at one stage the RTA had taken the view that the shorter route had merged in the longer route; but later it rectified the mistake and held that the shorter route and the longer route existed separately. We think that the second view of the RTA was correct in the then prevailing circumstances. On July 18, 1958, the RTA resolved that "Muzaffarnagar-Budhana-Kandhla route be extended to Gangeru-Issupurteel". The extension was made under the U. P. Motor Vehicles Taxation Act. At no time the RTA has taken a decision for abolishing the shorter route. In its meeting on August 2-4, 1961, the RTA upheld the objection that the shorter route had ceased to exist. The RTA said, "Originally Muzaffarnagar-Budhana-Kandhla was the name of the route. Subsequently about six miles of kachcha route was considered motorable and then the RTA on 18-7-1958 declared that Muzaffarnagar-Budhana-Kandhla route be extended upto Issupurteel. After this decision the Muzaffarnagar-Budhana-Kandhla route could not have separate existence but was merged in the longer route".As already pointed out, a decision to extend the shorter route to a longer distance under the Motor Vehicles Taxation Act will not authmatically merge the shorter route in the longer route. For that purpose it was necessary for the RTA to take an independent decision under the Motor Vehicles Act. But no such decision was taken.The RTA realised the mistake and rectified it in its meeting on May 6-8, 1965. The RTA thenhave considered the entire matter carefully and have perused all earlier resolution of the RTA. We are of the opinion that Muzaffarnagar-Budhana-Kandhla (the shorter route) still exists with a strength of 25 stage carriages and that the shorter route and the longer route are separate routes. Even after the approval of the longer route by the STA, the RTA... had offered permits to displaced operators on the shorterthink that this resolution states the correct position.8. It may be mentioned at this place that in the August meeting the RTA reduced the strength of shorter route from 25 to 9. That could not be done. In the result, there would remain eight vacancies on the shorter route for which the RTA had already invited applications. So the RTA could validly grant eight permits to the appellants in the third group. The STA rightly affirmed this decision of the RTA. The High Court, in our view, was not right in quashing the grant of permits to the appellants in the third group. | 0 | 3,150 | 564 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
of 1965 D/- 27-10-1967 (SC)*(supra). Baluram v. State Transport Appellate Authority, M.P. S.A. No. 727 of 1965 D/- 22-3-1968 (SC) and R. Obliswami Naidu, (1970) 3 SCR 730 = (AIR 1969 SC 1130 ) (supra) as follows:*Reported in (1967) 2 S.C.W.R. 857"The next question which falls for determination is the point of time when a Regional Transport Authority will under Section 47 (3) of the Act fix the limit of number of stage carriage permits. This Court in Abdul Mateens case, (1963) 3 SCR 523 = (AiR 1963 SC 64 ) said that the general order by the Regional Transport Authority under Section 47(3) of the Act in regard to the limit of number of stage carriage permits can be modified only by the Regional Transport Authority when exercising the jurisdiction under Section 47 (3) of the Act. The Regional Transport Authority while acting under Section 43 of the Act in regard to the grant of permits has no jurisdiction and authority to modify any order passed by the Regional Transport Authority under Section 47 (3) of the Act. In other words, the limit fixed by the Regional Transport Authority under Section 47 (3) of the Act cannot be altered by the Regional Transport Authority at the time of grant of permits. It is, therefore, established that the determination of limit of number of permits is to be made before the grant of pemits. That is why Section 48 of the Act is prefaced with the words "subject to the provisions of Section 47 of the Act" meaning thereby that the jurisdiction of the Regional Transport Authority to grant permits is subject to the determination of the limit of number of permits under Section 47 (3) of the Act. This Court stated the legal position in M/s. Jaya Ram Motor Services case, C.A. No. 95 of 1965 D/- 27-10-1967 (SC)*and said `it is therefore clear that the authority has first to fix the limit and after having done so consider the application or the representations in connection therewith in accordance with the procedure laid down in S.57 of the Act" Again in the case of R. Obliswami Naidu, (1969) 3 SCR 730 = (All 1969 SC 1130) this Court considered the submission in that case as to whether the Regional Transport Authority could decide the number of permits while considering applications for permits. This Court did not accept the submission because such a view could allow an operator who happened to apply first to be in a commending position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer. In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and thereafter applications for permits are to be entertained".*Reported in (1967) 2 S.C.W.R. 8577. As the RTA had not fixed the number of permits for the longer route, we agree with the High Court that the grant of permits for the longer route is invalid.But the legal position in regard to the grant of permits on the shorter route is different. Admittedly, on March 23, 1959, the RTA had fixed the number of permits for this route at 25. As 17 permits had already been granted, the RTA invited applications for eight vacancies on June 13, 1959. So the strength was fixed long before the invitation of applications for permits. It is true that at one stage the RTA had taken the view that the shorter route had merged in the longer route; but later it rectified the mistake and held that the shorter route and the longer route existed separately. We think that the second view of the RTA was correct in the then prevailing circumstances. On July 18, 1958, the RTA resolved that "Muzaffarnagar-Budhana-Kandhla route be extended to Gangeru-Issupurteel". The extension was made under the U. P. Motor Vehicles Taxation Act. At no time the RTA has taken a decision for abolishing the shorter route. In its meeting on August 2-4, 1961, the RTA upheld the objection that the shorter route had ceased to exist. The RTA said, "Originally Muzaffarnagar-Budhana-Kandhla was the name of the route. Subsequently about six miles of kachcha route was considered motorable and then the RTA on 18-7-1958 declared that Muzaffarnagar-Budhana-Kandhla route be extended upto Issupurteel. After this decision the Muzaffarnagar-Budhana-Kandhla route could not have separate existence but was merged in the longer route".As already pointed out, a decision to extend the shorter route to a longer distance under the Motor Vehicles Taxation Act will not authmatically merge the shorter route in the longer route. For that purpose it was necessary for the RTA to take an independent decision under the Motor Vehicles Act. But no such decision was taken.The RTA realised the mistake and rectified it in its meeting on May 6-8, 1965. The RTA then decided:"We have considered the entire matter carefully and have perused all earlier resolution of the RTA. We are of the opinion that Muzaffarnagar-Budhana-Kandhla (the shorter route) still exists with a strength of 25 stage carriages and that the shorter route and the longer route are separate routes. Even after the approval of the longer route by the STA, the RTA... had offered permits to displaced operators on the shorter route".We think that this resolution states the correct position.8. It may be mentioned at this place that in the August meeting the RTA reduced the strength of shorter route from 25 to 9. That could not be done. In the result, there would remain eight vacancies on the shorter route for which the RTA had already invited applications. So the RTA could validly grant eight permits to the appellants in the third group. The STA rightly affirmed this decision of the RTA. The High Court, in our view, was not right in quashing the grant of permits to the appellants in the third group.
### Response:
0
### Explanation:
7. As the RTA had not fixed the number of permits for the longer route, we agree with the High Court that the grant of permits for the longer route is invalid.But the legal position in regard to the grant of permits on the shorter route is different. Admittedly, on March 23, 1959, the RTA had fixed the number of permits for this route at 25. As 17 permits had already been granted, the RTA invited applications for eight vacancies on June 13, 1959. So the strength was fixed long before the invitation of applications for permits. It is true that at one stage the RTA had taken the view that the shorter route had merged in the longer route; but later it rectified the mistake and held that the shorter route and the longer route existed separately. We think that the second view of the RTA was correct in the then prevailing circumstances. On July 18, 1958, the RTA resolved that "Muzaffarnagar-Budhana-Kandhla route be extended to Gangeru-Issupurteel". The extension was made under the U. P. Motor Vehicles Taxation Act. At no time the RTA has taken a decision for abolishing the shorter route. In its meeting on August 2-4, 1961, the RTA upheld the objection that the shorter route had ceased to exist. The RTA said, "Originally Muzaffarnagar-Budhana-Kandhla was the name of the route. Subsequently about six miles of kachcha route was considered motorable and then the RTA on 18-7-1958 declared that Muzaffarnagar-Budhana-Kandhla route be extended upto Issupurteel. After this decision the Muzaffarnagar-Budhana-Kandhla route could not have separate existence but was merged in the longer route".As already pointed out, a decision to extend the shorter route to a longer distance under the Motor Vehicles Taxation Act will not authmatically merge the shorter route in the longer route. For that purpose it was necessary for the RTA to take an independent decision under the Motor Vehicles Act. But no such decision was taken.The RTA realised the mistake and rectified it in its meeting on May 6-8, 1965. The RTA thenhave considered the entire matter carefully and have perused all earlier resolution of the RTA. We are of the opinion that Muzaffarnagar-Budhana-Kandhla (the shorter route) still exists with a strength of 25 stage carriages and that the shorter route and the longer route are separate routes. Even after the approval of the longer route by the STA, the RTA... had offered permits to displaced operators on the shorterthink that this resolution states the correct position.8. It may be mentioned at this place that in the August meeting the RTA reduced the strength of shorter route from 25 to 9. That could not be done. In the result, there would remain eight vacancies on the shorter route for which the RTA had already invited applications. So the RTA could validly grant eight permits to the appellants in the third group. The STA rightly affirmed this decision of the RTA. The High Court, in our view, was not right in quashing the grant of permits to the appellants in the third group.
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M/S. Tamil Nadu State Trpt. Corporation Vs. Natarajan | the provisions of Motor Vehicles Act 1939 in the Court of Subordinate Judge, Chidambaram. In the claim petition only the proprietor of the private bus and the insurance company from which it was insured were made parties. The Claims Tribunal i.e. the Court of Subordinate Judge, Chidambaram in its award made on 21.10.1986 came to the conclusion that the cause of accident was due to contributory negligence of the drivers of both the buses and their liability was apportioned to be 50:50 per cent. The total quantum of compensation determined by the Tribunal is Rs. 1,20,000/- (Rupees One Lac & Twenty Thousand) only. In view the fact that the claimant as driver of the Corporation bus was negligent to the extent of fifty percent, the Claims Tribunal fixed joint liability of the private bus owner and its insurance company at Rs. 60,000/- (Rupees Sixty Thousand) only with interest rate at 9% per annum from the date of filing the claim petition.4. The respondent/claimant preferred an appeal to the High Court seeking enhancement of the amount of compensation. The learned Single Judge of the High Court dismissed the appeal on 7.3.1996 on the ground that there was long nine years delay in re-filing the appeal after remedying the defects pointed out at the initial filing of the appeal.5. Against rejection of the appeal by the learned Single Judge, the claimant preferred Letters Patent Appeal before the Division Bench of the High Court of Madras. The Division Bench suo motu impleaded the present appellant-Corporation as respondent in the appeal before it. The Division Bench upheld finding of the tribunal that the cause of accident was contributory negligence on the part of drivers of both the vehicles. The Division Bench re-determined the quantum of compensation and held the claimant entitled to a total sum of Rs. 2,09,800/- Rupees two lakhs nine thousand & eight hundred) only on different heads. It also awarded 9% interest per annum on the amount of compensation from the date of filing claim petition. Surprisingly without stating the law, the Division Bench ordered that the compensation awarded shall be borne equally by the insurer of the private bus (respondent No.3 herein) and the Corporation (the appellant herein). 6. Learned counsel appearing for the appellant-Corporation contends that the claimant had not made the Corporation as a party-respondent either before the Tribunal or in appeal before the learned Single Judge. There was no justification in law for the Division Bench to suo motu implead the Corporation as a party in the Letters Patent Appeal and to fasten liability to the extent of 50% of the total sum awarded on the Corporation. 7. The owner of the private bus was initially impleaded as respondent No.2 in the Special Leave Petition before us but his name subsequently came to be deleted as he was reported to have died in the course of proceedings before the High Court. His legal heirs were not brought on record and his name was allowed to be deleted by this Court. 8. The insurer of the private bus is however before us as respondent No.3. The learned counsel appearing for the insurance company is also heard. The contention advanced on behalf of the insurance company is that since the Corporation did not prefer any appeal against the order dated 30.11.2001 where-under the Division Bench suo motu impleaded it as a party, the grievance raised in this appeal before this Court should not be entertained. Such argument is unacceptable as we have to decide on the correctness of the ultimate order made in the appeal by the High Court. 9. From the facts of the case and nature of the claim stated above, we find absolutely no justification in law for the Division Bench of the Madras High Court in its impugned order imposing liability to the extent of 50% on the appellant/Corporation. The Division Bench of the High Court completely over-looked that the claimant himself was driver of the Corporation bus and was found negligent to the extent of 50% for causing accident. In view of the above finding of the contributory negligence on the part of the claimant as driver of the Corporation bus, the Corporation as an employer cannot be held to be vicariously liable for the negligence of the claimant himself. The claim petition did not make the Corporation as a party to the claim obviously because the claimant exercised option of approaching the Claims Tribunal under the Motor Vehicles Act against the owner and insurer of the private bus. He did not file any claim under the Workmen Compensation Act against the employer. Since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held liable under the provision of Motor Vehicle Act. It was not a claim based on no fault liability. It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant/Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent/insurance company as insurer of private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800/- (Rupees two lakh nine thousand & eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900/- (Rupees one lakh four thousand & nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded. | 1[ds]It was not a claim based on no fault liability. It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant/Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent/insurance company as insurer of private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800/(Rupees two lakh nine thousand & eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900/(Rupees one lakh four thousand & nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded. | 1 | 1,232 | 216 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the provisions of Motor Vehicles Act 1939 in the Court of Subordinate Judge, Chidambaram. In the claim petition only the proprietor of the private bus and the insurance company from which it was insured were made parties. The Claims Tribunal i.e. the Court of Subordinate Judge, Chidambaram in its award made on 21.10.1986 came to the conclusion that the cause of accident was due to contributory negligence of the drivers of both the buses and their liability was apportioned to be 50:50 per cent. The total quantum of compensation determined by the Tribunal is Rs. 1,20,000/- (Rupees One Lac & Twenty Thousand) only. In view the fact that the claimant as driver of the Corporation bus was negligent to the extent of fifty percent, the Claims Tribunal fixed joint liability of the private bus owner and its insurance company at Rs. 60,000/- (Rupees Sixty Thousand) only with interest rate at 9% per annum from the date of filing the claim petition.4. The respondent/claimant preferred an appeal to the High Court seeking enhancement of the amount of compensation. The learned Single Judge of the High Court dismissed the appeal on 7.3.1996 on the ground that there was long nine years delay in re-filing the appeal after remedying the defects pointed out at the initial filing of the appeal.5. Against rejection of the appeal by the learned Single Judge, the claimant preferred Letters Patent Appeal before the Division Bench of the High Court of Madras. The Division Bench suo motu impleaded the present appellant-Corporation as respondent in the appeal before it. The Division Bench upheld finding of the tribunal that the cause of accident was contributory negligence on the part of drivers of both the vehicles. The Division Bench re-determined the quantum of compensation and held the claimant entitled to a total sum of Rs. 2,09,800/- Rupees two lakhs nine thousand & eight hundred) only on different heads. It also awarded 9% interest per annum on the amount of compensation from the date of filing claim petition. Surprisingly without stating the law, the Division Bench ordered that the compensation awarded shall be borne equally by the insurer of the private bus (respondent No.3 herein) and the Corporation (the appellant herein). 6. Learned counsel appearing for the appellant-Corporation contends that the claimant had not made the Corporation as a party-respondent either before the Tribunal or in appeal before the learned Single Judge. There was no justification in law for the Division Bench to suo motu implead the Corporation as a party in the Letters Patent Appeal and to fasten liability to the extent of 50% of the total sum awarded on the Corporation. 7. The owner of the private bus was initially impleaded as respondent No.2 in the Special Leave Petition before us but his name subsequently came to be deleted as he was reported to have died in the course of proceedings before the High Court. His legal heirs were not brought on record and his name was allowed to be deleted by this Court. 8. The insurer of the private bus is however before us as respondent No.3. The learned counsel appearing for the insurance company is also heard. The contention advanced on behalf of the insurance company is that since the Corporation did not prefer any appeal against the order dated 30.11.2001 where-under the Division Bench suo motu impleaded it as a party, the grievance raised in this appeal before this Court should not be entertained. Such argument is unacceptable as we have to decide on the correctness of the ultimate order made in the appeal by the High Court. 9. From the facts of the case and nature of the claim stated above, we find absolutely no justification in law for the Division Bench of the Madras High Court in its impugned order imposing liability to the extent of 50% on the appellant/Corporation. The Division Bench of the High Court completely over-looked that the claimant himself was driver of the Corporation bus and was found negligent to the extent of 50% for causing accident. In view of the above finding of the contributory negligence on the part of the claimant as driver of the Corporation bus, the Corporation as an employer cannot be held to be vicariously liable for the negligence of the claimant himself. The claim petition did not make the Corporation as a party to the claim obviously because the claimant exercised option of approaching the Claims Tribunal under the Motor Vehicles Act against the owner and insurer of the private bus. He did not file any claim under the Workmen Compensation Act against the employer. Since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held liable under the provision of Motor Vehicle Act. It was not a claim based on no fault liability. It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant/Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent/insurance company as insurer of private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800/- (Rupees two lakh nine thousand & eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900/- (Rupees one lakh four thousand & nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded.
### Response:
1
### Explanation:
It was not a claim based on no fault liability. It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant/Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent/insurance company as insurer of private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800/(Rupees two lakh nine thousand & eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900/(Rupees one lakh four thousand & nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded.
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TRF Ltd Vs. Energo Engineering Projects Ltd | parties to nominate their respective arbitrator, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the "named sole arbitrator" and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and others v. Commissioner of Land Records & Settlement, Cuttack and others, (1998) 7 SCC 162. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held:"25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an "officer", an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate."54. Be it noted in the said case, reference was made to Behari Kunj Sahkari Awas Samiti v. State of U.P., 1997(4) R.C.R (Civil) 95 : (1997) 7 SCC 37 , which followed the decision in Roop Chand v. State of Punjab, AIR 1963 SC 1503 . It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra).55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). In the said case, the three-Judge Bench applied the maxim "Qui facit per alium facit per se". We may profitably reproduce the passage:"9. ... The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: "Qui facit per alium facit per se" (What one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the "pucca adatia", or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only."56. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee.57. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator. | 1[ds]9. We have reproduced the entire Clause 33 to appreciate the dispute resolution mechanism in its proper perspective.(c) of Clause 33 clearly postulates that if the dispute cannot be settled by negotiation, it has to be determined under the Act, as amended. Therefore, the amended provisions doa careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of thethe said waiver can only take place subsequent to dispute having arisen between the parties; and such waiver must be by an express agreement in writing.24. The aforesaid decision clearly lays down that it is not open to either of the parties to unilaterally appoint an arbitrator for resolution of the disputes in a situation that had arisen in the said case.The purpose of referring to the aforesaid judgments is that courts in certain circumstances have exercised the jurisdiction to nullify the appointments made by the authorities as there has been failure of procedure or ex facie contravention of the inherent facet of the arbitration clause.The said pronouncement, as we find, is factually distinguishable and it cannot be said in absolute terms that the proceeding once initiated could not be interfered with the proceeding under Section 11 of the Act. As we find, the said case pertained to ICC Rules and, in any case, we are disposed to observe that the said case rests upon its ownit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.We have discussed in detail to understand the context in which judgment in Associated Contractors (supra) was delivered. Suffice it to mention that in Walter Bau AG (supra), the designated Judge only reiterated the principles which have been stated by age Bench decisions that had dealt with Section 11 of the Act. We may also hasten to make it clear that the authority in Associated Contractors (supra) deals with a different situation and it has nothing to do with the conundrum that has arisen in the instant case. We have devoted some space as the said authority was pressed into service with enormous conviction. Beit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.It is worthy to note here that in the said case, the Court set aside the impugned order as the designated Judge had entered into the billing disputes, which he could not have. The purpose of referring to these two judgments is that apart from the fact that the Designated Judge can, at the initial stage, adjudicate upon his jurisdiction, he is also entitled to scrutinize the existence of the condition precedent for the exercise of his power and also the disqualification of the arbitrator orthe impugned order would indicate, the learned Judge has opined that there had been no failure of procedure, for there was a request for appointment of an arbitrator and an arbitrator has been appointed. It is apt to state here that the present factual score projects a different picture altogether and we have to carefully analyse thethink it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance.In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator. | 1 | 12,618 | 1,114 | ### 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:
parties to nominate their respective arbitrator, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the "named sole arbitrator" and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and others v. Commissioner of Land Records & Settlement, Cuttack and others, (1998) 7 SCC 162. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held:"25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an "officer", an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate."54. Be it noted in the said case, reference was made to Behari Kunj Sahkari Awas Samiti v. State of U.P., 1997(4) R.C.R (Civil) 95 : (1997) 7 SCC 37 , which followed the decision in Roop Chand v. State of Punjab, AIR 1963 SC 1503 . It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra).55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). In the said case, the three-Judge Bench applied the maxim "Qui facit per alium facit per se". We may profitably reproduce the passage:"9. ... The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: "Qui facit per alium facit per se" (What one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the "pucca adatia", or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only."56. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee.57. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator.
### Response:
1
### Explanation:
9. We have reproduced the entire Clause 33 to appreciate the dispute resolution mechanism in its proper perspective.(c) of Clause 33 clearly postulates that if the dispute cannot be settled by negotiation, it has to be determined under the Act, as amended. Therefore, the amended provisions doa careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of thethe said waiver can only take place subsequent to dispute having arisen between the parties; and such waiver must be by an express agreement in writing.24. The aforesaid decision clearly lays down that it is not open to either of the parties to unilaterally appoint an arbitrator for resolution of the disputes in a situation that had arisen in the said case.The purpose of referring to the aforesaid judgments is that courts in certain circumstances have exercised the jurisdiction to nullify the appointments made by the authorities as there has been failure of procedure or ex facie contravention of the inherent facet of the arbitration clause.The said pronouncement, as we find, is factually distinguishable and it cannot be said in absolute terms that the proceeding once initiated could not be interfered with the proceeding under Section 11 of the Act. As we find, the said case pertained to ICC Rules and, in any case, we are disposed to observe that the said case rests upon its ownit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.We have discussed in detail to understand the context in which judgment in Associated Contractors (supra) was delivered. Suffice it to mention that in Walter Bau AG (supra), the designated Judge only reiterated the principles which have been stated by age Bench decisions that had dealt with Section 11 of the Act. We may also hasten to make it clear that the authority in Associated Contractors (supra) deals with a different situation and it has nothing to do with the conundrum that has arisen in the instant case. We have devoted some space as the said authority was pressed into service with enormous conviction. Beit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.It is worthy to note here that in the said case, the Court set aside the impugned order as the designated Judge had entered into the billing disputes, which he could not have. The purpose of referring to these two judgments is that apart from the fact that the Designated Judge can, at the initial stage, adjudicate upon his jurisdiction, he is also entitled to scrutinize the existence of the condition precedent for the exercise of his power and also the disqualification of the arbitrator orthe impugned order would indicate, the learned Judge has opined that there had been no failure of procedure, for there was a request for appointment of an arbitrator and an arbitrator has been appointed. It is apt to state here that the present factual score projects a different picture altogether and we have to carefully analyse thethink it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance.In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator.
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Workmen Of Metro Theatre Ltd., Bombay Vs. Metro Theatre Ltd., Bombay | the expression award. Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under an existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so there is no reason why the expression award should be construed as referring to an existing award and not to include a fresh award that may be made by an adjudicator or an industrial court improving in favour of the employees the scheme obtaining under the Act or the existing award. Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by an employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature. This also becomes amply clear from the provisions of Section 5 which confer power upon the appropriate Government to exempt any establishment to which the Act applies from the operation of the provisions of the Act if in its opinion the employees in such establishment, are in receipt of gratuity benefits not less favourable than the benefits conferred under the Act. Therefore, on true construction we are clearly of the view that the expression award occurring in the above provision does not mean and cannot be confined to existing award but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant. It is true, as has been observed, by this Court in State of Punjab v. Labour Court, Jullundur and others, [1981-I L.L.J. 354], that the Act enacts a complete Code containing detailed provisions covering all essential features of the scheme for payment of gratuity. But it is also clear that the scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future. In other words, the view taken by the Tribunal that it could not go beyond the scheme of gratuity contemplated by the Act is clearly erroneous.9. The decision of this Court in Alembic Chemical Works Ltd. (supra), which was under the Factories Act, also lends support to such beneficent construction. In that case the Industrial Tribunal had fixed the quantum of leave, privilege and sick, for the staff of a manufacturing concern on a scale more liberal than the one in force for the operatives of the same concern. It also made necessary direction regarding accumulation of such leave. The quantum of leave so fixed by the Tribunal was larger than the quantum of leave presicribed under the provisions of Section79(1) of the Factories Act. It was contended that Section79 of the Act was exhaustive and had selfcontained provisions with regard to the granting of annual leave with wages to the employees, that it had the effect of introducing standardisation in the matter of leave and that no addition to the said leave could be made either by a contract or by an award. This Court negatived the said contention on the language of Section 79(1) itself. Additionally, provisions of Section 78 were relied upon which recognised exemptions to the leave prescribed by Section 79(1). Section 78(1) provided that provisions of Chapter VIII [including Section 79(1)] shall not operate to the prejudice of any right to which a worker may be entitled "under any other law or under the terms of any award, agreement or contract of service", and a proviso to this sub-section laid down taht when such award, agreement or contract of service provided for longer annual leave with wages than provided under the Chapter, the worker shall be entitled only to such longer annual leave. It was contended that the expression "any award" in Section 78(1) applied only to existing award. The Court negatived this contention and held that the contention was palinly inconsistent with a fair and reasonable construction of the said provision and that Section 78(1) protected not merely awards, agreements or contracts of service then existing but also those that would come into existence later. In the instant case also we are clearly of the opinion that the pharse "under any award, agreement or contract with the employer" occurring in Section 4(5) is intended to cover future awards, agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under S.5 of the Act.10. We may also state here that in the other adjudication done by the same adjudicator (Shri B. B. Tambe) as the Sole Arbitrator in Reference (VA) No. 1 of 1979 (M/s. Alankar Theatre and 39 other theatres v. The Workmen employed under them), he has come to a contrary conclusion and has held that under Section4(5) of the Payment of Gratuity Act an adjudicator can grant better terms of gratuity and has actually proceeded to grant better terms of gratuity to the workmen employed in all the theatres concerned in that Reference (vide para 140 of the Award). Realising this position, counsel for the company before us fairly conceded that the employees in the Metro Cinema would also be entitled to better terms of gratuity - the same as given to employees in other cinema houses. Counsel for the parties, therefore, agreed before us that gratuity scheme as set out by Shri Tambe in para 140 of his award dated June 27, 1980 in Reference (VA) No. 1 of 1979 should apply to the workmen of Metro Cinema. We accordingly, direct that the gratuity scheme as set out in paragraph 140 of the above award would be applicable to the workmen of Metro Cinema with effect from January 1, 1977. | 1[ds]3. It is difficult to accept this contention and interfere with the discretion exercised by the Tribunal in the matter which can be done only if it is shown to have been unreasonably exercised. Under Section17-A(4) ofthe Industrial Disputes Act, 1947 it is a matter of discretion for the Tribunal to decide having regard to the circumstances of each case from which date its award should come into operation and no general rule can be laid down as to the date from which the Tribunal should bring its award into force and this Court shall not interfere with the Tribunals order in that behalf unless substantial ground is made out showing unreasonable exercise on its part. Even the three decisions cited by the counsel clearly bring out the aforesaid position in law. The Tribunal was deciding the Reference in August 1977 and though the additional burden may not have been more than Rs. 1, 00, 000 or Rs. 1, 20, 000 per year for the three years 1974, 1975 and 1976 if retrospective effect was given to the revision, no material was placed before theComing to the second point of linkage of dearness allowance with some rational principle the Unions contention before the Tribunal was, and the same contention has been reiterated by the counsel for the Union in the appealthat the dearness allowance should be linked with the cost of living index and Consumers Price Indexas point out that the Bombay Working Class Consumers Price Index was 800 in 1970 (when the earlier award in the matter of D.A. was given), that it had gone up to 1372 in 1977 and that, therefore, dearness allowance on Index No.should be fixed on 4 weekly basis with a variation for every ten points rise orfall. But the Tribunal negatived the contention and fixed the dearness allowance on the normal principle of industry-cum-region and the only reason for not linking it to the cost of living index was that such linkage did not obtain in any concern falling in the category of Cinema Exhibiting Industry which could not be compared with manufacturing industries like textile where such linkage operated. Counselfor the appellant Union pointed out that the same adjudicator (Shri B. B. Tambe) as Sole Arbitrator in Reference (VA) No. 1 of 1979 in the industrial dispute between M/s. Alankar Theatre and 38 other theatres of Bombay (cinemas falling in classes, B and C) and the workmen employed under them had made an award on June 27, 1980 (published in Maharashtra Government Gazette on October 9, 1980) wherein dearness allowance has been linked with the rise in the cost of living index and the Consumers Price IndexNumber. The result has been that in Cinema Exhibiting Industry all the other 39 theatres will be paying to their workers dearness allowance linked with the cost of living index while in the case of workmen of Metro Theatre there will be no such linkage which would be contrary to normal uniformity which is always desirable in one and the same industry. We find considerable force in this contention urged by counsel for the appellant Union.On the other hand, counsel for the Company pointed out that the aforesaid award of Shri Tambe in Reference (VA) No. 1 of 1979 dated June 27, 1980 is under challenge before the Bombay High Court in Writ Petition 79 of 1981 at the instance of the management and as such the question whether dearness allowance in the Cinema Exhibiting Industry should be linked with the cost of living index is still pending consideration before the High Court. Moreover, he urged that there are certain peculiar features of the Cinema Exhibiting Industry by reason of which it would be inappropriate to link the dearness allowance payable to a worker in that industry with the cost of living index. For instance, he point out, that unlike manufacturing concerns, there is little scope for enhancing the profits in Cinema Exhibiting Industry inasmuch as the principal source of income beingn the same is connected with and limited by the seating accommodation in any theatre. However, notwithstanding this limiting factor the same adjudicator has granted the linkage in case of 39 cinema houses in Bombay which shows that other factors must have weighed with him as outweighing this limitingfactor. We are clearly of the opinion that uniformity on this aspect is highly desirable in one and the same industry. The main reason for the refusal to grant such linkage (i.e. linking the D.A. with the cost of living index) having disappeared the question will have to be considered afresh. We do not think that adequate and sufficient material is available on the record of this case before us to decide this issue satisfactorily. Further it would not be advisable to direct the parties before us to intervene in the matter pending before the High Court, for, material which may be peculiar to Metro Cinema may have to be produced and considered before the issue is properly decided. We, therefore, remand this issue back to the Industrial Tribunal for disposal in accordance with law with a direction that the Tribunal should give opportunity to both the parties to produce additional material and after hearing them should decide the same afresh. It will be open to the management to raise all contentions including the contention that dearness allowance should not be linked with cost of living index but should be granted on normal principle of industry-cum-region formula. We wish to make it clear that in case the issue is answered by the Tribunal in favour of the Company, the appellant Union shall not raise any contentions on the quantum of dearness allowance that has been allowed by the Tribunal in its award on the basis of industry-cum-region formula, for the quantum aspect of the revision has become final by reason of the limited leave that was granted by this Court while admitting theappears that the existing scheme of gratuity in the Metro Theatre, Bombay was as per the award in Reference (IT No. 1 of 1968) and the same had been modified by an agreement between the parties in this Court, which, the Union contended, had become extremely inadequate and desired to have a more beneficial scheme in some respects for its workers. Counselfor the Union urged that it was open to the Tribunal to give more benefit than were available under the scheme contemplated by the Act and in that behalf reliance was placed on Section4(5) of the Act.Counsel for theCompany contended that the expression award in Section 4(5) meant an existing award and as such if under the existing award better terms were given to the employees these will not be affected. It was also urged that the Act was exhaustive and was intended to ensure uniform payment of gratuity to the employees throughout thecountry. The Tribunal accepted the contention of the management and held that it could not go beyond the scheme contemplated by the Act, and, therefore directed that the gratuity scheme as per the Act shall prevail subject to the modifications arrived at under the terms of settlement, if any, if they were morethe first place there is nothing in the provision which limits the expression award.Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under an existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so there is no reason why the expression award should be construed as referring to an existing award and not to include a fresh award that may be made by an adjudicator or an industrial court improving in favour of the employees the scheme obtaining under the Act or the existing award. Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by an employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature. This also becomes amply clear from the provisions of Section 5 which confer power upon the appropriate Government to exempt any establishment to which the Act applies from the operation of the provisions of the Act if in its opinion the employees in such establishment, are in receipt of gratuity benefits not less favourable than the benefits conferred under the Act. Therefore, on true construction we are clearly of the view that the expression award occurring in the above provision does not mean and cannot be confined to existing award but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant.The decision of this Court in Alembic Chemical Works Ltd. (supra), which was under the Factories Act, also lends support to such beneficent construction. In that case the Industrial Tribunal had fixed the quantum of leave, privilege and sick, for the staff of a manufacturing concern on a scale more liberal than the one in force for the operatives of the same concern. It also made necessary direction regarding accumulation of such leave. The quantum of leave so fixed by the Tribunal was larger than the quantum of leave presicribed under the provisions of Section79(1) of the Factories Act. It was contended that Section79 of the Act was exhaustive and had selfcontained provisions with regard to the granting of annual leave with wages to the employees, that it had the effect of introducing standardisation in the matter of leave and that no addition to the said leave could be made either by a contract or by an award. This Court negatived the said contention on the language of Section 79(1) itself. Additionally, provisions of Section 78 were relied upon which recognised exemptions to the leave prescribed by Section 79(1). Section 78(1) provided that provisions of Chapter VIII [including Section 79(1)] shall not operate to the prejudice of any right to which a worker may be entitled "under any other law or under the terms of any award, agreement or contract of service", and a proviso to thislaid down taht when such award, agreement or contract of service provided for longer annual leave with wages than provided under the Chapter, the worker shall be entitled only to such longer annual leave. It was contended that the expression "any award" in Section 78(1) applied only to existing award. The Court negatived this contention and held that the contention was palinly inconsistent with a fair and reasonable construction of the said provision and that Section 78(1) protected not merely awards, agreements or contracts of service then existing but also those that would come into existence later. In the instant case also we are clearly of the opinion that the pharse "under any award, agreement or contract with the employer" occurring in Section 4(5) is intended to cover future awards, agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under S.5 of the Act.10. We may also state here that in the other adjudication done by the same adjudicator (Shri B. B. Tambe) as the Sole Arbitrator in Reference (VA) No. 1 of 1979 (M/s. Alankar Theatre and 39 other theatres v. The Workmen employed under them), he has come to a contrary conclusion and has held that under Section4(5) of the Payment of Gratuity Act an adjudicator can grant better terms of gratuity and has actually proceeded to grant better terms of gratuity to the workmen employed in all the theatres concerned in that Reference (vide para 140 of the Award). Realisingthis position, counsel for the company before us fairly conceded that the employees in the Metro Cinema would also be entitled to better terms of gratuitythe same as given to employees in other cinema houses.Counsel for theparties, therefore, agreed before us that gratuity scheme as set out by Shri Tambe in para 140 of his award dated June 27, 1980 in Reference (VA) No. 1 of 1979 should apply to the workmen of Metro Cinema. We accordingly, direct that the gratuity scheme as set out in paragraph 140 of the above award would be applicable to the workmen of Metro Cinema with effect from January 1, 1977. | 1 | 3,635 | 2,259 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the expression award. Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under an existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so there is no reason why the expression award should be construed as referring to an existing award and not to include a fresh award that may be made by an adjudicator or an industrial court improving in favour of the employees the scheme obtaining under the Act or the existing award. Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by an employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature. This also becomes amply clear from the provisions of Section 5 which confer power upon the appropriate Government to exempt any establishment to which the Act applies from the operation of the provisions of the Act if in its opinion the employees in such establishment, are in receipt of gratuity benefits not less favourable than the benefits conferred under the Act. Therefore, on true construction we are clearly of the view that the expression award occurring in the above provision does not mean and cannot be confined to existing award but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant. It is true, as has been observed, by this Court in State of Punjab v. Labour Court, Jullundur and others, [1981-I L.L.J. 354], that the Act enacts a complete Code containing detailed provisions covering all essential features of the scheme for payment of gratuity. But it is also clear that the scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future. In other words, the view taken by the Tribunal that it could not go beyond the scheme of gratuity contemplated by the Act is clearly erroneous.9. The decision of this Court in Alembic Chemical Works Ltd. (supra), which was under the Factories Act, also lends support to such beneficent construction. In that case the Industrial Tribunal had fixed the quantum of leave, privilege and sick, for the staff of a manufacturing concern on a scale more liberal than the one in force for the operatives of the same concern. It also made necessary direction regarding accumulation of such leave. The quantum of leave so fixed by the Tribunal was larger than the quantum of leave presicribed under the provisions of Section79(1) of the Factories Act. It was contended that Section79 of the Act was exhaustive and had selfcontained provisions with regard to the granting of annual leave with wages to the employees, that it had the effect of introducing standardisation in the matter of leave and that no addition to the said leave could be made either by a contract or by an award. This Court negatived the said contention on the language of Section 79(1) itself. Additionally, provisions of Section 78 were relied upon which recognised exemptions to the leave prescribed by Section 79(1). Section 78(1) provided that provisions of Chapter VIII [including Section 79(1)] shall not operate to the prejudice of any right to which a worker may be entitled "under any other law or under the terms of any award, agreement or contract of service", and a proviso to this sub-section laid down taht when such award, agreement or contract of service provided for longer annual leave with wages than provided under the Chapter, the worker shall be entitled only to such longer annual leave. It was contended that the expression "any award" in Section 78(1) applied only to existing award. The Court negatived this contention and held that the contention was palinly inconsistent with a fair and reasonable construction of the said provision and that Section 78(1) protected not merely awards, agreements or contracts of service then existing but also those that would come into existence later. In the instant case also we are clearly of the opinion that the pharse "under any award, agreement or contract with the employer" occurring in Section 4(5) is intended to cover future awards, agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under S.5 of the Act.10. We may also state here that in the other adjudication done by the same adjudicator (Shri B. B. Tambe) as the Sole Arbitrator in Reference (VA) No. 1 of 1979 (M/s. Alankar Theatre and 39 other theatres v. The Workmen employed under them), he has come to a contrary conclusion and has held that under Section4(5) of the Payment of Gratuity Act an adjudicator can grant better terms of gratuity and has actually proceeded to grant better terms of gratuity to the workmen employed in all the theatres concerned in that Reference (vide para 140 of the Award). Realising this position, counsel for the company before us fairly conceded that the employees in the Metro Cinema would also be entitled to better terms of gratuity - the same as given to employees in other cinema houses. Counsel for the parties, therefore, agreed before us that gratuity scheme as set out by Shri Tambe in para 140 of his award dated June 27, 1980 in Reference (VA) No. 1 of 1979 should apply to the workmen of Metro Cinema. We accordingly, direct that the gratuity scheme as set out in paragraph 140 of the above award would be applicable to the workmen of Metro Cinema with effect from January 1, 1977.
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Act and in that behalf reliance was placed on Section4(5) of the Act.Counsel for theCompany contended that the expression award in Section 4(5) meant an existing award and as such if under the existing award better terms were given to the employees these will not be affected. It was also urged that the Act was exhaustive and was intended to ensure uniform payment of gratuity to the employees throughout thecountry. The Tribunal accepted the contention of the management and held that it could not go beyond the scheme contemplated by the Act, and, therefore directed that the gratuity scheme as per the Act shall prevail subject to the modifications arrived at under the terms of settlement, if any, if they were morethe first place there is nothing in the provision which limits the expression award.Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under an existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so there is no reason why the expression award should be construed as referring to an existing award and not to include a fresh award that may be made by an adjudicator or an industrial court improving in favour of the employees the scheme obtaining under the Act or the existing award. Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by an employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature. This also becomes amply clear from the provisions of Section 5 which confer power upon the appropriate Government to exempt any establishment to which the Act applies from the operation of the provisions of the Act if in its opinion the employees in such establishment, are in receipt of gratuity benefits not less favourable than the benefits conferred under the Act. Therefore, on true construction we are clearly of the view that the expression award occurring in the above provision does not mean and cannot be confined to existing award but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant.The decision of this Court in Alembic Chemical Works Ltd. (supra), which was under the Factories Act, also lends support to such beneficent construction. In that case the Industrial Tribunal had fixed the quantum of leave, privilege and sick, for the staff of a manufacturing concern on a scale more liberal than the one in force for the operatives of the same concern. It also made necessary direction regarding accumulation of such leave. The quantum of leave so fixed by the Tribunal was larger than the quantum of leave presicribed under the provisions of Section79(1) of the Factories Act. It was contended that Section79 of the Act was exhaustive and had selfcontained provisions with regard to the granting of annual leave with wages to the employees, that it had the effect of introducing standardisation in the matter of leave and that no addition to the said leave could be made either by a contract or by an award. This Court negatived the said contention on the language of Section 79(1) itself. Additionally, provisions of Section 78 were relied upon which recognised exemptions to the leave prescribed by Section 79(1). Section 78(1) provided that provisions of Chapter VIII [including Section 79(1)] shall not operate to the prejudice of any right to which a worker may be entitled "under any other law or under the terms of any award, agreement or contract of service", and a proviso to thislaid down taht when such award, agreement or contract of service provided for longer annual leave with wages than provided under the Chapter, the worker shall be entitled only to such longer annual leave. It was contended that the expression "any award" in Section 78(1) applied only to existing award. The Court negatived this contention and held that the contention was palinly inconsistent with a fair and reasonable construction of the said provision and that Section 78(1) protected not merely awards, agreements or contracts of service then existing but also those that would come into existence later. In the instant case also we are clearly of the opinion that the pharse "under any award, agreement or contract with the employer" occurring in Section 4(5) is intended to cover future awards, agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under S.5 of the Act.10. We may also state here that in the other adjudication done by the same adjudicator (Shri B. B. Tambe) as the Sole Arbitrator in Reference (VA) No. 1 of 1979 (M/s. Alankar Theatre and 39 other theatres v. The Workmen employed under them), he has come to a contrary conclusion and has held that under Section4(5) of the Payment of Gratuity Act an adjudicator can grant better terms of gratuity and has actually proceeded to grant better terms of gratuity to the workmen employed in all the theatres concerned in that Reference (vide para 140 of the Award). Realisingthis position, counsel for the company before us fairly conceded that the employees in the Metro Cinema would also be entitled to better terms of gratuitythe same as given to employees in other cinema houses.Counsel for theparties, therefore, agreed before us that gratuity scheme as set out by Shri Tambe in para 140 of his award dated June 27, 1980 in Reference (VA) No. 1 of 1979 should apply to the workmen of Metro Cinema. We accordingly, direct that the gratuity scheme as set out in paragraph 140 of the above award would be applicable to the workmen of Metro Cinema with effect from January 1, 1977.
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India General Navigation and Railway Company, Limited, and Another Vs. Their Workmen | rules in the terms prescribed. While signing this agreement, the employee is required to mention, inter alia, the date of his birth. According to this rule, when Paul joined the said institution on 24 November, 1933 he made the relevant declaration and mentioned 18 Bhadra (Sunday) 1306 B.S. as the date of his birth; this date corresponds to 3 September, 1899. It is on the basis of this date which was treated as the date of Pauls birth in all the records of the appellant that he was retired on 1 January, 1961. Before the tribunal the appellant relied upon the declaration made by Paul and contended that it was perfectly justified in retiring Paul, because so far as the appellant was concerned, the declaration made by its employees while joining the said institution are generally treated as conclusive. It may be that in some cases if the employee is able to satisfy the appellant that the declaration made by him was the result of inadvertence or mistake, the appellant may in a proper case accept the explanation and agree to change the date of birth recorded in the said declaration; that, however is another matter. In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into the witness-box to explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.4. Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance. The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School. This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case. | 1[ds]2. It is clear that the question raised by the appellant is a pure question of fact, the decision of which depends on the appreciation of evidence adduced by the parties before the tribunal. This court does not generally interfere with finding of fact while dealing with appeals in industrial matters brought before it under Art. 136 of the Constitution. But, in the present case, we are satisfied that the appellant is entitled to claim that the award should be reversed, because the finding recorded by the tribunal on the question of fact referred to it is patently and palpably erroneous. Besides, there is considerable force in the contention raised by the appellant that if the reasoning adopted by the tribunal in upholding Pauls claim in the present proceedings is not revered, it may have a serious impact on a large number of similar cases of retirement which would arise from year to year in the undertaking of the appellant. That at why we have heard the parties on the merits and have come to the conclusion that the award must be set aside.The appellant carries on business of inland water transport in North East India and for the purpose of its business, it posts its workmen at different places including the district of Cachar in the state ofappears that as a result of an agreement between the appellant and thethe age of retirement for the workmen in the employment of the appellant has a scheme of 60In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into theto explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance.The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School.This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case. | 1 | 1,767 | 1,113 | ### 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:
rules in the terms prescribed. While signing this agreement, the employee is required to mention, inter alia, the date of his birth. According to this rule, when Paul joined the said institution on 24 November, 1933 he made the relevant declaration and mentioned 18 Bhadra (Sunday) 1306 B.S. as the date of his birth; this date corresponds to 3 September, 1899. It is on the basis of this date which was treated as the date of Pauls birth in all the records of the appellant that he was retired on 1 January, 1961. Before the tribunal the appellant relied upon the declaration made by Paul and contended that it was perfectly justified in retiring Paul, because so far as the appellant was concerned, the declaration made by its employees while joining the said institution are generally treated as conclusive. It may be that in some cases if the employee is able to satisfy the appellant that the declaration made by him was the result of inadvertence or mistake, the appellant may in a proper case accept the explanation and agree to change the date of birth recorded in the said declaration; that, however is another matter. In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into the witness-box to explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.4. Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance. The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School. This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case.
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with appeals in industrial matters brought before it under Art. 136 of the Constitution. But, in the present case, we are satisfied that the appellant is entitled to claim that the award should be reversed, because the finding recorded by the tribunal on the question of fact referred to it is patently and palpably erroneous. Besides, there is considerable force in the contention raised by the appellant that if the reasoning adopted by the tribunal in upholding Pauls claim in the present proceedings is not revered, it may have a serious impact on a large number of similar cases of retirement which would arise from year to year in the undertaking of the appellant. That at why we have heard the parties on the merits and have come to the conclusion that the award must be set aside.The appellant carries on business of inland water transport in North East India and for the purpose of its business, it posts its workmen at different places including the district of Cachar in the state ofappears that as a result of an agreement between the appellant and thethe age of retirement for the workmen in the employment of the appellant has a scheme of 60In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into theto explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance.The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School.This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case.
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M.P. Power Generation Co. Ltd. and Ors Vs. Ansaldo Energia SPA and Ors | a contract is not voidable if the party whose consent was taken had the means of discovering the truth with ordinary diligence, even if the consent was caused by misrepresentation. He also relied upon illustration (b), which deals with sale of a factory by B on the representation of A that 500 mounds of Indigo are made annually in the factory belonging to A. As B purchased the factory after examining the accounts of the factory, the contract was not voidable on account of As misrepresentation. Sh. Dave relied upon a judgment of the Full Bench of the Judicial Commissioners Court, Nagpur, in (Hazi) Mahomad Hazi Wali Mahomad v. Ramappa AIR 1929 Nagpur 254. In that case, the Defendant in the suit represented to the Plaintiff that the value of the property was about Rs. 9,000/-. Jackson A.J.C. held that even if such a statement was made by the Defendant, the Plaintiff was not entitled for a decree on the ground that it was impossible to believe that the Plaintiffs solely relied upon the statement of the Defendant as to the value of the property. It was further held that the Plaintiff could have obtained the value of the property without much trouble. In view of the above facts, the Judicial Commission observed as follows:Under Section 19, Contract Act, the rights given to a party who has entered into a contract under fraud or misrepresentation, are to avoid the contract or to insist on the contract being performed. The Section does not entitle the party to insist on an entirely different contract being performed. Moreover, the rights given by Section 19 are given only to a party whose consent to the contract was, in fact, caused by the fraud or misrepresentation.The said judgment has no application to the facts of this case. Similarly, Ganga Retreat & Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 relied upon by Sh. Dave would not be of any assistance to him.29. As discussed earlier, the evidence on record discloses that the Claimants could not ascertain the actual capacity and the functioning of the Units in spite of their best efforts. The relevant records were not furnished by the Board to enable the Claimants to ascertain the actual facts. The evidence on record supports the contention of the Claimants that it was not possible to ascertain the capacity and functioning of the Units only on the basis of visual inspections. We are afraid that we cannot agree with the submission of Sh. Dave on the point of misrepresentation as we find no good reason to differ from the view taken by the Arbitral Tribunal.Ext. GG-Value of the Equipments Supplied and Works Performed30. An amount of Rs. 11,14,55,042/- with interest was claimed towards the value of the RLA study and the performance of work relating to drum level system, UPA system, pressure parts and engineering drawings which could not be supplied due to the termination of the agreements. A detailed affidavit was filed by Sh. Fabio Rolla in lieu of his examination-in-chief. Voluminous evidence was produced to show the actual expenditure towards the above works. There was no meaningful cross-examination of Sh. Fabio Rolla on behalf of the Board. The determination of Issue No. 12 by the Arbitral Tribunal holding that the Claimants are entitled to the amounts claimed in Ex. GG annexed to the statement of claim i.e. Rs. 11,14,55,042/- is on the basis of appreciation of evidence. We have no hesitation in approving the said finding of fact of the Arbitral Tribunal.Ext. FF-Refund of amounts of Bank Guarantees31. The Claimants furnished three Bank Guarantees. Two Bank Guarantees dated 22.02.2000 and 23.02.2000 were for Rs. 9.29 crores and US $ 1,708,100/- towards the advance payment to be paid by the Board. The third Bank Guarantee was given by ANZ Grindlays Bank, New Delhi on behalf of the Claimant for Rs. 18.48 crores which was towards performance guarantee under Clause 4.1 of the Overall Coordination Agreement. The Bank Guarantees dated 22.02.2000 and 23.02.2000 were in terms of Clause 9.2 of the Onshore and Offshore Supply Contracts respectively. All the three Bank Guarantees were invoked by the Board on 23.06.2001. The Bank Guarantees given on 22.02.2000 and 23.02.2000 were conditional. The condition for invocation of such Bank Guarantees was non-fulfillment of the contractual obligations by the debtor. The third Bank Guarantee of 24.02.2000 was an unconditional Bank Guarantee. The Arbitral Tribunal was of the opinion that the invocation of the Bank Guarantee was improper as it was not preceded by a Notice of Default as contemplated in Clause 16.3 of the Supply Contracts and a subsequent notice of termination under Clause 17.1 of the Supply Contracts. In view of the finding of the Arbitral Tribunal that the Board committed a serious breach of the contract and wrongfully terminated the contract, the Claimant was held to be entitled to return of the amounts for which the Bank Guarantees were given.32. The Bank Guarantee given on 24.02.2000 was a Performance Bank Guarantee and the Claimant is entitled for return of the amount for which the Bank Guarantee was given. The Arbitral Tribunal, however, failed to take notice of the fact that the other two Bank Guarantees were given for the amounts to be advanced by the Board. In fact, the Board had advanced the said amounts to the Claimants. We are of the opinion that the Claimant is not entitled for return of the amounts involved in the Bank Guarantees dated 22.02.2000 and 23.02.2000 as they were towards the amounts advanced by the Board. The rejection of the claim pertaining to the damages mentioned in Ex. HH of the statement of claim which includes loss of profit, over-heads and loss of commercial opportunities clearly indicates that the Arbitral Tribunal never intended to grant any damages to the Claimant. The claims allowed by the Arbitral Tribunal pertained only to the return of the Claimants money involved in the Bank Guarantees and the amounts actually spent by the Claimants.Conclusion | 0[ds]22. The Arbitral Tribunal opined that the production of Letter of Comfort was a fundamental condition of the agreements and the Claimant cannot be said to have waived the production of Letter of Comfort. The contention of oral concession made by Sh. G. Ravindran was considered by the Arbitral Tribunal with reference to the evidence on record. The oral evidence of Sh. Saxena, Superintending Engineer and Sh. Shrivastava, Additional Superintending Engineer of the Board was referred to by the Arbitral Tribunal to hold that they admitted to the fact that there was no waiver to the production of Letter of Comfort in writing by the Claimants. Sh. Saxena, Superintending Engineer of the Board stated in his evidence that Sh. G. Ravinderan made a concession of waiver of production of the Letter of Comfort in a meeting. However, the details of the meeting could not be given by Sh. Saxena. The Arbitral Tribunal refused to accept the point canvassed by the Board relating to waiver on the basis of the evidence of Sh. Saxena. The contents of the letter dated 10.03.2000, written by the Claimant to the Board were examined by the Arbitral Tribunal to conclude that there was no waiver of production of the Letter of Comfort. According to the Arbitral Tribunal, the Claimant did not insist on the Letter of Comfort to be produced as a pre-condition to the Zero Date, which did not preclude to their seeking the same at a later date as per Clause 16.5 of the Overall Co-ordination Agreement and Clause 22 & 23 of the Supply and Services Contracts respectively. The production of the Letter of Comfort was a fundamental condition of the agreements and the failure to produce the same was a breach by the Board. The above findings on the Letter of Comfort are on appreciation of evidence. We do not see any reason to differ with the said findings26. On appreciation of the oral and documentary evidence produced by the parties, the assertion made by the Board that the Units were achieving a capacity of 120 MW when operating in accordance with the good industrial practice, was found to be incorrect by the Arbitral Tribunal. We do not intend to take a different view on the findings of the fact recorded by the Arbitral Tribunal27. Even if the Board believed that Units 3 and 4 were in fact designed for a capacity of 120 MW and operated at 120 MW, if it was found later that the assertion relating to the said capacity and functioning was not true, a clear case of misrepresentation, as per Section 18 of the Contract Act was made outThe said judgment has no application to the facts of this case. Similarly, Ganga Retreat & Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 relied upon by Sh. Dave would not be of any assistance to him29. As discussed earlier, the evidence on record discloses that the Claimants could not ascertain the actual capacity and the functioning of the Units in spite of their best efforts. The relevant records were not furnished by the Board to enable the Claimants to ascertain the actual facts. The evidence on record supports the contention of the Claimants that it was not possible to ascertain the capacity and functioning of the Units only on the basis of visual inspections. We are afraid that we cannot agree with the submission of Sh. Dave on the point of misrepresentation as we find no good reason to differ from the view taken by the Arbitral TribunalExt. GG-Value of the Equipments Supplied and Works Performed30. An amount of Rs. 11,14,55,042/- with interest was claimed towards the value of the RLA study and the performance of work relating to drum level system, UPA system, pressure parts and engineering drawings which could not be supplied due to the termination of the agreements. A detailed affidavit was filed by Sh. Fabio Rolla in lieu of his examination-in-chief. Voluminous evidence was produced to show the actual expenditure towards the above works. There was no meaningful cross-examination of Sh. Fabio Rolla on behalf of the Board. The determination of Issue No. 12 by the Arbitral Tribunal holding that the Claimants are entitled to the amounts claimed in Ex. GG annexed to the statement of claim i.e. Rs. 11,14,55,042/- is on the basis of appreciation of evidence. We have no hesitation in approving the said finding of fact of the Arbitral TribunalExt. FF-Refund of amounts of Bank Guarantees31. The Claimants furnished three Bank Guarantees. Two Bank Guarantees dated 22.02.2000 and 23.02.2000 were for Rs. 9.29 crores and US $ 1,708,100/- towards the advance payment to be paid by the Board. The third Bank Guarantee was given by ANZ Grindlays Bank, New Delhi on behalf of the Claimant for Rs. 18.48 crores which was towards performance guarantee under Clause 4.1 of the Overall Coordination Agreement. The Bank Guarantees dated 22.02.2000 and 23.02.2000 were in terms of Clause 9.2 of the Onshore and Offshore Supply Contracts respectively. All the three Bank Guarantees were invoked by the Board on 23.06.2001. The Bank Guarantees given on 22.02.2000 and 23.02.2000 were conditional. The condition for invocation of such Bank Guarantees was non-fulfillment of the contractual obligations by the debtor. The third Bank Guarantee of 24.02.2000 was an unconditional Bank Guarantee. The Arbitral Tribunal was of the opinion that the invocation of the Bank Guarantee was improper as it was not preceded by a Notice of Default as contemplated in Clause 16.3 of the Supply Contracts and a subsequent notice of termination under Clause 17.1 of the Supply Contracts. In view of the finding of the Arbitral Tribunal that the Board committed a serious breach of the contract and wrongfully terminated the contract, the Claimant was held to be entitled to return of the amounts for which the Bank Guarantees were given32. The Bank Guarantee given on 24.02.2000 was a Performance Bank Guarantee and the Claimant is entitled for return of the amount for which the Bank Guarantee was given. The Arbitral Tribunal, however, failed to take notice of the fact that the other two Bank Guarantees were given for the amounts to be advanced by the Board. In fact, the Board had advanced the said amounts to the Claimants. We are of the opinion that the Claimant is not entitled for return of the amounts involved in the Bank Guarantees dated 22.02.2000 and 23.02.2000 as they were towards the amounts advanced by the Board. The rejection of the claim pertaining to the damages mentioned in Ex. HH of the statement of claim which includes loss of profit, over-heads and loss of commercial opportunities clearly indicates that the Arbitral Tribunal never intended to grant any damages to the Claimant. The claims allowed by the Arbitral Tribunal pertained only to the return of the Claimants money involved in the Bank Guarantees and the amounts actually spent by the Claimants. | 0 | 9,043 | 1,245 | ### 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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a contract is not voidable if the party whose consent was taken had the means of discovering the truth with ordinary diligence, even if the consent was caused by misrepresentation. He also relied upon illustration (b), which deals with sale of a factory by B on the representation of A that 500 mounds of Indigo are made annually in the factory belonging to A. As B purchased the factory after examining the accounts of the factory, the contract was not voidable on account of As misrepresentation. Sh. Dave relied upon a judgment of the Full Bench of the Judicial Commissioners Court, Nagpur, in (Hazi) Mahomad Hazi Wali Mahomad v. Ramappa AIR 1929 Nagpur 254. In that case, the Defendant in the suit represented to the Plaintiff that the value of the property was about Rs. 9,000/-. Jackson A.J.C. held that even if such a statement was made by the Defendant, the Plaintiff was not entitled for a decree on the ground that it was impossible to believe that the Plaintiffs solely relied upon the statement of the Defendant as to the value of the property. It was further held that the Plaintiff could have obtained the value of the property without much trouble. In view of the above facts, the Judicial Commission observed as follows:Under Section 19, Contract Act, the rights given to a party who has entered into a contract under fraud or misrepresentation, are to avoid the contract or to insist on the contract being performed. The Section does not entitle the party to insist on an entirely different contract being performed. Moreover, the rights given by Section 19 are given only to a party whose consent to the contract was, in fact, caused by the fraud or misrepresentation.The said judgment has no application to the facts of this case. Similarly, Ganga Retreat & Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 relied upon by Sh. Dave would not be of any assistance to him.29. As discussed earlier, the evidence on record discloses that the Claimants could not ascertain the actual capacity and the functioning of the Units in spite of their best efforts. The relevant records were not furnished by the Board to enable the Claimants to ascertain the actual facts. The evidence on record supports the contention of the Claimants that it was not possible to ascertain the capacity and functioning of the Units only on the basis of visual inspections. We are afraid that we cannot agree with the submission of Sh. Dave on the point of misrepresentation as we find no good reason to differ from the view taken by the Arbitral Tribunal.Ext. GG-Value of the Equipments Supplied and Works Performed30. An amount of Rs. 11,14,55,042/- with interest was claimed towards the value of the RLA study and the performance of work relating to drum level system, UPA system, pressure parts and engineering drawings which could not be supplied due to the termination of the agreements. A detailed affidavit was filed by Sh. Fabio Rolla in lieu of his examination-in-chief. Voluminous evidence was produced to show the actual expenditure towards the above works. There was no meaningful cross-examination of Sh. Fabio Rolla on behalf of the Board. The determination of Issue No. 12 by the Arbitral Tribunal holding that the Claimants are entitled to the amounts claimed in Ex. GG annexed to the statement of claim i.e. Rs. 11,14,55,042/- is on the basis of appreciation of evidence. We have no hesitation in approving the said finding of fact of the Arbitral Tribunal.Ext. FF-Refund of amounts of Bank Guarantees31. The Claimants furnished three Bank Guarantees. Two Bank Guarantees dated 22.02.2000 and 23.02.2000 were for Rs. 9.29 crores and US $ 1,708,100/- towards the advance payment to be paid by the Board. The third Bank Guarantee was given by ANZ Grindlays Bank, New Delhi on behalf of the Claimant for Rs. 18.48 crores which was towards performance guarantee under Clause 4.1 of the Overall Coordination Agreement. The Bank Guarantees dated 22.02.2000 and 23.02.2000 were in terms of Clause 9.2 of the Onshore and Offshore Supply Contracts respectively. All the three Bank Guarantees were invoked by the Board on 23.06.2001. The Bank Guarantees given on 22.02.2000 and 23.02.2000 were conditional. The condition for invocation of such Bank Guarantees was non-fulfillment of the contractual obligations by the debtor. The third Bank Guarantee of 24.02.2000 was an unconditional Bank Guarantee. The Arbitral Tribunal was of the opinion that the invocation of the Bank Guarantee was improper as it was not preceded by a Notice of Default as contemplated in Clause 16.3 of the Supply Contracts and a subsequent notice of termination under Clause 17.1 of the Supply Contracts. In view of the finding of the Arbitral Tribunal that the Board committed a serious breach of the contract and wrongfully terminated the contract, the Claimant was held to be entitled to return of the amounts for which the Bank Guarantees were given.32. The Bank Guarantee given on 24.02.2000 was a Performance Bank Guarantee and the Claimant is entitled for return of the amount for which the Bank Guarantee was given. The Arbitral Tribunal, however, failed to take notice of the fact that the other two Bank Guarantees were given for the amounts to be advanced by the Board. In fact, the Board had advanced the said amounts to the Claimants. We are of the opinion that the Claimant is not entitled for return of the amounts involved in the Bank Guarantees dated 22.02.2000 and 23.02.2000 as they were towards the amounts advanced by the Board. The rejection of the claim pertaining to the damages mentioned in Ex. HH of the statement of claim which includes loss of profit, over-heads and loss of commercial opportunities clearly indicates that the Arbitral Tribunal never intended to grant any damages to the Claimant. The claims allowed by the Arbitral Tribunal pertained only to the return of the Claimants money involved in the Bank Guarantees and the amounts actually spent by the Claimants.Conclusion
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refused to accept the point canvassed by the Board relating to waiver on the basis of the evidence of Sh. Saxena. The contents of the letter dated 10.03.2000, written by the Claimant to the Board were examined by the Arbitral Tribunal to conclude that there was no waiver of production of the Letter of Comfort. According to the Arbitral Tribunal, the Claimant did not insist on the Letter of Comfort to be produced as a pre-condition to the Zero Date, which did not preclude to their seeking the same at a later date as per Clause 16.5 of the Overall Co-ordination Agreement and Clause 22 & 23 of the Supply and Services Contracts respectively. The production of the Letter of Comfort was a fundamental condition of the agreements and the failure to produce the same was a breach by the Board. The above findings on the Letter of Comfort are on appreciation of evidence. We do not see any reason to differ with the said findings26. On appreciation of the oral and documentary evidence produced by the parties, the assertion made by the Board that the Units were achieving a capacity of 120 MW when operating in accordance with the good industrial practice, was found to be incorrect by the Arbitral Tribunal. We do not intend to take a different view on the findings of the fact recorded by the Arbitral Tribunal27. Even if the Board believed that Units 3 and 4 were in fact designed for a capacity of 120 MW and operated at 120 MW, if it was found later that the assertion relating to the said capacity and functioning was not true, a clear case of misrepresentation, as per Section 18 of the Contract Act was made outThe said judgment has no application to the facts of this case. Similarly, Ganga Retreat & Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 relied upon by Sh. Dave would not be of any assistance to him29. As discussed earlier, the evidence on record discloses that the Claimants could not ascertain the actual capacity and the functioning of the Units in spite of their best efforts. The relevant records were not furnished by the Board to enable the Claimants to ascertain the actual facts. The evidence on record supports the contention of the Claimants that it was not possible to ascertain the capacity and functioning of the Units only on the basis of visual inspections. We are afraid that we cannot agree with the submission of Sh. Dave on the point of misrepresentation as we find no good reason to differ from the view taken by the Arbitral TribunalExt. GG-Value of the Equipments Supplied and Works Performed30. An amount of Rs. 11,14,55,042/- with interest was claimed towards the value of the RLA study and the performance of work relating to drum level system, UPA system, pressure parts and engineering drawings which could not be supplied due to the termination of the agreements. A detailed affidavit was filed by Sh. Fabio Rolla in lieu of his examination-in-chief. Voluminous evidence was produced to show the actual expenditure towards the above works. There was no meaningful cross-examination of Sh. Fabio Rolla on behalf of the Board. The determination of Issue No. 12 by the Arbitral Tribunal holding that the Claimants are entitled to the amounts claimed in Ex. GG annexed to the statement of claim i.e. Rs. 11,14,55,042/- is on the basis of appreciation of evidence. We have no hesitation in approving the said finding of fact of the Arbitral TribunalExt. FF-Refund of amounts of Bank Guarantees31. The Claimants furnished three Bank Guarantees. Two Bank Guarantees dated 22.02.2000 and 23.02.2000 were for Rs. 9.29 crores and US $ 1,708,100/- towards the advance payment to be paid by the Board. The third Bank Guarantee was given by ANZ Grindlays Bank, New Delhi on behalf of the Claimant for Rs. 18.48 crores which was towards performance guarantee under Clause 4.1 of the Overall Coordination Agreement. The Bank Guarantees dated 22.02.2000 and 23.02.2000 were in terms of Clause 9.2 of the Onshore and Offshore Supply Contracts respectively. All the three Bank Guarantees were invoked by the Board on 23.06.2001. The Bank Guarantees given on 22.02.2000 and 23.02.2000 were conditional. The condition for invocation of such Bank Guarantees was non-fulfillment of the contractual obligations by the debtor. The third Bank Guarantee of 24.02.2000 was an unconditional Bank Guarantee. The Arbitral Tribunal was of the opinion that the invocation of the Bank Guarantee was improper as it was not preceded by a Notice of Default as contemplated in Clause 16.3 of the Supply Contracts and a subsequent notice of termination under Clause 17.1 of the Supply Contracts. In view of the finding of the Arbitral Tribunal that the Board committed a serious breach of the contract and wrongfully terminated the contract, the Claimant was held to be entitled to return of the amounts for which the Bank Guarantees were given32. The Bank Guarantee given on 24.02.2000 was a Performance Bank Guarantee and the Claimant is entitled for return of the amount for which the Bank Guarantee was given. The Arbitral Tribunal, however, failed to take notice of the fact that the other two Bank Guarantees were given for the amounts to be advanced by the Board. In fact, the Board had advanced the said amounts to the Claimants. We are of the opinion that the Claimant is not entitled for return of the amounts involved in the Bank Guarantees dated 22.02.2000 and 23.02.2000 as they were towards the amounts advanced by the Board. The rejection of the claim pertaining to the damages mentioned in Ex. HH of the statement of claim which includes loss of profit, over-heads and loss of commercial opportunities clearly indicates that the Arbitral Tribunal never intended to grant any damages to the Claimant. The claims allowed by the Arbitral Tribunal pertained only to the return of the Claimants money involved in the Bank Guarantees and the amounts actually spent by the Claimants.
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UNION OF INDIA & ORS Vs. NAVNEET KUMAR | with Rule 9(4) of the 2011 Rules. The High Court found fault with the decision of the ACC as it was contrary to the recommendations made by the Selection Committee which was approved by the Chief Justice of India. The High Court allowed the writ petition and directed the ACC to take a decision afresh for the grant of extension of the respondents term of appointment as Judicial Member of the Central Administrative Tribunal. 7. On behalf of the appellants, Mr. Sanjay Jain, learned Additional Solicitor General, submitted that the High Court committed an error in holding that the recommendation made by the Selection Committee for carrying forward the vacancies to the next year i.e. 2017, stood set aside by the judgment of the High Court dated 08.05.2019. According to learned ASG, after the recommendation was made by the Selection Committee to the competent authority, the additional material which came to the notice of the authorities was placed before the Selection Committee. Pursuant thereto, the Selection Committee decided that the vacancies which were to be filled up by the appointment of the respondent and Shri A.K. Bhardwaj should be carried forward to the next year i.e. 2017. The said recommendation of the Selection Committee was approved by the Chief Justice of India. It was further argued by Mr. Jain that the High Court, by a judgment dated 08.05.2019, only directed the competent authority to pass an order in accordance with Rule 9(4) of the 2011 Rules. It was contended on behalf of the appellants, that a suitable order in terms of the recommendations made by the Selection Committee which was approved by the Chief Justice of India was passed. 8. Mr. Pradeep Kant, learned senior counsel appearing on behalf of the respondent, stated that the recommendations made by the Selection Committee to extend the tenure of the respondent has to be complied with by the competent authority. However, the competent authority taking into account certain inputs given by DoPT referred the request of the respondent for extension of term of appointment to the Selection Committee. The request that was made by ACC to the Selection Committee relates only to carrying forward the vacancies of 2016 to the next year which was approved by the Selection Committee. The said approval does not amount to rejection of the respondents request for extension of his tenure for another term. It was submitted on behalf of the respondent that the judgement of the High Court dated 08.05.2019, set aside the proceedings dated 06.03.2017 by which the ACC had returned the proposal for extension of term of appointment of the respondent and the letter dated 12.04.2017 by which the Chairman, Central Administrative Tribunal was informed about the rejection of extension of tenure of the respondent was also set aside. Learned senior counsel appearing for the respondent, supported the impugned judgment by arguing that the High Court, in its judgement dated 08.05.2019, had already considered the complaints that were made against the respondent which was the basis for the rejection of the respondents request for extension of his term. The High Court, in its judgment dated 08.05.2019, observed that there was nothing adverse against the respondent on the basis of which the request for extension could be rejected. 9. The facts of this case are not in dispute. Initially, the Selection Committee headed by a sitting Judge of this Court recommended the extension of the respondent as Judicial Member of the Central Administrative Tribunal for another term. The said recommendation was approved by the Chief Justice of India. Thereafter, additional material surfaced which was placed before the Selection Committee by the Competent Authority for seeking review of the earlier decision. We have carefully examined the original record. It is clear from the record that the Selection Committee recorded that the ACC had returned the proposal for extension of the tenure of the respondent after taking a decision not to fill up the vacancies by extending the term of the respondent and Shri A.K. Bhardwaj. It was recommended by the Selection Committee to carry forward the said vacancies to the year 2017. Therefore, we are not in agreement with the contention of the respondent that the recommendation made by the Selection Committee to carry forward the 2016 vacancies to year 2017 does not amount to rejection of the request of the respondent for extension of his term as Judicial Member of the Central Administrative Tribunal. There cannot be any manner of doubt that a conscious decision was taken by the Selection Committee not to recommend the extension of tenure of the respondent. The decision taken by the Selection Committee was duly approved by the Chief Justice of India. 10. The High Court committed an error in holding that the recommendation made by the Selection Committee to carry forward the vacancies to year 2017 was set aside by the High Court, in its earlier order dated 08.05.2019. The reason given for such conclusion is that the letter dated 12.04.2017 by which DoPT informed the Chairman of the Central Administrative Tribunal that the said vacancies of 2016 will be filled up along with the vacancies for the year 2017 was set aside. A close scrutiny of the judgment dated 08.05.2019 would show that the direction of the High Court was that the ACC should pass an order in accordance with Rule 9(4) of the 2011 Rules pursuant to the recommendations made by the Selection Committee and approved by the Chief Justice of India. Setting aside the order dated 12.04.2017 cannot be understood as the recommendation of the Selection Committee being set aside. 11. The ACC did not take any decision contrary to the recommendation made by the Selection Committee which was approved by the Chief Justice of India. Pursuant to the direction issued by the High Court on 08.05.2019, the order passed on 11.10.2019 by the ACC is neither contrary to the recommendation made by the Selection Committee nor in violation of the directions issued by the High Court. | 1[ds]9. The facts of this case are not in dispute. Initially, the Selection Committee headed by a sitting Judge of this Court recommended the extension of the respondent as Judicial Member of the Central Administrative Tribunal for another term. The said recommendation was approved by the Chief Justice of India. Thereafter, additional material surfaced which was placed before the Selection Committee by the Competent Authority for seeking review of the earlier decision. We have carefully examined the original record. It is clear from the record that the Selection Committee recorded that the ACC had returned the proposal for extension of the tenure of the respondent after taking a decision not to fill up the vacancies by extending the term of the respondent and Shri A.K. Bhardwaj. It was recommended by the Selection Committee to carry forward the said vacancies to the year 2017. Therefore, we are not in agreement with the contention of the respondent that the recommendation made by the Selection Committee to carry forward the 2016 vacancies to year 2017 does not amount to rejection of the request of the respondent for extension of his term as Judicial Member of the Central Administrative Tribunal. There cannot be any manner of doubt that a conscious decision was taken by the Selection Committee not to recommend the extension of tenure of the respondent. The decision taken by the Selection Committee was duly approved by the Chief Justice of India.10. The High Court committed an error in holding that the recommendation made by the Selection Committee to carry forward the vacancies to year 2017 was set aside by the High Court, in its earlier order dated 08.05.2019. The reason given for such conclusion is that the letter dated 12.04.2017 by which DoPT informed the Chairman of the Central Administrative Tribunal that the said vacancies of 2016 will be filled up along with the vacancies for the year 2017 was set aside. A close scrutiny of the judgment dated 08.05.2019 would show that the direction of the High Court was that the ACC should pass an order in accordance with Rule 9(4) of the 2011 Rules pursuant to the recommendations made by the Selection Committee and approved by the Chief Justice of India. Setting aside the order dated 12.04.2017 cannot be understood as the recommendation of the Selection Committee being set aside.11. The ACC did not take any decision contrary to the recommendation made by the Selection Committee which was approved by the Chief Justice of India. Pursuant to the direction issued by the High Court on 08.05.2019, the order passed on 11.10.2019 by the ACC is neither contrary to the recommendation made by the Selection Committee nor in violation of the directions issued by the High Court. | 1 | 2,174 | 488 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
with Rule 9(4) of the 2011 Rules. The High Court found fault with the decision of the ACC as it was contrary to the recommendations made by the Selection Committee which was approved by the Chief Justice of India. The High Court allowed the writ petition and directed the ACC to take a decision afresh for the grant of extension of the respondents term of appointment as Judicial Member of the Central Administrative Tribunal. 7. On behalf of the appellants, Mr. Sanjay Jain, learned Additional Solicitor General, submitted that the High Court committed an error in holding that the recommendation made by the Selection Committee for carrying forward the vacancies to the next year i.e. 2017, stood set aside by the judgment of the High Court dated 08.05.2019. According to learned ASG, after the recommendation was made by the Selection Committee to the competent authority, the additional material which came to the notice of the authorities was placed before the Selection Committee. Pursuant thereto, the Selection Committee decided that the vacancies which were to be filled up by the appointment of the respondent and Shri A.K. Bhardwaj should be carried forward to the next year i.e. 2017. The said recommendation of the Selection Committee was approved by the Chief Justice of India. It was further argued by Mr. Jain that the High Court, by a judgment dated 08.05.2019, only directed the competent authority to pass an order in accordance with Rule 9(4) of the 2011 Rules. It was contended on behalf of the appellants, that a suitable order in terms of the recommendations made by the Selection Committee which was approved by the Chief Justice of India was passed. 8. Mr. Pradeep Kant, learned senior counsel appearing on behalf of the respondent, stated that the recommendations made by the Selection Committee to extend the tenure of the respondent has to be complied with by the competent authority. However, the competent authority taking into account certain inputs given by DoPT referred the request of the respondent for extension of term of appointment to the Selection Committee. The request that was made by ACC to the Selection Committee relates only to carrying forward the vacancies of 2016 to the next year which was approved by the Selection Committee. The said approval does not amount to rejection of the respondents request for extension of his tenure for another term. It was submitted on behalf of the respondent that the judgement of the High Court dated 08.05.2019, set aside the proceedings dated 06.03.2017 by which the ACC had returned the proposal for extension of term of appointment of the respondent and the letter dated 12.04.2017 by which the Chairman, Central Administrative Tribunal was informed about the rejection of extension of tenure of the respondent was also set aside. Learned senior counsel appearing for the respondent, supported the impugned judgment by arguing that the High Court, in its judgement dated 08.05.2019, had already considered the complaints that were made against the respondent which was the basis for the rejection of the respondents request for extension of his term. The High Court, in its judgment dated 08.05.2019, observed that there was nothing adverse against the respondent on the basis of which the request for extension could be rejected. 9. The facts of this case are not in dispute. Initially, the Selection Committee headed by a sitting Judge of this Court recommended the extension of the respondent as Judicial Member of the Central Administrative Tribunal for another term. The said recommendation was approved by the Chief Justice of India. Thereafter, additional material surfaced which was placed before the Selection Committee by the Competent Authority for seeking review of the earlier decision. We have carefully examined the original record. It is clear from the record that the Selection Committee recorded that the ACC had returned the proposal for extension of the tenure of the respondent after taking a decision not to fill up the vacancies by extending the term of the respondent and Shri A.K. Bhardwaj. It was recommended by the Selection Committee to carry forward the said vacancies to the year 2017. Therefore, we are not in agreement with the contention of the respondent that the recommendation made by the Selection Committee to carry forward the 2016 vacancies to year 2017 does not amount to rejection of the request of the respondent for extension of his term as Judicial Member of the Central Administrative Tribunal. There cannot be any manner of doubt that a conscious decision was taken by the Selection Committee not to recommend the extension of tenure of the respondent. The decision taken by the Selection Committee was duly approved by the Chief Justice of India. 10. The High Court committed an error in holding that the recommendation made by the Selection Committee to carry forward the vacancies to year 2017 was set aside by the High Court, in its earlier order dated 08.05.2019. The reason given for such conclusion is that the letter dated 12.04.2017 by which DoPT informed the Chairman of the Central Administrative Tribunal that the said vacancies of 2016 will be filled up along with the vacancies for the year 2017 was set aside. A close scrutiny of the judgment dated 08.05.2019 would show that the direction of the High Court was that the ACC should pass an order in accordance with Rule 9(4) of the 2011 Rules pursuant to the recommendations made by the Selection Committee and approved by the Chief Justice of India. Setting aside the order dated 12.04.2017 cannot be understood as the recommendation of the Selection Committee being set aside. 11. The ACC did not take any decision contrary to the recommendation made by the Selection Committee which was approved by the Chief Justice of India. Pursuant to the direction issued by the High Court on 08.05.2019, the order passed on 11.10.2019 by the ACC is neither contrary to the recommendation made by the Selection Committee nor in violation of the directions issued by the High Court.
### Response:
1
### Explanation:
9. The facts of this case are not in dispute. Initially, the Selection Committee headed by a sitting Judge of this Court recommended the extension of the respondent as Judicial Member of the Central Administrative Tribunal for another term. The said recommendation was approved by the Chief Justice of India. Thereafter, additional material surfaced which was placed before the Selection Committee by the Competent Authority for seeking review of the earlier decision. We have carefully examined the original record. It is clear from the record that the Selection Committee recorded that the ACC had returned the proposal for extension of the tenure of the respondent after taking a decision not to fill up the vacancies by extending the term of the respondent and Shri A.K. Bhardwaj. It was recommended by the Selection Committee to carry forward the said vacancies to the year 2017. Therefore, we are not in agreement with the contention of the respondent that the recommendation made by the Selection Committee to carry forward the 2016 vacancies to year 2017 does not amount to rejection of the request of the respondent for extension of his term as Judicial Member of the Central Administrative Tribunal. There cannot be any manner of doubt that a conscious decision was taken by the Selection Committee not to recommend the extension of tenure of the respondent. The decision taken by the Selection Committee was duly approved by the Chief Justice of India.10. The High Court committed an error in holding that the recommendation made by the Selection Committee to carry forward the vacancies to year 2017 was set aside by the High Court, in its earlier order dated 08.05.2019. The reason given for such conclusion is that the letter dated 12.04.2017 by which DoPT informed the Chairman of the Central Administrative Tribunal that the said vacancies of 2016 will be filled up along with the vacancies for the year 2017 was set aside. A close scrutiny of the judgment dated 08.05.2019 would show that the direction of the High Court was that the ACC should pass an order in accordance with Rule 9(4) of the 2011 Rules pursuant to the recommendations made by the Selection Committee and approved by the Chief Justice of India. Setting aside the order dated 12.04.2017 cannot be understood as the recommendation of the Selection Committee being set aside.11. The ACC did not take any decision contrary to the recommendation made by the Selection Committee which was approved by the Chief Justice of India. Pursuant to the direction issued by the High Court on 08.05.2019, the order passed on 11.10.2019 by the ACC is neither contrary to the recommendation made by the Selection Committee nor in violation of the directions issued by the High Court.
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Mumbai International Airport Pvt. Ltd Vs. Regency Convention Centra & Hotels | specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that `D has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party. 13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party. 14. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent -plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute. 15. Learned counsel for the appellants contended that in view of section 12A of the Act when AAI granted a lease of the premises of an airport, to carry out any of its functions enumerated in section 12 of the said Act, the lessee who has been so assigned any function of AAI, shall have the powers of AAI, necessary for the performance of such functions in terms of the lease. Learned counsel for the appellant submitted that in view of this provision, it should be deemed that the appellant has stepped into the shoes of AAI so far as the Airport premises are concerned. This contention has no merit. The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to it. 16. Learned counsel for the appellant contended that Mumbai airport being one of the premier airports in India with a very high and ever increasing passenger traffic, needs to modernise and develop every inch of the airport land; that the suit land was a part of the airport land and that for the pendency of first respondents suit within an interim order, AAI would have included the suit land also in the lease in its favour. It was submitted that therefore a note was made in the lease that the land measuring 31000 sq.m. was not being made a part of the lease but may become part of the demised premises subject to the court verdict. This does not in any way help the appellant to claim a right to be impleaded. If the interim order in the suit filed by the first respondent came in the way of granting the lease of the suit land, it is clear that the suit land was not leased to appellant. The fact that if AAI succeeded in the suit, the suit land may also be leased to the appellant is not sufficient to hold that the appellant has any right, interest or a semblance of right or interest in the suit property. When appellant is neither claiming any right or remedy against the first respondent and when first respondent is not claiming any right or remedy against the appellant, in a suit for specific performance by the first respondent against AAI, the appellant cannot be a party. The allegation that the land is crucial for a premier airport or in public interest, are not relevant to the issue. | 0[ds]11. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [1992 (2) SCC 524 ] and Anil Kumar Singh v. Shivnath Mishra [1995 (3) SCC 147 ] also explain in what circumstances persons may be added as parties13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party14. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent -plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in disputeThis contention has no merit. The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to itThis does not in any way help the appellant to claim a right to be impleaded. If the interim order in the suit filed by the first respondent came in the way of granting the lease of the suit land, it is clear that the suit land was not leased to appellant. The fact that if AAI succeeded in the suit, the suit land may also be leased to the appellant is not sufficient to hold that the appellant has any right, interest or a semblance of right or interest in the suit property. When appellant is neither claiming any right or remedy against the first respondent and when first respondent is not claiming any right or remedy against the appellant, in a suit for specific performance by the first respondent against AAI, the appellant cannot be a party. The allegation that the land is crucial for a premier airport or in public interest, are not relevant to the issue. | 0 | 4,876 | 791 | ### 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:
specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that `D has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party. 13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party. 14. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent -plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute. 15. Learned counsel for the appellants contended that in view of section 12A of the Act when AAI granted a lease of the premises of an airport, to carry out any of its functions enumerated in section 12 of the said Act, the lessee who has been so assigned any function of AAI, shall have the powers of AAI, necessary for the performance of such functions in terms of the lease. Learned counsel for the appellant submitted that in view of this provision, it should be deemed that the appellant has stepped into the shoes of AAI so far as the Airport premises are concerned. This contention has no merit. The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to it. 16. Learned counsel for the appellant contended that Mumbai airport being one of the premier airports in India with a very high and ever increasing passenger traffic, needs to modernise and develop every inch of the airport land; that the suit land was a part of the airport land and that for the pendency of first respondents suit within an interim order, AAI would have included the suit land also in the lease in its favour. It was submitted that therefore a note was made in the lease that the land measuring 31000 sq.m. was not being made a part of the lease but may become part of the demised premises subject to the court verdict. This does not in any way help the appellant to claim a right to be impleaded. If the interim order in the suit filed by the first respondent came in the way of granting the lease of the suit land, it is clear that the suit land was not leased to appellant. The fact that if AAI succeeded in the suit, the suit land may also be leased to the appellant is not sufficient to hold that the appellant has any right, interest or a semblance of right or interest in the suit property. When appellant is neither claiming any right or remedy against the first respondent and when first respondent is not claiming any right or remedy against the appellant, in a suit for specific performance by the first respondent against AAI, the appellant cannot be a party. The allegation that the land is crucial for a premier airport or in public interest, are not relevant to the issue.
### Response:
0
### Explanation:
11. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [1992 (2) SCC 524 ] and Anil Kumar Singh v. Shivnath Mishra [1995 (3) SCC 147 ] also explain in what circumstances persons may be added as parties13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party14. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent -plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in disputeThis contention has no merit. The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to itThis does not in any way help the appellant to claim a right to be impleaded. If the interim order in the suit filed by the first respondent came in the way of granting the lease of the suit land, it is clear that the suit land was not leased to appellant. The fact that if AAI succeeded in the suit, the suit land may also be leased to the appellant is not sufficient to hold that the appellant has any right, interest or a semblance of right or interest in the suit property. When appellant is neither claiming any right or remedy against the first respondent and when first respondent is not claiming any right or remedy against the appellant, in a suit for specific performance by the first respondent against AAI, the appellant cannot be a party. The allegation that the land is crucial for a premier airport or in public interest, are not relevant to the issue.
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Garware Nylons Ltd Vs. Pimpri Chinchwad Mahanagar Palika And Ors | 1. The question that arises for consideration in this appeal is whether the customs duty paid by the appellant could be included for determining valuation for purposes of charging octroi under Rule 17(a) of the Maharashtra Municipalities (Octroi) Rules, 1968 made under sub-section (2) of Section 321 read with proviso to sub-section (1) of Section 105 of the Maharashtra Municipalities Act, 1965. 2. The appellant is a public limited company. It manufactured nylon and polyester yarn. Between September 1983 and August 1984 it imported goods liable to octroi. The Corporation authorities claimed that the appellant was liable to include the customs duty paid by it in the valuation of the goods as it was a competent of the value of the said goods for the purpose of Rule 17(a). The appeal filed by the appellant before the Civil Judge failed. The order was challenged by way of writ petition under Article 226 of the Constitution. The High Court negatived the claim. Rule 17(a) is extracted below "17. Provisions to determine value where octroi is leviable ad valorem. - (a) If the original invoice is produced by the importer and accepted by the Octroi Officer the value of the goods means the value made up of the cost price of the goods as ascertained from that invoice plus freight charges, carrier charges, shipping dues, insurance, excise duties, sales tax, vend fee and all other incidental charges incurred by the importer till the arrival of the goods within the octroi limits." * Since the words "customs duty" are not mentioned in the rule, it gave rise to an argument before the High Court and in this Court whether it could be included while determining the value under Rule 17. The High Court relying basically on the decision of this Court in Shroff & Co. v. Municipal Corpn. of Greater Bombay held that even though the customs duty was not mentioned in the rule yet it was liable to be included while determining the value under Rule 17. The learned counsel for the appellant urged that since the words "customs duty" do not find place in Rule 17, they could not be included for determining valuation under the rule. Reliance was also placed on Goodyear India Ltd. v. State of Haryana and McDowell & Co. Ltd. v. CTO and it was urged in the case the provisions in taxing statute was susceptible to two constructions, then the one favouring the assessee should be accepted. 3. In Shroff case it was held by this Court that countervailing duty being imposed for the purpose of compensating excise duty, it was includible in the expression duty. The Court further held that expression incidental used in the rule expanded its ambit and extended it to such duty that was an incident of importation. It was explained that the words "incidental charges" have a very wide meaning, particularly in the context where duties and taxes are referred to and the idea seems to be to include all items that will be taken into account by an importer as part of his cost. 4. Rule 17 provides for determination of value of goods brought inside the Corporation or Municipal Board for consumption, use or sale. The use of various words in the rule widens its scope. It provides for inclusion of cost price, charges such as freight, carrier, customs duties and then all other incidental charges, dues etc. The mention of various charges and duties is more illustrative than exhaustive. It only indicates that it is not only the expenses which are usually incurred in normal course of commercial activity, but any incidental expenditure shall constitute the value of goods. The rule has to be understood in broad sense. No goods can be imported from outside without payment of customs duty unless it is exempt. There appears to be no reason to exclude it while determining the value of the goods. In any case, if duty countervailing could be considered to be incidental charges for importation, there is no valid reason to exclude customs duty from it. | 0[ds]3. In Shroff case it was held by this Court that countervailing duty being imposed for the purpose of compensating excise duty, it was includible in the expression duty. The Court further held that expression incidental used in the rule expanded its ambit and extended it to such duty that was an incident of importation. It was explained that the words "incidental charges" have a very wide meaning, particularly in the context where duties and taxes are referred to and the idea seems to be to include all items that will be taken into account by an importer as part of hisRule 17 provides for determination of value of goods brought inside the Corporation or Municipal Board for consumption, use or sale. The use of various words in the rule widens its scope. It provides for inclusion of cost price, charges such as freight, carrier, customs duties and then all other incidental charges, dues etc. The mention of various charges and duties is more illustrative than exhaustive. It only indicates that it is not only the expenses which are usually incurred in normal course of commercial activity, but any incidental expenditure shall constitute the value of goods. The rule has to be understood in broad sense. No goods can be imported from outside without payment of customs duty unless it is exempt. There appears to be no reason to exclude it while determining the value of the goods. In any case, if duty countervailing could be considered to be incidental charges for importation, there is no valid reason to exclude customs duty from it | 0 | 756 | 291 | ### 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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1. The question that arises for consideration in this appeal is whether the customs duty paid by the appellant could be included for determining valuation for purposes of charging octroi under Rule 17(a) of the Maharashtra Municipalities (Octroi) Rules, 1968 made under sub-section (2) of Section 321 read with proviso to sub-section (1) of Section 105 of the Maharashtra Municipalities Act, 1965. 2. The appellant is a public limited company. It manufactured nylon and polyester yarn. Between September 1983 and August 1984 it imported goods liable to octroi. The Corporation authorities claimed that the appellant was liable to include the customs duty paid by it in the valuation of the goods as it was a competent of the value of the said goods for the purpose of Rule 17(a). The appeal filed by the appellant before the Civil Judge failed. The order was challenged by way of writ petition under Article 226 of the Constitution. The High Court negatived the claim. Rule 17(a) is extracted below "17. Provisions to determine value where octroi is leviable ad valorem. - (a) If the original invoice is produced by the importer and accepted by the Octroi Officer the value of the goods means the value made up of the cost price of the goods as ascertained from that invoice plus freight charges, carrier charges, shipping dues, insurance, excise duties, sales tax, vend fee and all other incidental charges incurred by the importer till the arrival of the goods within the octroi limits." * Since the words "customs duty" are not mentioned in the rule, it gave rise to an argument before the High Court and in this Court whether it could be included while determining the value under Rule 17. The High Court relying basically on the decision of this Court in Shroff & Co. v. Municipal Corpn. of Greater Bombay held that even though the customs duty was not mentioned in the rule yet it was liable to be included while determining the value under Rule 17. The learned counsel for the appellant urged that since the words "customs duty" do not find place in Rule 17, they could not be included for determining valuation under the rule. Reliance was also placed on Goodyear India Ltd. v. State of Haryana and McDowell & Co. Ltd. v. CTO and it was urged in the case the provisions in taxing statute was susceptible to two constructions, then the one favouring the assessee should be accepted. 3. In Shroff case it was held by this Court that countervailing duty being imposed for the purpose of compensating excise duty, it was includible in the expression duty. The Court further held that expression incidental used in the rule expanded its ambit and extended it to such duty that was an incident of importation. It was explained that the words "incidental charges" have a very wide meaning, particularly in the context where duties and taxes are referred to and the idea seems to be to include all items that will be taken into account by an importer as part of his cost. 4. Rule 17 provides for determination of value of goods brought inside the Corporation or Municipal Board for consumption, use or sale. The use of various words in the rule widens its scope. It provides for inclusion of cost price, charges such as freight, carrier, customs duties and then all other incidental charges, dues etc. The mention of various charges and duties is more illustrative than exhaustive. It only indicates that it is not only the expenses which are usually incurred in normal course of commercial activity, but any incidental expenditure shall constitute the value of goods. The rule has to be understood in broad sense. No goods can be imported from outside without payment of customs duty unless it is exempt. There appears to be no reason to exclude it while determining the value of the goods. In any case, if duty countervailing could be considered to be incidental charges for importation, there is no valid reason to exclude customs duty from it.
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3. In Shroff case it was held by this Court that countervailing duty being imposed for the purpose of compensating excise duty, it was includible in the expression duty. The Court further held that expression incidental used in the rule expanded its ambit and extended it to such duty that was an incident of importation. It was explained that the words "incidental charges" have a very wide meaning, particularly in the context where duties and taxes are referred to and the idea seems to be to include all items that will be taken into account by an importer as part of hisRule 17 provides for determination of value of goods brought inside the Corporation or Municipal Board for consumption, use or sale. The use of various words in the rule widens its scope. It provides for inclusion of cost price, charges such as freight, carrier, customs duties and then all other incidental charges, dues etc. The mention of various charges and duties is more illustrative than exhaustive. It only indicates that it is not only the expenses which are usually incurred in normal course of commercial activity, but any incidental expenditure shall constitute the value of goods. The rule has to be understood in broad sense. No goods can be imported from outside without payment of customs duty unless it is exempt. There appears to be no reason to exclude it while determining the value of the goods. In any case, if duty countervailing could be considered to be incidental charges for importation, there is no valid reason to exclude customs duty from it
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Shah & Co., Bombay Vs. The State Of Maharashtra & Anr | of the Requisition Act. Therefore, the contention of the learned counsel for the petitioner, that the transfer or assignment of tenancy rights, contemplated under Explanation (a) to S. 6 of the Requisition Act, must be understood in a limited manner, in the sense that they deal with prohibited assignments, under the Rent Act, cannot be accepted. The first contention, of the learned counsel, for the petitioner, will have, therefore, to be rejected. 27. Then, the second question as to whether the Requisition Act is constitutionally invalid, as affecting the rights of the petitioners, under Art. 19 (1) (f) or (g), will have to be considered. This involves consideration from two points of view, viz., as to whether the Requisition Act deals with property, in which case the attack based upon Art. 19 (1) (f), will have to be considered, or, as to whether the Requisition Act deals with trade or business, so as to attract Art. 19 (l) (g). So far as this is concerned, after a perusal of the entire provisions of the Requisition Act, we are satisfied that the said Act deals only with property and not with trade or business. We have already dealt with the main features of the Requisition Act and it will be clearly seen that it deals only with property. Therefore, the Requisition Act, does not deal with trade, or business, as such, and hence, the constitutionality of that Act, having regard to Art. 19 (1) (g), does not arise for consideration. But, it may be that an order of requisition passed by the respondents, may interfere with the right of a party to do business. That is an aspect, which will be considered later, after dealing with the contention of the petitioner that the Requisition Act contravenes Art. 19 (1) (f) and is not saved by Art. 19 (5). 28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, and that decision is made conclusive and placed beyond the pale of judicial review under the proviso to S. 6 (4); there is no machinery provided in the Act for redress or for correcting any errors, in respect of adverse orders passed by the authority; there is no legal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is no obligation on the authorities to give reasons for passing a particular order. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review. 29. In this connection, we have also been referred to certain decisions of this Court, where it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do not think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners. 30. Counsel for the respondents, Mr. Bindra, contested the claim of the petitioners, of violation of Art. 19 (1) (f) of the Constitution, on two grounds viz., (a) that the assignment relied on, by the petitioners is only a colourable device for really obtaining a transfer of tenancy rights, which is prohibited by S. 15 (1) of the Rent Act, and hence it is not saved by clause 2 of the Notification; and (b) inasmuch as the Requisition Act is governed by Art. 31 (2) of the Constitution, in view of the decision of this Court in Sitabati Devi v. State of West Bengal Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) the Act cannot be tested by reference to Art. 19 (1) (f) of the Constitution. But Mr. Sorabji, learned counsel for the petitioners, urged that the transaction satisfies the requirements of clause 2 of the Notification and the said decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) does not apply; in case that decision applies, counsel urged for a reconsideration of that decision. 31. From the various averments, contained In the counter-affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948, we are of the view that the assignment claimed by the petitioners must be regarded only as a colourable device, for really obtaining a transfer of tenancy rights, which is otherwise prohibited by S. 15 (1) of the Rent Act. We are further of the view that the transaction, in question, is not saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights or to carry on any business there, it follows that they cannot complain that any fundamental rights, under Art. 19(1) (f) or (g), of the Constitution, have been infringed. On this ground, this petition must fail. 32. In the view expressed above, it becomes unnecessary, in this case, to consider either the scope of the decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) or as to whether that decision requires reconsideration. | 0[ds]There are provisions relating to residential and other premises and hotels and lodging houses. It is, in that context, that S. 15 occurs, which prohibits a tenant to sub-let or transfer his rights, in the absence of a contract to the contrary. But certain types of assignment or transfer of tenancy rights can be permitted, under certain circumstances, by virtue of a notification issued by the State Government, under the proviso to S. 15 (1) of the Rent Act. But, if a transfer or assignment of a tenancy right does not come within the purview of assignments or transfers permitted by the notification issued by the State Government, a transfer or an assignment of a tenancy right will be illegal and unlawful, under S. 15 (1). Therefore, the fact that, in this case, the assignment claimed by the petitioner may come under Cl. (2) of the Notification, will only enable the petitioner to be in occupation of the premises under the Rent Act and the assignment of tenancy rights in his favour will not become illegal or unlawful, as it otherwise would, under S. 15 (1) of the Rent Act31. From the various averments, contained In the counter-affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948, we are of the view that the assignment claimed by the petitioners must be regarded only as a colourable device, for really obtaining a transfer of tenancy rights, which is otherwise prohibited by S. 15 (1) of the Rent Act. We are further of the view that the transaction, in question, is not saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights or to carry on any business there, it follows that they cannot complain that any fundamental rights, under Art. 19(1) (f) or (g), of the Constitution, have been infringed. On this ground, this petition must fail28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, and that decision is made conclusive and placed beyond the pale of judicial review under the proviso to S. 6 (4); there is no machinery provided in the Act for redress or for correcting any errors, in respect of adverse orders passed by the authority; there is no legal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is no obligation on the authorities to give reasons for passing a particular order. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review29. In this connection, we have also been referred to certain decisions of this Court, where it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do not think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners. | 0 | 7,799 | 765 | ### 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 the Requisition Act. Therefore, the contention of the learned counsel for the petitioner, that the transfer or assignment of tenancy rights, contemplated under Explanation (a) to S. 6 of the Requisition Act, must be understood in a limited manner, in the sense that they deal with prohibited assignments, under the Rent Act, cannot be accepted. The first contention, of the learned counsel, for the petitioner, will have, therefore, to be rejected. 27. Then, the second question as to whether the Requisition Act is constitutionally invalid, as affecting the rights of the petitioners, under Art. 19 (1) (f) or (g), will have to be considered. This involves consideration from two points of view, viz., as to whether the Requisition Act deals with property, in which case the attack based upon Art. 19 (1) (f), will have to be considered, or, as to whether the Requisition Act deals with trade or business, so as to attract Art. 19 (l) (g). So far as this is concerned, after a perusal of the entire provisions of the Requisition Act, we are satisfied that the said Act deals only with property and not with trade or business. We have already dealt with the main features of the Requisition Act and it will be clearly seen that it deals only with property. Therefore, the Requisition Act, does not deal with trade, or business, as such, and hence, the constitutionality of that Act, having regard to Art. 19 (1) (g), does not arise for consideration. But, it may be that an order of requisition passed by the respondents, may interfere with the right of a party to do business. That is an aspect, which will be considered later, after dealing with the contention of the petitioner that the Requisition Act contravenes Art. 19 (1) (f) and is not saved by Art. 19 (5). 28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, and that decision is made conclusive and placed beyond the pale of judicial review under the proviso to S. 6 (4); there is no machinery provided in the Act for redress or for correcting any errors, in respect of adverse orders passed by the authority; there is no legal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is no obligation on the authorities to give reasons for passing a particular order. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review. 29. In this connection, we have also been referred to certain decisions of this Court, where it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do not think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners. 30. Counsel for the respondents, Mr. Bindra, contested the claim of the petitioners, of violation of Art. 19 (1) (f) of the Constitution, on two grounds viz., (a) that the assignment relied on, by the petitioners is only a colourable device for really obtaining a transfer of tenancy rights, which is prohibited by S. 15 (1) of the Rent Act, and hence it is not saved by clause 2 of the Notification; and (b) inasmuch as the Requisition Act is governed by Art. 31 (2) of the Constitution, in view of the decision of this Court in Sitabati Devi v. State of West Bengal Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) the Act cannot be tested by reference to Art. 19 (1) (f) of the Constitution. But Mr. Sorabji, learned counsel for the petitioners, urged that the transaction satisfies the requirements of clause 2 of the Notification and the said decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) does not apply; in case that decision applies, counsel urged for a reconsideration of that decision. 31. From the various averments, contained In the counter-affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948, we are of the view that the assignment claimed by the petitioners must be regarded only as a colourable device, for really obtaining a transfer of tenancy rights, which is otherwise prohibited by S. 15 (1) of the Rent Act. We are further of the view that the transaction, in question, is not saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights or to carry on any business there, it follows that they cannot complain that any fundamental rights, under Art. 19(1) (f) or (g), of the Constitution, have been infringed. On this ground, this petition must fail. 32. In the view expressed above, it becomes unnecessary, in this case, to consider either the scope of the decision in Sitabati Devis Case, Civil Appeal No. 322 of 1961, D/- 1-12-1961 (SC) (unreported) or as to whether that decision requires reconsideration.
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### Explanation:
There are provisions relating to residential and other premises and hotels and lodging houses. It is, in that context, that S. 15 occurs, which prohibits a tenant to sub-let or transfer his rights, in the absence of a contract to the contrary. But certain types of assignment or transfer of tenancy rights can be permitted, under certain circumstances, by virtue of a notification issued by the State Government, under the proviso to S. 15 (1) of the Rent Act. But, if a transfer or assignment of a tenancy right does not come within the purview of assignments or transfers permitted by the notification issued by the State Government, a transfer or an assignment of a tenancy right will be illegal and unlawful, under S. 15 (1). Therefore, the fact that, in this case, the assignment claimed by the petitioner may come under Cl. (2) of the Notification, will only enable the petitioner to be in occupation of the premises under the Rent Act and the assignment of tenancy rights in his favour will not become illegal or unlawful, as it otherwise would, under S. 15 (1) of the Rent Act31. From the various averments, contained In the counter-affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948, we are of the view that the assignment claimed by the petitioners must be regarded only as a colourable device, for really obtaining a transfer of tenancy rights, which is otherwise prohibited by S. 15 (1) of the Rent Act. We are further of the view that the transaction, in question, is not saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights or to carry on any business there, it follows that they cannot complain that any fundamental rights, under Art. 19(1) (f) or (g), of the Constitution, have been infringed. On this ground, this petition must fail28. According to the petitioners the Act, considered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 (1) (f). From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, and that decision is made conclusive and placed beyond the pale of judicial review under the proviso to S. 6 (4); there is no machinery provided in the Act for redress or for correcting any errors, in respect of adverse orders passed by the authority; there is no legal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is no obligation on the authorities to give reasons for passing a particular order. From the substantive aspect, it is stressed that, as a fact, no vacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation (a) to S. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is no assignment as a fact and, such a decision is conclusive and not amenable for correction, by judicial review29. In this connection, we have also been referred to certain decisions of this Court, where it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do not think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners.
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Khushiram Behari Lal & Co Vs. Assessing Authority, Sangrur & Anr | KHANNA, J. 1. This is an appeal on certificate against the judgment of the Punjab and Haryana High Court whereby the High Court held that the appellant-firm had failed to prove that it had stood dissolved on a date prior to the date of assessment, viz., March 12, 1962.2. The appellant-firm carries on business as commission agents of cotton and food grains. In respect of the year 1959-60, the appellant did not submit any return under the Punjab General Sales Tax Act. A notice was thereupon issued to the appellant-firm and the case was fixed for July 1, 1960. The appellant challenged the validity of the assessment proceedings by means of a writ petition in the High Court. The High Court during the pendency of the petition, stayed the proceedings. Ultimately, it seems, the writ petition was dismissed and the assessment proceedings were resumed on November 30, 1961. Various dates were fixed thereafter. February 17, 1962 was fixed as the final date of hearing. On that date, intimation was given on behalf. of the appellant that the appellant-firm had ceased to do any work since February 1961. It was also represented that a formal document had been executed on August 8, 1961. The assessing authority despite that intimation proceeded to make an order of assessment dated March 12, 1962. The appellant thereupon filed another petition under article 226 of the Constitution in the Punjab High Court, praying for the quashing of the assessment order. It was stated on behalf of the appellant that the appellant-firm had been dissolved before the date of assessment order and as such, the sales tax authorities could not make an order for assessment. The High Court dismissed the petition on the ground that the assessment proceedings had been initiated long before the alleged date of dissolution of the firm. The appellant thereafter came up to this Court in appeal against the said decision of the High Court. This Court set aside the judgment of the High Court, following its decision in the case of State of Punjab v. M/s Jullundur Vegetables Syndicate.((1966) 2 S.C.n. 457.) The case was remanded to the High Court as no definite finding had been given by the High Court regarding the dissolution of the appellant-firm and about the fact as to whether the said dissolution had taken place before the date of the order of assessment, namely, March 12, 1962. After remand, the High Court called upon the sales tax officer to make an enquiry and submit a report on the point as to whether the appellant-firm had been dissolved on August 8, 1961 as alleged by the appellant. The sales tax officer thereafter made an enquiry and submitted a report that the appellant-firm had not proved its dissolution on August 8, 1961 or before the date of assessment order. The High Court, after receipt of the report, itself examined the matter and came to the conclusion that on the material on record brought by the appellant, it had not been proved that the appellant-firm had stood dissolved on a date prior to March 12, 1962. It is the correctness of the above decision of the High Court which has now been assailed be fore us by the appellant in this appeal. 3. We have heard Mr. Mahajan on behalf of the appellant and find no cogent ground to take a view different from that of the High Court. The High Court, in the course of its judgment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962. At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved. All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and that a formal document had been executed on August 8, 1961. It was also not the case. of the appellant that all the six partners of the appellant firm, had signed that document. Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolution of a firm within thirty days of such dissolution no such intimation was given by the appellant-firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution. In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt. upon the correctness of the statement made on behalf of the appellant-firm that it had stood dissolved on August 8, 1961. It has to be borne in mind that the High Court was dealing with the matter on the writ side. In a writ petition, the Scope for interference with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon no evidence or is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. We see no sufficient ground to interfere with the judgment of the High Court. 4. | 0[ds]The High Court, in the course of its judgment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962. At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved. All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and that a formal document had been executed on August 8, 1961. It was also not the case. of the appellant that all the six partners of the appellant firm, had signed that document. Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolution of a firm within thirty days of such dissolution no such intimation was given by the appellant-firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution. In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt. upon the correctness of the statement made on behalf of the appellant-firm that it had stood dissolved on August 8, 1961. It has to be borne in mind that the High Court was dealing with the matter on the writ side. In a writ petition, the Scope for interference with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon no evidence or is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. We see no sufficient ground to interfere with the judgment of the High Court. | 0 | 983 | 355 | ### 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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KHANNA, J. 1. This is an appeal on certificate against the judgment of the Punjab and Haryana High Court whereby the High Court held that the appellant-firm had failed to prove that it had stood dissolved on a date prior to the date of assessment, viz., March 12, 1962.2. The appellant-firm carries on business as commission agents of cotton and food grains. In respect of the year 1959-60, the appellant did not submit any return under the Punjab General Sales Tax Act. A notice was thereupon issued to the appellant-firm and the case was fixed for July 1, 1960. The appellant challenged the validity of the assessment proceedings by means of a writ petition in the High Court. The High Court during the pendency of the petition, stayed the proceedings. Ultimately, it seems, the writ petition was dismissed and the assessment proceedings were resumed on November 30, 1961. Various dates were fixed thereafter. February 17, 1962 was fixed as the final date of hearing. On that date, intimation was given on behalf. of the appellant that the appellant-firm had ceased to do any work since February 1961. It was also represented that a formal document had been executed on August 8, 1961. The assessing authority despite that intimation proceeded to make an order of assessment dated March 12, 1962. The appellant thereupon filed another petition under article 226 of the Constitution in the Punjab High Court, praying for the quashing of the assessment order. It was stated on behalf of the appellant that the appellant-firm had been dissolved before the date of assessment order and as such, the sales tax authorities could not make an order for assessment. The High Court dismissed the petition on the ground that the assessment proceedings had been initiated long before the alleged date of dissolution of the firm. The appellant thereafter came up to this Court in appeal against the said decision of the High Court. This Court set aside the judgment of the High Court, following its decision in the case of State of Punjab v. M/s Jullundur Vegetables Syndicate.((1966) 2 S.C.n. 457.) The case was remanded to the High Court as no definite finding had been given by the High Court regarding the dissolution of the appellant-firm and about the fact as to whether the said dissolution had taken place before the date of the order of assessment, namely, March 12, 1962. After remand, the High Court called upon the sales tax officer to make an enquiry and submit a report on the point as to whether the appellant-firm had been dissolved on August 8, 1961 as alleged by the appellant. The sales tax officer thereafter made an enquiry and submitted a report that the appellant-firm had not proved its dissolution on August 8, 1961 or before the date of assessment order. The High Court, after receipt of the report, itself examined the matter and came to the conclusion that on the material on record brought by the appellant, it had not been proved that the appellant-firm had stood dissolved on a date prior to March 12, 1962. It is the correctness of the above decision of the High Court which has now been assailed be fore us by the appellant in this appeal. 3. We have heard Mr. Mahajan on behalf of the appellant and find no cogent ground to take a view different from that of the High Court. The High Court, in the course of its judgment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962. At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved. All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and that a formal document had been executed on August 8, 1961. It was also not the case. of the appellant that all the six partners of the appellant firm, had signed that document. Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolution of a firm within thirty days of such dissolution no such intimation was given by the appellant-firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution. In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt. upon the correctness of the statement made on behalf of the appellant-firm that it had stood dissolved on August 8, 1961. It has to be borne in mind that the High Court was dealing with the matter on the writ side. In a writ petition, the Scope for interference with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon no evidence or is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. We see no sufficient ground to interfere with the judgment of the High Court. 4.
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0
### Explanation:
The High Court, in the course of its judgment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962. At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved. All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and that a formal document had been executed on August 8, 1961. It was also not the case. of the appellant that all the six partners of the appellant firm, had signed that document. Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolution of a firm within thirty days of such dissolution no such intimation was given by the appellant-firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution. In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt. upon the correctness of the statement made on behalf of the appellant-firm that it had stood dissolved on August 8, 1961. It has to be borne in mind that the High Court was dealing with the matter on the writ side. In a writ petition, the Scope for interference with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon no evidence or is based upon extraneous or irrelevant evidence or is otherwise perverse. The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case. We see no sufficient ground to interfere with the judgment of the High Court.
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Discount & Finance House of India Limited Vs. S.K. Bhardwaj & Others | 1991 which came into force from 1st October, 1991 that exclusionary Clause, which excluded interest on Government Securities, was deleted and therefore, the legislature intended to charge and levy interest tax on interest received from R.B.I. on dated Government Securities. We do not find any merit in this argument. In the case of C.I.T. v. Madurai Mills Co. Ltd., reported in 89 I.T.R. 45, a similar argument was advanced by the department. In that matter, the question which arose before the Supreme Court was whether capital gains stood attracted on distribution of assets of the companies in liquidation. It was held by the Supreme Court that distribution of assets of the companies in liquidation did not amount to transfer under section 12-B(1) of the Income Tax Act, 1922. One of the arguments advanced on behalf of the department was that prior to Finance No. 3 Act of 1956, there was a proviso in section 12B(1) of the Income Tax Act, 1922 which excluded such distribution of assets from the word "transfer" in section 12-B(1) of the Act. It was argued that after Finance No. 3 Act of 1956 that proviso was deleted and, therefore, the Parliament intended to levy tax on distribution of assets of the companies in liquidation. This argument was rejected by the Supreme Court. The Supreme Court held that the proviso to section 12-B (1) was introduced by the Parliament by way of abundant caution. It was clarificatory in nature. That, the main section 12-B(1) itself contemplated exclusion of capital gains from distribution of assets of the companies in liquidation and, therefore, deletion of the proviso had no effect on the main section 12-B(1). This judgment of the Supreme Court in Madurai Mills case (supra) squarely applies to the facts of the present case.In the present case, if one construes section 2(7) in the context of the object of the Act and the scheme of the Act, it is clear that the main section 2(7) applies only to loans and advances and not to the gross amount of interest received from R.B.I. on dated Government Securities and that deletion of the exclusionary clause by Finance Act of 1991 had no effect on section 2(7) as the exclusionary clause was only clarificatory in nature. Therefore, there is no merit in the argument advanced on behalf of the department. Moreover, section 2 is a definition section. It starts by the expression "In this Act, unless the context otherwise requires". Section 2(7) forms part of definition section. It defines the word "interest" to mean interest on loans and advances. Section 2(7) must be read with the expression "unless the context otherwise requires". Section 26-C provides evidence of the expression "unless the context otherwise requires". Therefore, section 26-C demolishes the argument of the department that the word "interest" means interest on Dated Government Securities. One has to read section 2(7) with section 26-C and, if so read, interest received from R.B.I. on Dated Government Securities will not fall within the meaning of the expression "interest on loans and advances" under section 2(7) of the Act. Accordingly, we hold that the department was not entitled to levy interest tax on Rs. 15,69,41,050 /- received from R.B.I. during the year 1993-94 on dated Government Securities as it would mean levy of tax indirectly on R.B.I. under section 26-C of the Act.6.One of the incidental points, which remains for consideration in this case is : Whether the Commissioner of Income Tax (Revisional Authority under section 20 of the Interest Tax Act) was right in rejecting the review application of the petitioner on the ground of non-maintainability. Under the impugned order, it has been held by the revisional authority that under section 20 of the Act, the revisional authority cannot allow the assessee to raise a claim for the first time, particularly when the assessee has offered the said amount of Rs. 15,69,41,050/- to tax. This finding of the revisional authority, in our view, is erroneous. In this case, the assessee has raised a question, which goes to the root of the matter. The point at issue before the revisional authority was not concerning a legality of the order of the A.O., but it was concerning lack of authority/jurisdiction. In our view, interest tax was not leviable on the interest received from R.B.I. on Dated Government Securities and consequently, the issue raised concerns lack of authority/ jurisdiction on the part of the A.O. under the Interest Tax Act to levy tax on such interest. Therefore, such an issue was entertainable under section 20 of the Interest Tax Act.7.Before concluding, we want to clarify one point. Petitioner subscribes to Dated Government Securities of R.B.I. It receives from R.B.I. half yearly interest on the coupon dates every year. The interest is paid twice in a year on the holding of the petitioner in the S.G.L. account with R.B.I. Our judgment applies only to the interest paid by R.B.I. to the petitioner on its holding the Dated Government Securities in the S.G.L. account with R.B.I. This clarification is required to be made because the petitioner also deals with dated Government Securities after subscribing to the same. In other words, after subscribing, the petitioner also sells Dated Government Securities under which activity, they earn interest as also profits which are shown as business income under the Income Tax Act. Our judgment, therefore, does not touch the interest received by the petitioner on sale of Dated Government Securities after they are subscribed to. It may be noted that, in this case, we are only concerned with interest received from R.B.I. by the petitioner on the Dated Government Securities held by it on the coupon date. Our judgment is not concerned with the interest earned on dated Government Securities which are traded by the petitioner with other institutions thereafter. Therefore, we have confined our judgment only to the amount of Rs. 15,69,41,050/- which the petitioner has received from R.B.I. as gross interest on dated Government Securities directly subscribed by the petitioner. | 1[ds]We are, therefore, required to examine the Act in the context of this argument. The Act came into force with effect fromIt continued to operate upto 31st March, 1978. It was dropped from0. It was revived from5. It was once again dropped from1. It was reintroduced with effect fromvide Finance No. 2 Act, 1991 and it continued to operate uptoThereafter, it has been dropped again. One has to ask a question as to why the Act has been operating intermittently. The object of the Act was to discourage borrowings by increasing the cost of borrowings. This was in 1974. The other object was to increase the revenue. During the period2, interest rates in India were administered centrally. However, afterinterest rates have been freed and they are fixed by market forces of demand and supply. After 1992, one of the biggest market borrowers is the Government. Therefore, the Act has been operating intermittently depending upon the economy of thethe present case, if one construes section 2(7) in the context of the object of the Act and the scheme of the Act, it is clear that the main section 2(7) applies only to loans and advances and not to the gross amount of interest received from R.B.I. on dated Government Securities and that deletion of the exclusionary clause by Finance Act of 1991 had no effect on section 2(7) as the exclusionary clause was only clarificatory in nature. Therefore, there is no merit in the argument advanced on behalf of the department. Moreover, section 2 is a definition section. It starts by the expression "In this Act, unless the context otherwise requires". Section 2(7) forms part of definition section. It defines the word "interest" to mean interest on loans and advances. Section 2(7) must be read with the expression "unless the context otherwise requires". Sectionprovides evidence of the expression "unless the context otherwise requires". Therefore, sectiondemolishes the argument of the department that the word "interest" means interest on Dated Government Securities. One has to read section 2(7) with sectionand, if so read, interest received from R.B.I. on Dated Government Securities will not fall within the meaning of the expression "interest on loans and advances" under section 2(7) of the Act. Accordingly, we hold that the department was not entitled to levy interest tax on Rs. 15,69,41,050 /received from R.B.I. during the yearon dated Government Securities as it would mean levy of tax indirectly on R.B.I. under sectionder the impugned order, it has been held by the revisional authority that under section 20 of the Act, the revisional authority cannot allow the assessee to raise a claim for the first time, particularly when the assessee has offered the said amount of Rs. 15,69,41,050/to tax. This finding of the revisional authority, in our view, is erroneous. In this case, the assessee has raised a question, which goes to the root of the matter. The point at issue before the revisional authority was not concerning a legality of the order of the A.O., but it was concerning lack of authority/jurisdiction. In our view, interest tax was not leviable on the interest received from R.B.I. on Dated Government Securities and consequently, the issue raised concerns lack of authority/ jurisdiction on the part of the A.O. under the Interest Tax Act to levy tax on such interest. Therefore, such an issue was entertainable under section 20 of the Interest Tax Act.7.Before concluding, we want to clarify one point. Petitioner subscribes to Dated Government Securities of R.B.I. It receives from R.B.I. half yearly interest on the coupon dates every year. The interest is paid twice in a year on the holding of the petitioner in the S.G.L. account with R.B.I. Our judgment applies only to the interest paid by R.B.I. to the petitioner on its holding the Dated Government Securities in the S.G.L. account with R.B.I. This clarification is required to be made because the petitioner also deals with dated Government Securities after subscribing to the same. In other words, after subscribing, the petitioner also sells Dated Government Securities under which activity, they earn interest as also profits which are shown as business income under the Income Tax Act. Our judgment, therefore, does not touch the interest received by the petitioner on sale of Dated Government Securities after they are subscribed to. It may be noted that, in this case, we are only concerned with interest received from R.B.I. by the petitioner on the Dated Government Securities held by it on the coupon date. Our judgment is not concerned with the interest earned on dated Government Securities which are traded by the petitioner with other institutions thereafter. Therefore, we have confined our judgment only to the amount of Rs. 15,69,41,050/which the petitioner has received from R.B.I. as gross interest on dated Government Securities directly subscribed by the petitioner. | 1 | 4,559 | 931 | ### 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:
1991 which came into force from 1st October, 1991 that exclusionary Clause, which excluded interest on Government Securities, was deleted and therefore, the legislature intended to charge and levy interest tax on interest received from R.B.I. on dated Government Securities. We do not find any merit in this argument. In the case of C.I.T. v. Madurai Mills Co. Ltd., reported in 89 I.T.R. 45, a similar argument was advanced by the department. In that matter, the question which arose before the Supreme Court was whether capital gains stood attracted on distribution of assets of the companies in liquidation. It was held by the Supreme Court that distribution of assets of the companies in liquidation did not amount to transfer under section 12-B(1) of the Income Tax Act, 1922. One of the arguments advanced on behalf of the department was that prior to Finance No. 3 Act of 1956, there was a proviso in section 12B(1) of the Income Tax Act, 1922 which excluded such distribution of assets from the word "transfer" in section 12-B(1) of the Act. It was argued that after Finance No. 3 Act of 1956 that proviso was deleted and, therefore, the Parliament intended to levy tax on distribution of assets of the companies in liquidation. This argument was rejected by the Supreme Court. The Supreme Court held that the proviso to section 12-B (1) was introduced by the Parliament by way of abundant caution. It was clarificatory in nature. That, the main section 12-B(1) itself contemplated exclusion of capital gains from distribution of assets of the companies in liquidation and, therefore, deletion of the proviso had no effect on the main section 12-B(1). This judgment of the Supreme Court in Madurai Mills case (supra) squarely applies to the facts of the present case.In the present case, if one construes section 2(7) in the context of the object of the Act and the scheme of the Act, it is clear that the main section 2(7) applies only to loans and advances and not to the gross amount of interest received from R.B.I. on dated Government Securities and that deletion of the exclusionary clause by Finance Act of 1991 had no effect on section 2(7) as the exclusionary clause was only clarificatory in nature. Therefore, there is no merit in the argument advanced on behalf of the department. Moreover, section 2 is a definition section. It starts by the expression "In this Act, unless the context otherwise requires". Section 2(7) forms part of definition section. It defines the word "interest" to mean interest on loans and advances. Section 2(7) must be read with the expression "unless the context otherwise requires". Section 26-C provides evidence of the expression "unless the context otherwise requires". Therefore, section 26-C demolishes the argument of the department that the word "interest" means interest on Dated Government Securities. One has to read section 2(7) with section 26-C and, if so read, interest received from R.B.I. on Dated Government Securities will not fall within the meaning of the expression "interest on loans and advances" under section 2(7) of the Act. Accordingly, we hold that the department was not entitled to levy interest tax on Rs. 15,69,41,050 /- received from R.B.I. during the year 1993-94 on dated Government Securities as it would mean levy of tax indirectly on R.B.I. under section 26-C of the Act.6.One of the incidental points, which remains for consideration in this case is : Whether the Commissioner of Income Tax (Revisional Authority under section 20 of the Interest Tax Act) was right in rejecting the review application of the petitioner on the ground of non-maintainability. Under the impugned order, it has been held by the revisional authority that under section 20 of the Act, the revisional authority cannot allow the assessee to raise a claim for the first time, particularly when the assessee has offered the said amount of Rs. 15,69,41,050/- to tax. This finding of the revisional authority, in our view, is erroneous. In this case, the assessee has raised a question, which goes to the root of the matter. The point at issue before the revisional authority was not concerning a legality of the order of the A.O., but it was concerning lack of authority/jurisdiction. In our view, interest tax was not leviable on the interest received from R.B.I. on Dated Government Securities and consequently, the issue raised concerns lack of authority/ jurisdiction on the part of the A.O. under the Interest Tax Act to levy tax on such interest. Therefore, such an issue was entertainable under section 20 of the Interest Tax Act.7.Before concluding, we want to clarify one point. Petitioner subscribes to Dated Government Securities of R.B.I. It receives from R.B.I. half yearly interest on the coupon dates every year. The interest is paid twice in a year on the holding of the petitioner in the S.G.L. account with R.B.I. Our judgment applies only to the interest paid by R.B.I. to the petitioner on its holding the Dated Government Securities in the S.G.L. account with R.B.I. This clarification is required to be made because the petitioner also deals with dated Government Securities after subscribing to the same. In other words, after subscribing, the petitioner also sells Dated Government Securities under which activity, they earn interest as also profits which are shown as business income under the Income Tax Act. Our judgment, therefore, does not touch the interest received by the petitioner on sale of Dated Government Securities after they are subscribed to. It may be noted that, in this case, we are only concerned with interest received from R.B.I. by the petitioner on the Dated Government Securities held by it on the coupon date. Our judgment is not concerned with the interest earned on dated Government Securities which are traded by the petitioner with other institutions thereafter. Therefore, we have confined our judgment only to the amount of Rs. 15,69,41,050/- which the petitioner has received from R.B.I. as gross interest on dated Government Securities directly subscribed by the petitioner.
### Response:
1
### Explanation:
We are, therefore, required to examine the Act in the context of this argument. The Act came into force with effect fromIt continued to operate upto 31st March, 1978. It was dropped from0. It was revived from5. It was once again dropped from1. It was reintroduced with effect fromvide Finance No. 2 Act, 1991 and it continued to operate uptoThereafter, it has been dropped again. One has to ask a question as to why the Act has been operating intermittently. The object of the Act was to discourage borrowings by increasing the cost of borrowings. This was in 1974. The other object was to increase the revenue. During the period2, interest rates in India were administered centrally. However, afterinterest rates have been freed and they are fixed by market forces of demand and supply. After 1992, one of the biggest market borrowers is the Government. Therefore, the Act has been operating intermittently depending upon the economy of thethe present case, if one construes section 2(7) in the context of the object of the Act and the scheme of the Act, it is clear that the main section 2(7) applies only to loans and advances and not to the gross amount of interest received from R.B.I. on dated Government Securities and that deletion of the exclusionary clause by Finance Act of 1991 had no effect on section 2(7) as the exclusionary clause was only clarificatory in nature. Therefore, there is no merit in the argument advanced on behalf of the department. Moreover, section 2 is a definition section. It starts by the expression "In this Act, unless the context otherwise requires". Section 2(7) forms part of definition section. It defines the word "interest" to mean interest on loans and advances. Section 2(7) must be read with the expression "unless the context otherwise requires". Sectionprovides evidence of the expression "unless the context otherwise requires". Therefore, sectiondemolishes the argument of the department that the word "interest" means interest on Dated Government Securities. One has to read section 2(7) with sectionand, if so read, interest received from R.B.I. on Dated Government Securities will not fall within the meaning of the expression "interest on loans and advances" under section 2(7) of the Act. Accordingly, we hold that the department was not entitled to levy interest tax on Rs. 15,69,41,050 /received from R.B.I. during the yearon dated Government Securities as it would mean levy of tax indirectly on R.B.I. under sectionder the impugned order, it has been held by the revisional authority that under section 20 of the Act, the revisional authority cannot allow the assessee to raise a claim for the first time, particularly when the assessee has offered the said amount of Rs. 15,69,41,050/to tax. This finding of the revisional authority, in our view, is erroneous. In this case, the assessee has raised a question, which goes to the root of the matter. The point at issue before the revisional authority was not concerning a legality of the order of the A.O., but it was concerning lack of authority/jurisdiction. In our view, interest tax was not leviable on the interest received from R.B.I. on Dated Government Securities and consequently, the issue raised concerns lack of authority/ jurisdiction on the part of the A.O. under the Interest Tax Act to levy tax on such interest. Therefore, such an issue was entertainable under section 20 of the Interest Tax Act.7.Before concluding, we want to clarify one point. Petitioner subscribes to Dated Government Securities of R.B.I. It receives from R.B.I. half yearly interest on the coupon dates every year. The interest is paid twice in a year on the holding of the petitioner in the S.G.L. account with R.B.I. Our judgment applies only to the interest paid by R.B.I. to the petitioner on its holding the Dated Government Securities in the S.G.L. account with R.B.I. This clarification is required to be made because the petitioner also deals with dated Government Securities after subscribing to the same. In other words, after subscribing, the petitioner also sells Dated Government Securities under which activity, they earn interest as also profits which are shown as business income under the Income Tax Act. Our judgment, therefore, does not touch the interest received by the petitioner on sale of Dated Government Securities after they are subscribed to. It may be noted that, in this case, we are only concerned with interest received from R.B.I. by the petitioner on the Dated Government Securities held by it on the coupon date. Our judgment is not concerned with the interest earned on dated Government Securities which are traded by the petitioner with other institutions thereafter. Therefore, we have confined our judgment only to the amount of Rs. 15,69,41,050/which the petitioner has received from R.B.I. as gross interest on dated Government Securities directly subscribed by the petitioner.
|
Mrinmayee Rohit Umrotkar Vs. Union of India and 4 Others | record and considered the rival contentions. 15. Consequent to the enactment of the Industrial Development Bank of India Act, 1964 (hereafter the IDBI Act, for short) and issuance of notification in terms of Section 3 thereof, the Industrial Development Bank of India (hereafter the Development Bank, for short) was brought into existence as a body corporate with effect from June 20, 1964. Section 26 of the IDBI Act provided for staff of the Development Bank. It was authorized to appoint such number of officers and employees as it considers necessary or desirable for the efficient performance of its functions and determine the terms and conditions of their appointment in service. 16. The Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003 (hereafter the 2003 Act, for short) was enacted by the Parliament to provide for transfer and vesting of undertaking of the Development Bank to and in the Company to be formed and registered as a Company under the Companies Act, 1956 (hereafter the 1956 Act, for short) to carry on banking business and for matters connected therewith or incidental thereto and also to repeal the IDBI Act. Section 3 of the 2003 Act provides that on and from the date the Central Government may, by notification, appoint, the undertaking of the Development Bank shall be transferred to, and vest in, the Company, meaning thereby the Industrial Development Bank of India Limited to be formed and registered under the 1956 Act. We find that from October 1, 2004, the undertaking of the Development Bank stood transferred to, and vested in, the Company in terms of Section 3(1) of the 2003 Act. 17. Section 5 of the 2003 Act contains provisions in respect of officers and other employees of IDBI Limited. Sub- section (1) thereof provides that every officer or other employee of the Development Bank (except a director of the Board or the chairman and managing director or any whole-time director) serving in the employment immediately before the appointed day shall, insofar as such officer or other employee is employed in connection with the undertaking which has vested in the Company by virtue of such Act, become, as from the appointed day, an officer or, as the case may be, other employee of the Company and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges in respect of matters mentioned therein and other benefits as he would have held under the Development Bank if its undertaking had not vested in the Company. 18. In our considered view, section 5 of the 2003 Act is crucial and clinches the issue against the petitioner and for the respondents. Perusal of the 2003 Act clearly reveals cessation of the Development Bank as a body corporate which, by operation of the said Act, would stand transferred to and vested in the Company to be formed and registered under the 1956 Act. The Development Bank, from a body corporate, by reason of the 2003 Act (which also repealed the IDBI Act) attained an identity of a Company governed by the 1956 Act. 19. Though „undertaking is a word of large import, it has to be read and understood in the context where it occurs. In the present context, a Government of India undertaking would mean an undertaking run by the Government of India, that is to say, it belongs to the Government of India. We regret to record, it has not been so shown that IDBI Limited belongs to the Government of India and is run by it. The transition of the Development Bank from a body corporate to a Company (IDBI Limited) without deep and pervasive administrative, financial and functional control of the Government of India over such Company having been shown gives us little reason to hold that after the enactment of the 2003 Act, IDBI Limited could still be regarded as an undertaking of the Government of India. We place on record that Shri Bapat has not referred to any authority which lays down the test for identifying an entity as an undertaking of the Government of India and, hence, we have proceeded to decide the issue formulated at the beginning of the judgment based on our reading of the IDBI Act and the 2003 Act and our understanding of the meaning of the word „undertaking referred to above. 20. Submission of Shri Bapat that the CVC Act has been made applicable to IDBI Limited and that the Ministry of Corporate affairs having recorded IDBI Limited as a non- banking Company and, therefore, IDBI Limited ought to be regarded as an undertaking of the Government of India, has failed to impress us. The vigilance control over IDBI Limited by the Central Vigilance Commission cannot be the guiding factor for exploring the answer to the issue which we are primarily tasked to decide. On this writ petition, we are not called upon to decide whether exercise of vigilance control over IDBI Limited by the Central Vigilance Commission is legal and valid. Such a question can be dealt with in an appropriate proceeding, if the occasion therefor arises. Further, nothing substantial turns on holding of 51% share capital in IDBI Limited by LICI. By reason of the definition in section 2(45) of the Companies Act, 2013, IDBI Limited is not a Government company. LICI could be a „State as defined in Article 12 of the Constitution but by reason thereof, it does not necessarily follow that IDBI Limited would attain the status of State within the meaning of Article 12. Also, reliance placed by the petitioner on the data maintained by the Ministry of Corporate Affairs on the Company (IDBI Limited) as per the requirement of the 1956 Act or the Companies Act, 2013 cannot be accepted as sacrosanct for ruling in favour of the petitioner having regard to the clear provisions of the applicable statutory enactments, as noted above. | 0[ds]16. The Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003 (hereafter the 2003 Act, for short) was enacted by the Parliament to provide for transfer and vesting of undertaking of the Development Bank to and in the Company to be formed and registered as a Company under the Companies Act, 1956 (hereafter the 1956 Act, for short) to carry on banking business and for matters connected therewith or incidental thereto and also to repeal the IDBI Act. Section 3 of the 2003 Act provides that on and from the date the Central Government may, by notification, appoint, the undertaking of the Development Bank shall be transferred to, and vest in, the Company, meaning thereby the Industrial Development Bank of India Limited to be formed and registered under the 1956 Act. We find that from October 1, 2004, the undertaking of the Development Bank stood transferred to, and vested in, the Company in terms of Section 3(1) of the 2003 Act.17. Section 5 of the 2003 Act contains provisions in respect of officers and other employees of IDBI Limited. Sub- section (1) thereof provides that every officer or other employee of the Development Bank (except a director of the Board or the chairman and managing director or any whole-time director) serving in the employment immediately before the appointed day shall, insofar as such officer or other employee is employed in connection with the undertaking which has vested in the Company by virtue of such Act, become, as from the appointed day, an officer or, as the case may be, other employee of the Company and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges in respect of matters mentioned therein and other benefits as he would have held under the Development Bank if its undertaking had not vested in the Company.18. In our considered view, section 5 of the 2003 Act is crucial and clinches the issue against the petitioner and for the respondents. Perusal of the 2003 Act clearly reveals cessation of the Development Bank as a body corporate which, by operation of the said Act, would stand transferred to and vested in the Company to be formed and registered under the 1956 Act. The Development Bank, from a body corporate, by reason of the 2003 Act (which also repealed the IDBI Act) attained an identity of a Company governed by the 1956 Act.19. Though „undertaking is a word of large import, it has to be read and understood in the context where it occurs. In the present context, a Government of India undertaking would mean an undertaking run by the Government of India, that is to say, it belongs to the Government of India. We regret to record, it has not been so shown that IDBI Limited belongs to the Government of India and is run by it. The transition of the Development Bank from a body corporate to a Company (IDBI Limited) without deep and pervasive administrative, financial and functional control of the Government of India over such Company having been shown gives us little reason to hold that after the enactment of the 2003 Act, IDBI Limited could still be regarded as an undertaking of the Government of India. We place on record that Shri Bapat has not referred to any authority which lays down the test for identifying an entity as an undertaking of the Government of India and, hence, we have proceeded to decide the issue formulated at the beginning of the judgment based on our reading of the IDBI Act and the 2003 Act and our understanding of the meaning of the word „undertaking referred to above.20. Submission of Shri Bapat that the CVC Act has been made applicable to IDBI Limited and that the Ministry of Corporate affairs having recorded IDBI Limited as a non- banking Company and, therefore, IDBI Limited ought to be regarded as an undertaking of the Government of India, has failed to impress us. The vigilance control over IDBI Limited by the Central Vigilance Commission cannot be the guiding factor for exploring the answer to the issue which we are primarily tasked to decide. On this writ petition, we are not called upon to decide whether exercise of vigilance control over IDBI Limited by the Central Vigilance Commission is legal and valid. Such a question can be dealt with in an appropriate proceeding, if the occasion therefor arises. Further, nothing substantial turns on holding of 51% share capital in IDBI Limited by LICI. By reason of the definition in section 2(45) of the Companies Act, 2013, IDBI Limited is not a Government company. LICI could be a „State as defined in Article 12 of the Constitution but by reason thereof, it does not necessarily follow that IDBI Limited would attain the status of State within the meaning of Article 12. Also, reliance placed by the petitioner on the data maintained by the Ministry of Corporate Affairs on the Company (IDBI Limited) as per the requirement of the 1956 Act or the Companies Act, 2013 cannot be accepted as sacrosanct for ruling in favour of the petitioner having regard to the clear provisions of the applicable statutory enactments, as noted above. | 0 | 3,027 | 989 | ### 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:
record and considered the rival contentions. 15. Consequent to the enactment of the Industrial Development Bank of India Act, 1964 (hereafter the IDBI Act, for short) and issuance of notification in terms of Section 3 thereof, the Industrial Development Bank of India (hereafter the Development Bank, for short) was brought into existence as a body corporate with effect from June 20, 1964. Section 26 of the IDBI Act provided for staff of the Development Bank. It was authorized to appoint such number of officers and employees as it considers necessary or desirable for the efficient performance of its functions and determine the terms and conditions of their appointment in service. 16. The Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003 (hereafter the 2003 Act, for short) was enacted by the Parliament to provide for transfer and vesting of undertaking of the Development Bank to and in the Company to be formed and registered as a Company under the Companies Act, 1956 (hereafter the 1956 Act, for short) to carry on banking business and for matters connected therewith or incidental thereto and also to repeal the IDBI Act. Section 3 of the 2003 Act provides that on and from the date the Central Government may, by notification, appoint, the undertaking of the Development Bank shall be transferred to, and vest in, the Company, meaning thereby the Industrial Development Bank of India Limited to be formed and registered under the 1956 Act. We find that from October 1, 2004, the undertaking of the Development Bank stood transferred to, and vested in, the Company in terms of Section 3(1) of the 2003 Act. 17. Section 5 of the 2003 Act contains provisions in respect of officers and other employees of IDBI Limited. Sub- section (1) thereof provides that every officer or other employee of the Development Bank (except a director of the Board or the chairman and managing director or any whole-time director) serving in the employment immediately before the appointed day shall, insofar as such officer or other employee is employed in connection with the undertaking which has vested in the Company by virtue of such Act, become, as from the appointed day, an officer or, as the case may be, other employee of the Company and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges in respect of matters mentioned therein and other benefits as he would have held under the Development Bank if its undertaking had not vested in the Company. 18. In our considered view, section 5 of the 2003 Act is crucial and clinches the issue against the petitioner and for the respondents. Perusal of the 2003 Act clearly reveals cessation of the Development Bank as a body corporate which, by operation of the said Act, would stand transferred to and vested in the Company to be formed and registered under the 1956 Act. The Development Bank, from a body corporate, by reason of the 2003 Act (which also repealed the IDBI Act) attained an identity of a Company governed by the 1956 Act. 19. Though „undertaking is a word of large import, it has to be read and understood in the context where it occurs. In the present context, a Government of India undertaking would mean an undertaking run by the Government of India, that is to say, it belongs to the Government of India. We regret to record, it has not been so shown that IDBI Limited belongs to the Government of India and is run by it. The transition of the Development Bank from a body corporate to a Company (IDBI Limited) without deep and pervasive administrative, financial and functional control of the Government of India over such Company having been shown gives us little reason to hold that after the enactment of the 2003 Act, IDBI Limited could still be regarded as an undertaking of the Government of India. We place on record that Shri Bapat has not referred to any authority which lays down the test for identifying an entity as an undertaking of the Government of India and, hence, we have proceeded to decide the issue formulated at the beginning of the judgment based on our reading of the IDBI Act and the 2003 Act and our understanding of the meaning of the word „undertaking referred to above. 20. Submission of Shri Bapat that the CVC Act has been made applicable to IDBI Limited and that the Ministry of Corporate affairs having recorded IDBI Limited as a non- banking Company and, therefore, IDBI Limited ought to be regarded as an undertaking of the Government of India, has failed to impress us. The vigilance control over IDBI Limited by the Central Vigilance Commission cannot be the guiding factor for exploring the answer to the issue which we are primarily tasked to decide. On this writ petition, we are not called upon to decide whether exercise of vigilance control over IDBI Limited by the Central Vigilance Commission is legal and valid. Such a question can be dealt with in an appropriate proceeding, if the occasion therefor arises. Further, nothing substantial turns on holding of 51% share capital in IDBI Limited by LICI. By reason of the definition in section 2(45) of the Companies Act, 2013, IDBI Limited is not a Government company. LICI could be a „State as defined in Article 12 of the Constitution but by reason thereof, it does not necessarily follow that IDBI Limited would attain the status of State within the meaning of Article 12. Also, reliance placed by the petitioner on the data maintained by the Ministry of Corporate Affairs on the Company (IDBI Limited) as per the requirement of the 1956 Act or the Companies Act, 2013 cannot be accepted as sacrosanct for ruling in favour of the petitioner having regard to the clear provisions of the applicable statutory enactments, as noted above.
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16. The Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003 (hereafter the 2003 Act, for short) was enacted by the Parliament to provide for transfer and vesting of undertaking of the Development Bank to and in the Company to be formed and registered as a Company under the Companies Act, 1956 (hereafter the 1956 Act, for short) to carry on banking business and for matters connected therewith or incidental thereto and also to repeal the IDBI Act. Section 3 of the 2003 Act provides that on and from the date the Central Government may, by notification, appoint, the undertaking of the Development Bank shall be transferred to, and vest in, the Company, meaning thereby the Industrial Development Bank of India Limited to be formed and registered under the 1956 Act. We find that from October 1, 2004, the undertaking of the Development Bank stood transferred to, and vested in, the Company in terms of Section 3(1) of the 2003 Act.17. Section 5 of the 2003 Act contains provisions in respect of officers and other employees of IDBI Limited. Sub- section (1) thereof provides that every officer or other employee of the Development Bank (except a director of the Board or the chairman and managing director or any whole-time director) serving in the employment immediately before the appointed day shall, insofar as such officer or other employee is employed in connection with the undertaking which has vested in the Company by virtue of such Act, become, as from the appointed day, an officer or, as the case may be, other employee of the Company and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges in respect of matters mentioned therein and other benefits as he would have held under the Development Bank if its undertaking had not vested in the Company.18. In our considered view, section 5 of the 2003 Act is crucial and clinches the issue against the petitioner and for the respondents. Perusal of the 2003 Act clearly reveals cessation of the Development Bank as a body corporate which, by operation of the said Act, would stand transferred to and vested in the Company to be formed and registered under the 1956 Act. The Development Bank, from a body corporate, by reason of the 2003 Act (which also repealed the IDBI Act) attained an identity of a Company governed by the 1956 Act.19. Though „undertaking is a word of large import, it has to be read and understood in the context where it occurs. In the present context, a Government of India undertaking would mean an undertaking run by the Government of India, that is to say, it belongs to the Government of India. We regret to record, it has not been so shown that IDBI Limited belongs to the Government of India and is run by it. The transition of the Development Bank from a body corporate to a Company (IDBI Limited) without deep and pervasive administrative, financial and functional control of the Government of India over such Company having been shown gives us little reason to hold that after the enactment of the 2003 Act, IDBI Limited could still be regarded as an undertaking of the Government of India. We place on record that Shri Bapat has not referred to any authority which lays down the test for identifying an entity as an undertaking of the Government of India and, hence, we have proceeded to decide the issue formulated at the beginning of the judgment based on our reading of the IDBI Act and the 2003 Act and our understanding of the meaning of the word „undertaking referred to above.20. Submission of Shri Bapat that the CVC Act has been made applicable to IDBI Limited and that the Ministry of Corporate affairs having recorded IDBI Limited as a non- banking Company and, therefore, IDBI Limited ought to be regarded as an undertaking of the Government of India, has failed to impress us. The vigilance control over IDBI Limited by the Central Vigilance Commission cannot be the guiding factor for exploring the answer to the issue which we are primarily tasked to decide. On this writ petition, we are not called upon to decide whether exercise of vigilance control over IDBI Limited by the Central Vigilance Commission is legal and valid. Such a question can be dealt with in an appropriate proceeding, if the occasion therefor arises. Further, nothing substantial turns on holding of 51% share capital in IDBI Limited by LICI. By reason of the definition in section 2(45) of the Companies Act, 2013, IDBI Limited is not a Government company. LICI could be a „State as defined in Article 12 of the Constitution but by reason thereof, it does not necessarily follow that IDBI Limited would attain the status of State within the meaning of Article 12. Also, reliance placed by the petitioner on the data maintained by the Ministry of Corporate Affairs on the Company (IDBI Limited) as per the requirement of the 1956 Act or the Companies Act, 2013 cannot be accepted as sacrosanct for ruling in favour of the petitioner having regard to the clear provisions of the applicable statutory enactments, as noted above.
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KUM C. YAMINI Vs. THE STATE OF ANDHRA PRADESH | which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11 th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11 th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection. 14. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain & Ors. v. Union of India & Ors. (supra). In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior counsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal (1) v. Union of India & Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (supra); in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We have looked into the judgments referred above by the learned senior counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case. 15. On the other hand, the judgment in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra), this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under : 25. From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services. 16. In the civil appeal arising out of S.L.P. (C)No.28302 of 2018, learned counsel for the appellants has submitted that the appellants be at least given the benefit of counting the service rendered by them in Fast Track Courts for pensionary and other benefits. In support of his claim, learned counsel placed reliance on the judgment of this Court in Mahesh Chandra Verma v. State of Jharkhand & Ors. wherein this Court has considered the very same issue and held that the service rendered as Fast Track Court Judges is to be counted for their length of service, for the purpose of determining their pension and other retiral benefits. 17. We have perused the aforesaid judgment and we are in agreement with the view taken by a two Judge Bench of this Court. | 0[ds]13. The claim of the appellants that they were appointed as ad hoc District Judges by following the procedure which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11 th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11 th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection14. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain & Ors. v. Union of India & Ors. (supra). In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior counsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal (1) v. Union of India & Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (supra); in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We have looked into the judgments referred above by the learned senior counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case15. On the other hand, the judgment in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra), this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under :25. From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services16. In the civil appeal arising out of S.L.P. (C)No.28302 of 2018, learned counsel for the appellants has submitted that the appellants be at least given the benefit of counting the service rendered by them in Fast Track Courts for pensionary and other benefits. In support of his claim, learned counsel placed reliance on the judgment of this Court in Mahesh Chandra Verma v. State of Jharkhand & Ors.wherein this Court has considered the very same issue and held that the service rendered as Fast Track Court Judges is to be counted for their length of service, for the purpose of determining their pension and other retiral benefits17. We have perused the aforesaid judgment and we are in agreement with the view taken by a two Judge Bench of this Court. | 0 | 3,840 | 1,115 | ### 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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which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11 th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11 th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection. 14. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain & Ors. v. Union of India & Ors. (supra). In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior counsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal (1) v. Union of India & Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (supra); in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We have looked into the judgments referred above by the learned senior counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case. 15. On the other hand, the judgment in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra), this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under : 25. From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services. 16. In the civil appeal arising out of S.L.P. (C)No.28302 of 2018, learned counsel for the appellants has submitted that the appellants be at least given the benefit of counting the service rendered by them in Fast Track Courts for pensionary and other benefits. In support of his claim, learned counsel placed reliance on the judgment of this Court in Mahesh Chandra Verma v. State of Jharkhand & Ors. wherein this Court has considered the very same issue and held that the service rendered as Fast Track Court Judges is to be counted for their length of service, for the purpose of determining their pension and other retiral benefits. 17. We have perused the aforesaid judgment and we are in agreement with the view taken by a two Judge Bench of this Court.
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District Judges by following the procedure which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11 th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11 th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection14. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain & Ors. v. Union of India & Ors. (supra). In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior counsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal (1) v. Union of India & Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (supra); in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We have looked into the judgments referred above by the learned senior counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case15. On the other hand, the judgment in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra), this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under :25. From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services16. In the civil appeal arising out of S.L.P. (C)No.28302 of 2018, learned counsel for the appellants has submitted that the appellants be at least given the benefit of counting the service rendered by them in Fast Track Courts for pensionary and other benefits. In support of his claim, learned counsel placed reliance on the judgment of this Court in Mahesh Chandra Verma v. State of Jharkhand & Ors.wherein this Court has considered the very same issue and held that the service rendered as Fast Track Court Judges is to be counted for their length of service, for the purpose of determining their pension and other retiral benefits17. We have perused the aforesaid judgment and we are in agreement with the view taken by a two Judge Bench of this Court.
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M/S Hcl Infosystem Ltd Vs. Central Bureau Of Investigation | fresh notification for the court occupied by him, his transfer order is under abeyance till his successor joins. “ 11. The only contention raised by Shri C.U. Singh, learned senior counsel for the appellant is that public servant having died before framing of the charge, the appellant could not be tried by the Special Judge. He did not challenge any other finding in the impugned order except those relevant to this contention. Shri Singh submits that the case of the appellant-M/s. HCL Infosystem Limited is fully covered by the judgment of this Court in State through Central Bureau of Investigation, New Delhi Vs. Jitender Kumar Singh (2014) 11 SCC 724 ). Particular reliance was placed on paragraph 46 of the judgment. It was submitted that the trial in a warrant case commenced on framing of the charge which has not yet happened and the public servant had died. The appellant could be tried only during the lifetime of the public servant. Having regard to the fact that the public servant has died before the framing of the charge, this Court upheld the view of the High Court in forwarding the papers of the case to the Chief Judicial Magistrate.12. His main reliance is on paragraphs 46 and 47 of the judgment which are as follows : “ xxx46. We may now examine Criminal Appeal No.161 of 2011, where the FIR was registered on 2-7-1996 and the charge-sheet was filed before the Special Judge on 14-9-2001 for the offences under Sections 120-B, 420 IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the charge-sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18-2-2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under sub-section (3) of Section 4, the Special Judge could try non-PC offences only when “trying any case” relating to PC offences. In the instant case, no PC offence has been committed by any of the non-public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the Special Judge to try any case relating to the offences under the PC Act against the appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine qua non for exercising powers under sub-section (3) of Section 4 of the PC Act. In the instant case, since no PC offence has been committed by any of the non-public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences.47. Consequently, we find no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No.88 of 2001 in the Court of the Chief Metropolitan Magistrate for trying the case in accordance with law. Consequently, the order passed by the High Court is set aside. The competent court to which Special Case No.88 of 2001 is forwarded, is directed to dispose of the same within a period of six months. Criminal Appeal No. 161 of 2011 is allowed accordingly.” 13. Learned counsel for the CBI supports the impugned order by submitting that the cognizance had already been taken and the matter should be allowed to proceed before the Special Judge in view of the impugned order of the High Court. 14. While we do find that the observations of this Court in Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted above support the contention of Shri Singh that the Special Judge, under Section 4(3), could not try an offence other than that specified under Section 3. The public servant was no more and the trial had not commenced. In view of the relied upon judgment in absence of PC Act charge, the appellants may not be liable to be tried before the Special Judge. However, we find two difficulties in accepting the submission of Shri Singh as follows: (i) As observed by the High Court, the charge is yet to be framed and the framing of charge under the PC Act from the material placed on record was not ruled out. Thus, the argument at this stage is pre-mature; and(ii) The Special Judge was authorized not only to deal with the cases under the PC Act as was the position in the case before this Court in Jitender Kumar Singh (supra) but also for other offences. This course was permissible in view of law laid down by this Court in M/s. Essar Teleholdings Limited (supra). 15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also other cases relating to the NRHM scam. Procedure of Code of Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non PC cases when the object of doing so was to try connected cases before same court. Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non-PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so, as held by this Court in M/s. Essar Teleholdings Limited (supra). 16. In view of above distinguishing feature in the present case from the case of Jitender Kumar Singh (supra), we | 0[ds]15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also othercases relating to theNRHM scam. Procedure of Code of Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non PC cases when the object of doing so was to try connected cases before same court. Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non-PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so | 0 | 5,656 | 133 | ### 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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fresh notification for the court occupied by him, his transfer order is under abeyance till his successor joins. “ 11. The only contention raised by Shri C.U. Singh, learned senior counsel for the appellant is that public servant having died before framing of the charge, the appellant could not be tried by the Special Judge. He did not challenge any other finding in the impugned order except those relevant to this contention. Shri Singh submits that the case of the appellant-M/s. HCL Infosystem Limited is fully covered by the judgment of this Court in State through Central Bureau of Investigation, New Delhi Vs. Jitender Kumar Singh (2014) 11 SCC 724 ). Particular reliance was placed on paragraph 46 of the judgment. It was submitted that the trial in a warrant case commenced on framing of the charge which has not yet happened and the public servant had died. The appellant could be tried only during the lifetime of the public servant. Having regard to the fact that the public servant has died before the framing of the charge, this Court upheld the view of the High Court in forwarding the papers of the case to the Chief Judicial Magistrate.12. His main reliance is on paragraphs 46 and 47 of the judgment which are as follows : “ xxx46. We may now examine Criminal Appeal No.161 of 2011, where the FIR was registered on 2-7-1996 and the charge-sheet was filed before the Special Judge on 14-9-2001 for the offences under Sections 120-B, 420 IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the charge-sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18-2-2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under sub-section (3) of Section 4, the Special Judge could try non-PC offences only when “trying any case” relating to PC offences. In the instant case, no PC offence has been committed by any of the non-public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the Special Judge to try any case relating to the offences under the PC Act against the appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine qua non for exercising powers under sub-section (3) of Section 4 of the PC Act. In the instant case, since no PC offence has been committed by any of the non-public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences.47. Consequently, we find no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No.88 of 2001 in the Court of the Chief Metropolitan Magistrate for trying the case in accordance with law. Consequently, the order passed by the High Court is set aside. The competent court to which Special Case No.88 of 2001 is forwarded, is directed to dispose of the same within a period of six months. Criminal Appeal No. 161 of 2011 is allowed accordingly.” 13. Learned counsel for the CBI supports the impugned order by submitting that the cognizance had already been taken and the matter should be allowed to proceed before the Special Judge in view of the impugned order of the High Court. 14. While we do find that the observations of this Court in Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted above support the contention of Shri Singh that the Special Judge, under Section 4(3), could not try an offence other than that specified under Section 3. The public servant was no more and the trial had not commenced. In view of the relied upon judgment in absence of PC Act charge, the appellants may not be liable to be tried before the Special Judge. However, we find two difficulties in accepting the submission of Shri Singh as follows: (i) As observed by the High Court, the charge is yet to be framed and the framing of charge under the PC Act from the material placed on record was not ruled out. Thus, the argument at this stage is pre-mature; and(ii) The Special Judge was authorized not only to deal with the cases under the PC Act as was the position in the case before this Court in Jitender Kumar Singh (supra) but also for other offences. This course was permissible in view of law laid down by this Court in M/s. Essar Teleholdings Limited (supra). 15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also other cases relating to the NRHM scam. Procedure of Code of Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non PC cases when the object of doing so was to try connected cases before same court. Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non-PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so, as held by this Court in M/s. Essar Teleholdings Limited (supra). 16. In view of above distinguishing feature in the present case from the case of Jitender Kumar Singh (supra), we
### Response:
0
### Explanation:
15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also othercases relating to theNRHM scam. Procedure of Code of Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non PC cases when the object of doing so was to try connected cases before same court. Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non-PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so
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Janki Nath Sarangi Vs. State of Orissa | of the Administrative Tribunal, Orissa, who gave his findings on 10 October, 1956 holding them proved. The member also recommended a punishment of dismissal against the appellant. The second show-cause notice against the punishment was given to the appellant who duly showed cause but it was not accepted. The order of dismissal as stated above was passed against him. 3. The High Court dismissed the petition which had been filed before it questioning the order of dismissal on the ground that principles of natural justice were violated in making the enquiry. The present appeal is by special leave of this Court. 4. In this appeal it is also contended that the principles of natural justice were violated in the conduct of the enquiry and in support it is urged that the appellant was denied the right of leading his evidence in defence and also that he was not given inspection of some material which was used against him but was collected behind his back. The second instance in which the present pleas arise was as follows. The work was completed in the first mile in November 1953 and January 1954. The earthwork was checked by measurement by the appellant on 6 March, 1954. Later, the Executive Engineer re-checked the measurement on 8 May, 1954 when the inflated measurements were detected. In the sixth mile the work was completed in October 1953 and January 1954. The measurements were checked by the Enforcement Department in the presence of the Executive Engineer on 21 July, 1954 and the inflated measurements were discovered. The case of the appellants was that due to natural causes such as rain, flood, etc., the pits and the witnesses had got obliterated. The report, against him was that false witnesses had been created and the earthwork between the pits had been artificially raised to show a deeper digging, than was actually done. In fact the pits were supposed to go to a depth of one foot but they were invariably found to be only seven to eight inches deep. The question was whether the action of rain and/or floods was responsible for obliterating the true measurement and giving a wrong picture at the time of re-checking. In this connexion, the appellant wished to examine one Mohanti or one Pujari, retired Superintending Engineers, as his witnesses. The enquiring officer did not examine these witnesses first because he had a technical man Dass, Superintending Engineer, to assist him to whom the same questions could be referred and next that eight instances which were the subject of debate between the appellant and the department were referred by the enquiring officer, the Chief Engineer, for his opinion. The replies of the Chief Engineer do not appear to have been shown to the appellant in the first instance although he admits that they were place in his hands at the time when the second notice was issued to him. 5. From this material it is argued that the principles of natural justice were violated because the right of the appellant to have his own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt. In support of these contentions a number of rulings is cited chief among which are State of Bombay v. Nurul Latif Khan [1966 - II L.L.J. 595]; State of Uttar Pradesh and another v. C. S. Sharma [1969 - I L.L.J. 509] and Union of India v. T. R. Varma [1958 - II L.L.J. 259]. There is no doubt that if the principles of natural instice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. Here, the question was a simple one, viz., whether the measurement book prepared for the contract work had been properly scrutinized and checked by the appellant or not. He did the checking in March 1954 and immediately thereafter in May 1954, the Executive Engineer re-checked the measurements and found that the previous checking had not been done properly. Between March and May there could not be much rainfall, if at all, and the marks of digging according to the witnesses could not be obliterated during that time. It is, however, said that at the sixth and seventh mile the checking was done in July and by that time rains might have set in. Even so, the witnesses at the sites of the pits could not be so considerably altered as to present a totally wrong picture. If anything had happened, the earth would have swollen rather than contracted by reason of rain and the pits would have become bigger and not smaller. Any way the question which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them. The case was a simple one whether the measurement book had been properly checked. The pleas about rain and floods were utterly useless and the Chief Engineers elucidated replies were not against the appellant. In these circumstances a fetish of the principles of natural justice is not necessary to be made. We do not think that a case is made out that the principles of natural justice are violated. 6. | 0[ds]There is no doubt that if the principles of natural instice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular rightHe did the checking in March 1954 and immediately thereafter in May 1954, the Executive Engineer re-checked the measurements and found that the previous checking had not been done properly. Between March and May there could not be much rainfall, if at all, and the marks of digging according to the witnesses could not be obliterated during that time. It is, however, said that at the sixth and seventh mile the checking was done in July and by that time rains might have set in. Even so, the witnesses at the sites of the pits could not be so considerably altered as to present a totally wrong picture. If anything had happened, the earth would have swollen rather than contracted by reason of rain and the pits would have become bigger and not smaller. Any way the question which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them. The case was a simple one whether the measurement book had been properly checked. The pleas about rain and floods were utterly useless and the Chief Engineers elucidated replies were not against the appellant. In these circumstances a fetish of the principles of natural justice is not necessary to be made. We do not think that a case is made out that the principles of natural justice are violated. | 0 | 1,344 | 410 | ### Instruction:
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of the Administrative Tribunal, Orissa, who gave his findings on 10 October, 1956 holding them proved. The member also recommended a punishment of dismissal against the appellant. The second show-cause notice against the punishment was given to the appellant who duly showed cause but it was not accepted. The order of dismissal as stated above was passed against him. 3. The High Court dismissed the petition which had been filed before it questioning the order of dismissal on the ground that principles of natural justice were violated in making the enquiry. The present appeal is by special leave of this Court. 4. In this appeal it is also contended that the principles of natural justice were violated in the conduct of the enquiry and in support it is urged that the appellant was denied the right of leading his evidence in defence and also that he was not given inspection of some material which was used against him but was collected behind his back. The second instance in which the present pleas arise was as follows. The work was completed in the first mile in November 1953 and January 1954. The earthwork was checked by measurement by the appellant on 6 March, 1954. Later, the Executive Engineer re-checked the measurement on 8 May, 1954 when the inflated measurements were detected. In the sixth mile the work was completed in October 1953 and January 1954. The measurements were checked by the Enforcement Department in the presence of the Executive Engineer on 21 July, 1954 and the inflated measurements were discovered. The case of the appellants was that due to natural causes such as rain, flood, etc., the pits and the witnesses had got obliterated. The report, against him was that false witnesses had been created and the earthwork between the pits had been artificially raised to show a deeper digging, than was actually done. In fact the pits were supposed to go to a depth of one foot but they were invariably found to be only seven to eight inches deep. The question was whether the action of rain and/or floods was responsible for obliterating the true measurement and giving a wrong picture at the time of re-checking. In this connexion, the appellant wished to examine one Mohanti or one Pujari, retired Superintending Engineers, as his witnesses. The enquiring officer did not examine these witnesses first because he had a technical man Dass, Superintending Engineer, to assist him to whom the same questions could be referred and next that eight instances which were the subject of debate between the appellant and the department were referred by the enquiring officer, the Chief Engineer, for his opinion. The replies of the Chief Engineer do not appear to have been shown to the appellant in the first instance although he admits that they were place in his hands at the time when the second notice was issued to him. 5. From this material it is argued that the principles of natural justice were violated because the right of the appellant to have his own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt. In support of these contentions a number of rulings is cited chief among which are State of Bombay v. Nurul Latif Khan [1966 - II L.L.J. 595]; State of Uttar Pradesh and another v. C. S. Sharma [1969 - I L.L.J. 509] and Union of India v. T. R. Varma [1958 - II L.L.J. 259]. There is no doubt that if the principles of natural instice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. Here, the question was a simple one, viz., whether the measurement book prepared for the contract work had been properly scrutinized and checked by the appellant or not. He did the checking in March 1954 and immediately thereafter in May 1954, the Executive Engineer re-checked the measurements and found that the previous checking had not been done properly. Between March and May there could not be much rainfall, if at all, and the marks of digging according to the witnesses could not be obliterated during that time. It is, however, said that at the sixth and seventh mile the checking was done in July and by that time rains might have set in. Even so, the witnesses at the sites of the pits could not be so considerably altered as to present a totally wrong picture. If anything had happened, the earth would have swollen rather than contracted by reason of rain and the pits would have become bigger and not smaller. Any way the question which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them. The case was a simple one whether the measurement book had been properly checked. The pleas about rain and floods were utterly useless and the Chief Engineers elucidated replies were not against the appellant. In these circumstances a fetish of the principles of natural justice is not necessary to be made. We do not think that a case is made out that the principles of natural justice are violated. 6.
### Response:
0
### Explanation:
There is no doubt that if the principles of natural instice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular rightHe did the checking in March 1954 and immediately thereafter in May 1954, the Executive Engineer re-checked the measurements and found that the previous checking had not been done properly. Between March and May there could not be much rainfall, if at all, and the marks of digging according to the witnesses could not be obliterated during that time. It is, however, said that at the sixth and seventh mile the checking was done in July and by that time rains might have set in. Even so, the witnesses at the sites of the pits could not be so considerably altered as to present a totally wrong picture. If anything had happened, the earth would have swollen rather than contracted by reason of rain and the pits would have become bigger and not smaller. Any way the question which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them. The case was a simple one whether the measurement book had been properly checked. The pleas about rain and floods were utterly useless and the Chief Engineers elucidated replies were not against the appellant. In these circumstances a fetish of the principles of natural justice is not necessary to be made. We do not think that a case is made out that the principles of natural justice are violated.
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Mehra Bros Vs. Joint Commercial Officer, Madras | been converted into seat covers, it becomes an auto-part or accessory. Accordingly it was held that it would be exigible to sales tax under Entry 3 of Schedule I of the Act. In S.M. Brothers v. Dy. Commissioner of Commercial Taxes case ( 1977 (39) STC 182 (AP)) the question therein also was whether car seat covers are accessories to the car and exigible to tax. The Andhra Pradesh High Court held that accessories are not necessarily confined to particular machines for which they may serve as aids. The same item may be an accessory of more than one kind of instrument. The deciding factor is that predominant or ordinary purpose as aid. It is not enough to show that the article can be put to other user also. It is its general or predominant user which determines the category in which an article will fall. It was, therefore, held that the car seat covers will also be accessories. In CST v. Jayesh (India) Agencies case ( 1973 (32) STC 346 (Mad)) the Bombay High Court also came to consider the same question whether car seat covers are accessories to the motor car. It was held that the article adapted for use in motor vehicles as they have been made for the purpose of being used in motor vehicles and according to the measurement of the customers vehicles, motor car seat covers as well as other items for the use in motor car and the user thereof would certainly contribute to the beautification of the motor vehicle in which they are used. Car seat covers would add to the passengers comfort in the motor vehicles. Accordingly it was held that car seat covers must be regarded as accessories to the motor vehicles as contemplated in Clause (2) of Entry 58 of the Bombay Sales Tax Act, 1959. 5. In Supreme Motors v. State of Karnataka case ( 1983 (54) STC 308 (Kant)) the Karnataka High Court has taken different view. It held that the car seat covers, at best could make the seat more comfortable, but do not serve as aids to the vehicle as a whole, and therefore, they must fall outside the ambit of Entry 73 of the Second Schedule to the Karnataka Sales Tax Act, 1957 and was not exigible to sales tax at 13 per cent. Undoubtedly this ratio would help the appellant. The learned Judges laid emphasis thus: "Every part is useful to the car for its effective operation. Likewise should be the aid of the accessory in order to fall within the said entry. The accessory to a part which has no convenience or effectiveness to the entire car as such cannot, in our opinion, fall within Entry 73." * Having given our anxious consideration, with respect, we are of the considered view that the test laid down by the Karnataka High Court that the accessories as a part must contribute for convenience or effectiveness in the use of the car as a whole is not a correct test. In our view the correct test would be whether the article or articles in question would be an adjunct or an accompaniment or an addition for the convenient use of another part of the vehicle or adds to the beauty, elegance or comfort for the use of the motor vehicle or as a supplementary or secondary to the main or primary importance. Whether an article or part is an accessory cannot be decided with reference to its necessary to its effective use of the vehicle as a whole. General adaptability may be relevant but may not by itself be conclusive. Take for instance stereo or air-conditioner designed and manufactured for fitment in a motor car. It would not be absolutely necessary or generally adapted. But When they are fitted to the vehicle, undoubtedly it would add comfort or enjoyment in the use of the vehicle. Another test may be whether a particular article or articles or parts, can be said to be available for sale in an automobile market or shops or places of manufacture; if the dealer says it to be available certainly such an article or part would be manufactured or kept for sale only as an accessory for the use in the motor vehicle. Of course, this may not also be a conclusive test but it is given only by way of illustration. Undoubtedly some of the parts like axle, steering, tyres, battery etc. are absolutely necessary accessories for the effective use of the motor vehicle. If the test that each accessory must add to the convenience or effectiveness of the use of the car as a whole is given acceptance many a part in the motor car by this process would fall outside the ambit of accessories to the motor car. That would not appear to be the intention of the legislature. Similarly in Free India Cycle Industries ( 1970 (26) STC 428 (All)) and Shadi Cycle Industries cases ( 1971 (27) STC 56 (All)) the Allahabad High Court held that cycle covers, rexine saddle cover whether part or accessory of vehicle under Item 34 of the notification dated April 5, 1961 issued by the State of U.P. under Sections 3, 3-A of the U.P. Sales Tax Act (15 of 1948) with the same reasoning, as was given by the Karnataka High Court to be not accessories. We express that the Allahabad High Court also has not laid down the test correctly. 6. Thus considered we hold that car seat covers or upholstery are accessories as an addition; an adjunct; an accompaniment for comfortable use of the motor vehicles or for adding elegance to the seat. Admittedly the appellant manufactured car seat covers and upholstery for sale as an automobile part in the regular course of business. Therefore, they are exigible to sales tax at 13 per cent under Entry 3 of Schedule I read with Section 3(3) of the Act. Therefore, we do not find any ground warranting interference. 7. | 0[ds]Having given our anxious consideration, with respect, we are of the considered view that the test laid down by the Karnataka High Court that the accessories as a part must contribute for convenience or effectiveness in the use of the car as a whole is not a correct test. In our view the correct test would be whether the article or articles in question would be an adjunct or an accompaniment or an addition for the convenient use of another part of the vehicle or adds to the beauty, elegance or comfort for the use of the motor vehicle or as a supplementary or secondary to the main or primary importance. Whether an article or part is an accessory cannot be decided with reference to its necessary to its effective use of the vehicle as a whole. General adaptability may be relevant but may not by itself be conclusive. Take for instance stereo or air-conditioner designed and manufactured for fitment in a motor car. It would not be absolutely necessary or generally adapted. But When they are fitted to the vehicle, undoubtedly it would add comfort or enjoyment in the use of the vehicle. Another test may be whether a particular article or articles or parts, can be said to be available for sale in an automobile market or shops or places of manufacture; if the dealer says it to be available certainly such an article or part would be manufactured or kept for sale only as an accessory for the use in the motor vehicle. Of course, this may not also be a conclusive test but it is given only by way of illustration. Undoubtedly some of the parts like axle, steering, tyres, battery etc. are absolutely necessary accessories for the effective use of the motor vehicle. If the test that each accessory must add to the convenience or effectiveness of the use of the car as a whole is given acceptance many a part in the motor car by this process would fall outside the ambit of accessories to the motor car. That would not appear to be the intention of the legislature. Similarly in Free India Cycle Industries ( 1970 (26) STC 428 (All)) and Shadi Cycle Industries cases ( 1971 (27) STC 56 (All)) the Allahabad High Court held that cycle covers, rexine saddle cover whether part or accessory of vehicle under Item 34 of the notification dated April 5, 1961 issued by the State of U.P. under Sections 3, 3-A of the U.P. Sales Tax Act (15 of 1948) with the same reasoning, as was given by the Karnataka High Court to be not accessories. We express that the Allahabad High Court also has not laid down the testThus considered we hold that car seat covers or upholstery are accessories as an addition; an adjunct; an accompaniment for comfortable use of the motor vehicles or for adding elegance to the seat. Admittedly the appellant manufactured car seat covers and upholstery for sale as an automobile part in the regular course of business. Therefore, they are exigible to sales tax at 13 per cent under Entry 3 of Schedule I read with Section 3(3) of the Act. Therefore, we do not find any ground warranting interference. | 0 | 2,465 | 598 | ### Instruction:
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### Input:
been converted into seat covers, it becomes an auto-part or accessory. Accordingly it was held that it would be exigible to sales tax under Entry 3 of Schedule I of the Act. In S.M. Brothers v. Dy. Commissioner of Commercial Taxes case ( 1977 (39) STC 182 (AP)) the question therein also was whether car seat covers are accessories to the car and exigible to tax. The Andhra Pradesh High Court held that accessories are not necessarily confined to particular machines for which they may serve as aids. The same item may be an accessory of more than one kind of instrument. The deciding factor is that predominant or ordinary purpose as aid. It is not enough to show that the article can be put to other user also. It is its general or predominant user which determines the category in which an article will fall. It was, therefore, held that the car seat covers will also be accessories. In CST v. Jayesh (India) Agencies case ( 1973 (32) STC 346 (Mad)) the Bombay High Court also came to consider the same question whether car seat covers are accessories to the motor car. It was held that the article adapted for use in motor vehicles as they have been made for the purpose of being used in motor vehicles and according to the measurement of the customers vehicles, motor car seat covers as well as other items for the use in motor car and the user thereof would certainly contribute to the beautification of the motor vehicle in which they are used. Car seat covers would add to the passengers comfort in the motor vehicles. Accordingly it was held that car seat covers must be regarded as accessories to the motor vehicles as contemplated in Clause (2) of Entry 58 of the Bombay Sales Tax Act, 1959. 5. In Supreme Motors v. State of Karnataka case ( 1983 (54) STC 308 (Kant)) the Karnataka High Court has taken different view. It held that the car seat covers, at best could make the seat more comfortable, but do not serve as aids to the vehicle as a whole, and therefore, they must fall outside the ambit of Entry 73 of the Second Schedule to the Karnataka Sales Tax Act, 1957 and was not exigible to sales tax at 13 per cent. Undoubtedly this ratio would help the appellant. The learned Judges laid emphasis thus: "Every part is useful to the car for its effective operation. Likewise should be the aid of the accessory in order to fall within the said entry. The accessory to a part which has no convenience or effectiveness to the entire car as such cannot, in our opinion, fall within Entry 73." * Having given our anxious consideration, with respect, we are of the considered view that the test laid down by the Karnataka High Court that the accessories as a part must contribute for convenience or effectiveness in the use of the car as a whole is not a correct test. In our view the correct test would be whether the article or articles in question would be an adjunct or an accompaniment or an addition for the convenient use of another part of the vehicle or adds to the beauty, elegance or comfort for the use of the motor vehicle or as a supplementary or secondary to the main or primary importance. Whether an article or part is an accessory cannot be decided with reference to its necessary to its effective use of the vehicle as a whole. General adaptability may be relevant but may not by itself be conclusive. Take for instance stereo or air-conditioner designed and manufactured for fitment in a motor car. It would not be absolutely necessary or generally adapted. But When they are fitted to the vehicle, undoubtedly it would add comfort or enjoyment in the use of the vehicle. Another test may be whether a particular article or articles or parts, can be said to be available for sale in an automobile market or shops or places of manufacture; if the dealer says it to be available certainly such an article or part would be manufactured or kept for sale only as an accessory for the use in the motor vehicle. Of course, this may not also be a conclusive test but it is given only by way of illustration. Undoubtedly some of the parts like axle, steering, tyres, battery etc. are absolutely necessary accessories for the effective use of the motor vehicle. If the test that each accessory must add to the convenience or effectiveness of the use of the car as a whole is given acceptance many a part in the motor car by this process would fall outside the ambit of accessories to the motor car. That would not appear to be the intention of the legislature. Similarly in Free India Cycle Industries ( 1970 (26) STC 428 (All)) and Shadi Cycle Industries cases ( 1971 (27) STC 56 (All)) the Allahabad High Court held that cycle covers, rexine saddle cover whether part or accessory of vehicle under Item 34 of the notification dated April 5, 1961 issued by the State of U.P. under Sections 3, 3-A of the U.P. Sales Tax Act (15 of 1948) with the same reasoning, as was given by the Karnataka High Court to be not accessories. We express that the Allahabad High Court also has not laid down the test correctly. 6. Thus considered we hold that car seat covers or upholstery are accessories as an addition; an adjunct; an accompaniment for comfortable use of the motor vehicles or for adding elegance to the seat. Admittedly the appellant manufactured car seat covers and upholstery for sale as an automobile part in the regular course of business. Therefore, they are exigible to sales tax at 13 per cent under Entry 3 of Schedule I read with Section 3(3) of the Act. Therefore, we do not find any ground warranting interference. 7.
### Response:
0
### Explanation:
Having given our anxious consideration, with respect, we are of the considered view that the test laid down by the Karnataka High Court that the accessories as a part must contribute for convenience or effectiveness in the use of the car as a whole is not a correct test. In our view the correct test would be whether the article or articles in question would be an adjunct or an accompaniment or an addition for the convenient use of another part of the vehicle or adds to the beauty, elegance or comfort for the use of the motor vehicle or as a supplementary or secondary to the main or primary importance. Whether an article or part is an accessory cannot be decided with reference to its necessary to its effective use of the vehicle as a whole. General adaptability may be relevant but may not by itself be conclusive. Take for instance stereo or air-conditioner designed and manufactured for fitment in a motor car. It would not be absolutely necessary or generally adapted. But When they are fitted to the vehicle, undoubtedly it would add comfort or enjoyment in the use of the vehicle. Another test may be whether a particular article or articles or parts, can be said to be available for sale in an automobile market or shops or places of manufacture; if the dealer says it to be available certainly such an article or part would be manufactured or kept for sale only as an accessory for the use in the motor vehicle. Of course, this may not also be a conclusive test but it is given only by way of illustration. Undoubtedly some of the parts like axle, steering, tyres, battery etc. are absolutely necessary accessories for the effective use of the motor vehicle. If the test that each accessory must add to the convenience or effectiveness of the use of the car as a whole is given acceptance many a part in the motor car by this process would fall outside the ambit of accessories to the motor car. That would not appear to be the intention of the legislature. Similarly in Free India Cycle Industries ( 1970 (26) STC 428 (All)) and Shadi Cycle Industries cases ( 1971 (27) STC 56 (All)) the Allahabad High Court held that cycle covers, rexine saddle cover whether part or accessory of vehicle under Item 34 of the notification dated April 5, 1961 issued by the State of U.P. under Sections 3, 3-A of the U.P. Sales Tax Act (15 of 1948) with the same reasoning, as was given by the Karnataka High Court to be not accessories. We express that the Allahabad High Court also has not laid down the testThus considered we hold that car seat covers or upholstery are accessories as an addition; an adjunct; an accompaniment for comfortable use of the motor vehicles or for adding elegance to the seat. Admittedly the appellant manufactured car seat covers and upholstery for sale as an automobile part in the regular course of business. Therefore, they are exigible to sales tax at 13 per cent under Entry 3 of Schedule I read with Section 3(3) of the Act. Therefore, we do not find any ground warranting interference.
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Dy. Commercial Tax Officer Vs. Corromandal Pharmaceuticals | not be made the subject-matter of coercive action of similar quality and characteristic till the BIFR finally disposes of the reference made under Section 15 of the 1985 Act. The legislature has advisedly used an omnibus expression the like as it could not have conceived of all possible coercive measures that may be taken against a sick undertaking.... * Our attention was also drawn to the following High Court decisions : Reliance Ispat Industries Ltd. v. CST ( (MP)); Himalaya Rubber Products Ltd. v. Board for Industrial and Financial Reconstruction ((Cal)); Vijay Mills Co. Ltd. v. State of Gujarat ((Guj)), etc 11. The Madhya Pradesh and Calcutta High Courts have followed the decision of this Court in Grain Panchayat v. Shree Vallabh Glass Works Ltd. 12. On a fair reading of the provisions contained in Chapter III of Act 1 of 1986 and in particular Sections 15 to 22, we are of the opinion that the plea put forward by the Revenue is reasonable and fair in all the a circumstances of the case. Under the statute, the BIFR is to consider in what way various preventive or remedial measures should be afforded to a sick industrial company. In that behalf, BIFR is enabled to frame an appropriate scheme. To enable the BIFR to do so, certain preliminaries are required to be followed. It starts with the reference to be made by the Board of Directors of the sick company. The BIFR is directed to make appropriate inquiry as provided in Sections 16 and 17 of the Act. At the conclusion of the inquiry, after notice and opportunity afforded to various persons including the creditors, the BIFR is to prepare a scheme which shall come into force on such date as it may specify in that behalf. It is in implementation of the scheme wherein various preventive, remedial or other measures are designed for the sick industrial company, steps by way of giving financial assistance etc. by Government, banks or other institutions, are contemplated. In other words, the scheme is implemented or given effect to, by affording financial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifices by Government, banks, public financial institutions and other authorities. In order to see that the scheme is successfully implemented and no impediment is caused for the successful carrying out of the scheme, the Board is enabled to have a say when the steps for recovery of the amounts or other coercive proceedings are taken against sick industrial company which, during the relevant time, acts under the guidance/control or supervision of the Board (BIFR). Any step for execution, distress or the like against the properties of the industrial company or other similar steps, should not be pursued which will cause delay or impediment in the implementation of the sanctioned scheme. In order to safeguard such state of affairs, an embargo or bar is placed under Section 22 of the Act against any step for execution, distress or the like or other similar proceedings against the company without the consent of the Board or, as the case may be, the appellate authority. The language of Section 22 of the Act is certainly wide. But, in the totality of the circumstances, the safeguard is only against the impediment, that is likely to be caused in the implementation of the scheme. If that be so, only the liability or amounts covered by the scheme will be taken in, by Section 22 of the Act. So, we are of the view that though the language of Section 22 of the Act is of wide import regarding suspension of legal proceedings from the moment an inquiry is started, till after the implementation of the scheme or the disposal of an appeal under Section 25 of the Act, it will be reasonable to hold that the bar or embargo envisaged in Section 22(1) of the Act can apply only to such of those dues reckoned or included in the sanctioned scheme. Such amounts like sales tax, etc., which the sick industrial company is enabled to collect after the date of the sanctioned scheme legitimately belonging to the Revenue, cannot be and could not have been intended to be covered within Section 22 of the Act. Any other construction will be unreasonable and unfair and will lead to a state of affairs enabling the sick industrial unit to collect amounts due to the Revenue and withhold it indefinitely and unreasonably. Such a construction which is unfair, unreasonable and against the spirit of the statute in a business sense, should a be avoided 13. The situation which has arisen in this case seems to be rather exceptional. The issue that has arisen in this appeal did not arise for consideration in the two cases decided by this Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd. and Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn. of Maharashtra Ltd. It does not appear from the above two decisions of this Court nor from the decisions of the various High Courts brought to our notice, that in any one of them, the liability of the sick company dealt with therein itself arose, for the first time after the date of sanctioned scheme. At any rate, in none of those cases, a situation arose whereby the sick industrial unit was enabled to collect tax due to the Revenue from the customers after the sanctioned scheme but the sick unit simply folded its hands and declined to pay it over to the Revenue, for which proceedings for recovery, had to be taken. The two decisions of this Court as also the decisions of High Courts brought to our notice are, therefore, distinguishable. They will not apply to a situation as has arisen in this case. We are, therefore, of the opinion that Section 22(1) should be read down or understood as contended by the Revenue. The decision to the contrary by the High Court is unreasonable and unsustainable. 14. | 1[ds]13. The situation which has arisen in this case seems to be rather exceptional. The issue that has arisen in this appeal did not arise for consideration in the two cases decided by this Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd. and Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn. of Maharashtra Ltd. It does not appear from the above two decisions of this Court nor from the decisions of the various High Courts brought to our notice, that in any one of them, the liability of the sick company dealt with therein itself arose, for the first time after the date of sanctioned scheme. At any rate, in none of those cases, a situation arose whereby the sick industrial unit was enabled to collect tax due to the Revenue from the customers after the sanctioned scheme but the sick unit simply folded its hands and declined to pay it over to the Revenue, for which proceedings for recovery, had to be taken. The two decisions of this Court as also the decisions of High Courts brought to our notice are, therefore, distinguishable. They will not apply to a situation as has arisen in this case. We are, therefore, of the opinion that Section 22(1) should be read down or understood as contended by the Revenue. The decision to the contrary by the High Court is unreasonable and unsustainable. | 1 | 4,838 | 261 | ### 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:
not be made the subject-matter of coercive action of similar quality and characteristic till the BIFR finally disposes of the reference made under Section 15 of the 1985 Act. The legislature has advisedly used an omnibus expression the like as it could not have conceived of all possible coercive measures that may be taken against a sick undertaking.... * Our attention was also drawn to the following High Court decisions : Reliance Ispat Industries Ltd. v. CST ( (MP)); Himalaya Rubber Products Ltd. v. Board for Industrial and Financial Reconstruction ((Cal)); Vijay Mills Co. Ltd. v. State of Gujarat ((Guj)), etc 11. The Madhya Pradesh and Calcutta High Courts have followed the decision of this Court in Grain Panchayat v. Shree Vallabh Glass Works Ltd. 12. On a fair reading of the provisions contained in Chapter III of Act 1 of 1986 and in particular Sections 15 to 22, we are of the opinion that the plea put forward by the Revenue is reasonable and fair in all the a circumstances of the case. Under the statute, the BIFR is to consider in what way various preventive or remedial measures should be afforded to a sick industrial company. In that behalf, BIFR is enabled to frame an appropriate scheme. To enable the BIFR to do so, certain preliminaries are required to be followed. It starts with the reference to be made by the Board of Directors of the sick company. The BIFR is directed to make appropriate inquiry as provided in Sections 16 and 17 of the Act. At the conclusion of the inquiry, after notice and opportunity afforded to various persons including the creditors, the BIFR is to prepare a scheme which shall come into force on such date as it may specify in that behalf. It is in implementation of the scheme wherein various preventive, remedial or other measures are designed for the sick industrial company, steps by way of giving financial assistance etc. by Government, banks or other institutions, are contemplated. In other words, the scheme is implemented or given effect to, by affording financial assistance by way of loans, advances or guarantees or reliefs or concessions or sacrifices by Government, banks, public financial institutions and other authorities. In order to see that the scheme is successfully implemented and no impediment is caused for the successful carrying out of the scheme, the Board is enabled to have a say when the steps for recovery of the amounts or other coercive proceedings are taken against sick industrial company which, during the relevant time, acts under the guidance/control or supervision of the Board (BIFR). Any step for execution, distress or the like against the properties of the industrial company or other similar steps, should not be pursued which will cause delay or impediment in the implementation of the sanctioned scheme. In order to safeguard such state of affairs, an embargo or bar is placed under Section 22 of the Act against any step for execution, distress or the like or other similar proceedings against the company without the consent of the Board or, as the case may be, the appellate authority. The language of Section 22 of the Act is certainly wide. But, in the totality of the circumstances, the safeguard is only against the impediment, that is likely to be caused in the implementation of the scheme. If that be so, only the liability or amounts covered by the scheme will be taken in, by Section 22 of the Act. So, we are of the view that though the language of Section 22 of the Act is of wide import regarding suspension of legal proceedings from the moment an inquiry is started, till after the implementation of the scheme or the disposal of an appeal under Section 25 of the Act, it will be reasonable to hold that the bar or embargo envisaged in Section 22(1) of the Act can apply only to such of those dues reckoned or included in the sanctioned scheme. Such amounts like sales tax, etc., which the sick industrial company is enabled to collect after the date of the sanctioned scheme legitimately belonging to the Revenue, cannot be and could not have been intended to be covered within Section 22 of the Act. Any other construction will be unreasonable and unfair and will lead to a state of affairs enabling the sick industrial unit to collect amounts due to the Revenue and withhold it indefinitely and unreasonably. Such a construction which is unfair, unreasonable and against the spirit of the statute in a business sense, should a be avoided 13. The situation which has arisen in this case seems to be rather exceptional. The issue that has arisen in this appeal did not arise for consideration in the two cases decided by this Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd. and Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn. of Maharashtra Ltd. It does not appear from the above two decisions of this Court nor from the decisions of the various High Courts brought to our notice, that in any one of them, the liability of the sick company dealt with therein itself arose, for the first time after the date of sanctioned scheme. At any rate, in none of those cases, a situation arose whereby the sick industrial unit was enabled to collect tax due to the Revenue from the customers after the sanctioned scheme but the sick unit simply folded its hands and declined to pay it over to the Revenue, for which proceedings for recovery, had to be taken. The two decisions of this Court as also the decisions of High Courts brought to our notice are, therefore, distinguishable. They will not apply to a situation as has arisen in this case. We are, therefore, of the opinion that Section 22(1) should be read down or understood as contended by the Revenue. The decision to the contrary by the High Court is unreasonable and unsustainable. 14.
### Response:
1
### Explanation:
13. The situation which has arisen in this case seems to be rather exceptional. The issue that has arisen in this appeal did not arise for consideration in the two cases decided by this Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd. and Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn. of Maharashtra Ltd. It does not appear from the above two decisions of this Court nor from the decisions of the various High Courts brought to our notice, that in any one of them, the liability of the sick company dealt with therein itself arose, for the first time after the date of sanctioned scheme. At any rate, in none of those cases, a situation arose whereby the sick industrial unit was enabled to collect tax due to the Revenue from the customers after the sanctioned scheme but the sick unit simply folded its hands and declined to pay it over to the Revenue, for which proceedings for recovery, had to be taken. The two decisions of this Court as also the decisions of High Courts brought to our notice are, therefore, distinguishable. They will not apply to a situation as has arisen in this case. We are, therefore, of the opinion that Section 22(1) should be read down or understood as contended by the Revenue. The decision to the contrary by the High Court is unreasonable and unsustainable.
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THE STATE OF MANIPUR Vs. TAKHELMAYUM KHELENDRO MEITEI | Corporation Limited (MSPCL) and Manipur State Power Distribution Company Limited (MSPDCL). Manipur State Power Corporation Limited issued a notification inviting applications from eligible candidates for appointment to the post of Junior T echnical Assistants which according to the Respondents are equivalent the post of Assistant Lineman. It is relevant to mention here that the minimum qualification for appointment as per the advertisement was 10 th standard whereas in the year 1999 the minimum qualification required was 8 th standard for appointment as Assistant Lineman. In the interim order passed in the Writ Petitions filed by the Respondents, the High Court directed the State Government not to fill up 56 posts of Junior T echnical Assistants out of the 100 posts which were advertised. However, the advertisement notifying the selection to the posts of Junior T echnical Assistants was withdrawn by the Government.8. A fresh notification for recruitment to 680 posts at Grade-III and Grade-IV levels was issued by the Manipur State Power Corporation Limited. This advertisement included some posts of Junior System Assistant. As this advertisement was issued during the pendency of the Writ Petitions filed by the Respondents, they asserted their right for appointment in the advertised posts of Junior System Assistants. Although, the selection to the posts of Assistant Lineman in the year 1999 was to 155 posts, the present dispute is confined only to 58 Respondents who have filed two Writ Petitions by seeking declaration of the results of their selection in the year 1999. The High Court, by the impugned order, directed the declaration of the results within a period of three weeks and completion of the process of appointment within four weeks. The selected candidates were directed to be adjusted in the post of Junior System Assistants which were notified in the advertisement dated 11 th May, 2016. The Appellant is aggrieved by the said directions issued by the High Court.9. The High Court referred to the Manipur State Electricity (Reforms) Scheme, 2013, especially Clause 7, to hold that all proceedings pending against the Electricity Department shall not abate or be discontinued against the transferee. The High Court was of the view that since the litigation pertaining to the selections that were conducted in the year 1999 was still pending, the transferee entities i.e. Manipur State Power Corporation Limited (MSPCL) and Manipur State Power Distribution Company Limited (MSPDCL) have to discharge their obligations, if any. The High Court referred to several decisions of this Court to reiterate that the State is under no obligation to fill up the vacancies that were advertised, but proceeded to hold that the decision should be bona fide . According to the High Court, there was no bona fide reason for the successor entities of the Electricity Department not to discharge the obligation of appointing candidates selected as Assistant Linemen in the year 1999. The High Court further observed that the process initiated in the year 1999 has not been scrapped. The Appellant was found at fault for not making appointments on the basis of the selections held in the year 1999, while proceeding with recruitment to the post of Junior Assistants and Assistants which are equivalent to Assistant Linemen. On the basis of such reasoning, the High Court directed the appointment of Respondents.10. The issues that arise for our consideration in this case are:(i) Whether the Respondents have any indefeasible right for appointment to the posts of Assistant Lineman on the basis of the selections made in the year 1999?(ii) Whether the High Court could have issued a direction for appointment of the Respondents as Junior System Assistants in the posts advertised on 11 th May, 2016?11. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , it was held that there is no indefeasible right for appointment merely because a candidate is found fit on the basis of a selection. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it was also held in the said judgment that the State does not have any license to act in an arbitrary manner and that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. The High Court observed that there is no bona fide reason for the successor entities of the Electricity Department for not appointing the Respondents. Further, the High Court concluded that it was not the stand of the Appellant that the process of recruitment has been scrapped. The policy decision of the Government dated 19 th March, 2001 cancelling all the selections that were made earlier and banning any further recruitment was part of the record which could not have been ignored by the High Court. There was sufficient justification for the Government of Manipur to ban recruitment. The Government was compelled to take such decision in view of the financial crisis. The said decision of the Government cannot be said to be arbitrary under any circumstances. The policy decision of the Government of Manipur dated 19 th March, 2001 was bona fide and the Respondents cannot assert any right for appointment on the basis of the selections conducted in the year 1999.12. Even assuming that the successor entities of the Electricity Department have an obligation to defend the actions and decisions of the Electricity Department, it is relevant to note that the decision dated 19 th March, 2001 of the Appellant cancelling the selections conducted before that date had not been questioned by the Respondents. In any event, the Respondents do not have a legal right to seek appointment to the posts of Assistant Lineman as the selections stood cancelled by the policy decision dated 19 th March, 2001. We are unable to agree with the High Court?s direction for appointment of the Respondents in the posts of Junior System Assistants which were advertised in 2016. | 1[ds]The said decision of the Government cannot be said to be arbitrary under any circumstances. The policy decision of the Government of Manipur dated 19 th March, 2001 was bona fide and the Respondents cannot assert any right for appointment on the basis of the selections conducted in the year 1999.12. Even assuming that the successor entities of the Electricity Department have an obligation to defend the actions and decisions of the Electricity Department, it is relevant to note that the decision dated 19 th March, 2001 of the Appellant cancelling the selections conducted before that date had not been questioned by the Respondents. In any event, the Respondents do not have a legal right to seek appointment to the posts of Assistant Lineman as the selections stood cancelled by the policy decision dated 19 th March, 2001. We are unable to agree with the High Court?s direction for appointment of the Respondents in the posts of Junior System Assistants which were advertised in 2016. | 1 | 1,832 | 183 | ### 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:
Corporation Limited (MSPCL) and Manipur State Power Distribution Company Limited (MSPDCL). Manipur State Power Corporation Limited issued a notification inviting applications from eligible candidates for appointment to the post of Junior T echnical Assistants which according to the Respondents are equivalent the post of Assistant Lineman. It is relevant to mention here that the minimum qualification for appointment as per the advertisement was 10 th standard whereas in the year 1999 the minimum qualification required was 8 th standard for appointment as Assistant Lineman. In the interim order passed in the Writ Petitions filed by the Respondents, the High Court directed the State Government not to fill up 56 posts of Junior T echnical Assistants out of the 100 posts which were advertised. However, the advertisement notifying the selection to the posts of Junior T echnical Assistants was withdrawn by the Government.8. A fresh notification for recruitment to 680 posts at Grade-III and Grade-IV levels was issued by the Manipur State Power Corporation Limited. This advertisement included some posts of Junior System Assistant. As this advertisement was issued during the pendency of the Writ Petitions filed by the Respondents, they asserted their right for appointment in the advertised posts of Junior System Assistants. Although, the selection to the posts of Assistant Lineman in the year 1999 was to 155 posts, the present dispute is confined only to 58 Respondents who have filed two Writ Petitions by seeking declaration of the results of their selection in the year 1999. The High Court, by the impugned order, directed the declaration of the results within a period of three weeks and completion of the process of appointment within four weeks. The selected candidates were directed to be adjusted in the post of Junior System Assistants which were notified in the advertisement dated 11 th May, 2016. The Appellant is aggrieved by the said directions issued by the High Court.9. The High Court referred to the Manipur State Electricity (Reforms) Scheme, 2013, especially Clause 7, to hold that all proceedings pending against the Electricity Department shall not abate or be discontinued against the transferee. The High Court was of the view that since the litigation pertaining to the selections that were conducted in the year 1999 was still pending, the transferee entities i.e. Manipur State Power Corporation Limited (MSPCL) and Manipur State Power Distribution Company Limited (MSPDCL) have to discharge their obligations, if any. The High Court referred to several decisions of this Court to reiterate that the State is under no obligation to fill up the vacancies that were advertised, but proceeded to hold that the decision should be bona fide . According to the High Court, there was no bona fide reason for the successor entities of the Electricity Department not to discharge the obligation of appointing candidates selected as Assistant Linemen in the year 1999. The High Court further observed that the process initiated in the year 1999 has not been scrapped. The Appellant was found at fault for not making appointments on the basis of the selections held in the year 1999, while proceeding with recruitment to the post of Junior Assistants and Assistants which are equivalent to Assistant Linemen. On the basis of such reasoning, the High Court directed the appointment of Respondents.10. The issues that arise for our consideration in this case are:(i) Whether the Respondents have any indefeasible right for appointment to the posts of Assistant Lineman on the basis of the selections made in the year 1999?(ii) Whether the High Court could have issued a direction for appointment of the Respondents as Junior System Assistants in the posts advertised on 11 th May, 2016?11. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , it was held that there is no indefeasible right for appointment merely because a candidate is found fit on the basis of a selection. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it was also held in the said judgment that the State does not have any license to act in an arbitrary manner and that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. The High Court observed that there is no bona fide reason for the successor entities of the Electricity Department for not appointing the Respondents. Further, the High Court concluded that it was not the stand of the Appellant that the process of recruitment has been scrapped. The policy decision of the Government dated 19 th March, 2001 cancelling all the selections that were made earlier and banning any further recruitment was part of the record which could not have been ignored by the High Court. There was sufficient justification for the Government of Manipur to ban recruitment. The Government was compelled to take such decision in view of the financial crisis. The said decision of the Government cannot be said to be arbitrary under any circumstances. The policy decision of the Government of Manipur dated 19 th March, 2001 was bona fide and the Respondents cannot assert any right for appointment on the basis of the selections conducted in the year 1999.12. Even assuming that the successor entities of the Electricity Department have an obligation to defend the actions and decisions of the Electricity Department, it is relevant to note that the decision dated 19 th March, 2001 of the Appellant cancelling the selections conducted before that date had not been questioned by the Respondents. In any event, the Respondents do not have a legal right to seek appointment to the posts of Assistant Lineman as the selections stood cancelled by the policy decision dated 19 th March, 2001. We are unable to agree with the High Court?s direction for appointment of the Respondents in the posts of Junior System Assistants which were advertised in 2016.
### Response:
1
### Explanation:
The said decision of the Government cannot be said to be arbitrary under any circumstances. The policy decision of the Government of Manipur dated 19 th March, 2001 was bona fide and the Respondents cannot assert any right for appointment on the basis of the selections conducted in the year 1999.12. Even assuming that the successor entities of the Electricity Department have an obligation to defend the actions and decisions of the Electricity Department, it is relevant to note that the decision dated 19 th March, 2001 of the Appellant cancelling the selections conducted before that date had not been questioned by the Respondents. In any event, the Respondents do not have a legal right to seek appointment to the posts of Assistant Lineman as the selections stood cancelled by the policy decision dated 19 th March, 2001. We are unable to agree with the High Court?s direction for appointment of the Respondents in the posts of Junior System Assistants which were advertised in 2016.
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Tika Ram & Sons Ltd. Etc Vs. The Commissioner Of Sales Tax U.P., Lucknow | that question. Also, in Gannon Dunkerley and Co. v. State of Madras, ILR (1955) Mad 832 = (AIR 1954 Mad 1130 ), the proceeding reached the High Court of Madras in a revision petition under Section 12-B of the Madras General Sales Tax Act, 1939 and the High Court entertained the plea of ultra vires and decided it in favour of the tax-payer.7. It is, however, not necessary in the present case for us to decide the question as to whether the principle laid down in K. S. Venkataramans case, (1966) 2 SCR 229 = (AIR 1966 SC 1089 ) is applicable. The reason is that the appellants did not challenge the jurisdiction of the High Court to examine the question of law regarding the constitutional validity of Explanation II to Section 2 (h) of the Act. Nor was any such challenge made in the Special Leave Petition to this Court or in the statement of the case. On the contrary the appellant has itself applied to the Judge, Revisions under Section 10 of the Act contending the Explanation II to Section 2 (h) was ultra vires. It is not therefore open to the appellants to deny the jurisdiction of the Revisional Authority to decide the question or to challenge the jurisdiction of the High Court to examine the question of law referred to it under Section 11 of the Act and to pronounce upon the constitutional validity of the impugned section.In other words, it must be taken that the appellants had voluntarily submitted to the jurisdiction of the Revisional Authority and of the High Court on the matter in issue and having submitted to the jurisdiction and having taken the chance of judgment in its favour, it is not right that the appellants should take exception to the jurisdiction of the High Court when the judgment has gone against it. We cannot therefore permit the appellants to canvass in this Court for the first time the question whether it was competent for the High Court to decide the question of law referred to it under Sec. 11 of the Act. We accordingly reject the argument of the appellants on this aspect of the case.8. It was lastly submitted by Mr. Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Sales-tax was incompetent as the Commissioner was neither a dealer nor a person aggrieved within the meaning of the section as it originally stood, and the amendment effected in sub-section (3) of Section 11 by U. P. Sales Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales-tax Authorities as well as before the Revising Authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising Authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr. Chagla that at the time the Commissioner applied for a reference under Section 11 of the Act the amending Act 1954 had already come into force and under the amended section the Commissioner was empowered to ask for a reference. The point taken was that the material date was the date on which the appellants made the application for revision and not the date on which the application was actually decided by the Revising Authority. We are unable to accept this argument as correct. The right to apply for a reference is conferred upon a person aggrieved by an order passed under Section 10 and this right exists regardless of when the application for revision was made. Only the existence of an order under Section 10 is required for the accrual of the right to make an application for a reference. It was suggested by Mr. Chagla that the Commissioner did not have the right to apply for a reference because the right did not exist when the appellants had made the application for revision. But the right did exist on the date on which the Commissioner applied for a reference and there is nothing in the language or context of Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made. On behalf of the appellants Mr. Chagla referred to the well- recognised rule that a statute should be interpreted, as far as possible, so as to respect vested rights.But this rule has no application to the present case for we do not think that amendment of Section 11 of the Act by enabling the Commissioner also to ask for a reference of a question to the High Court alters any vested or substantive right of the assessee. On the contrary, we consider that the amendment is merely to procedural matter and the present case falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of courts.For "it is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be". Gardner v. Lucas, (1878) 3 AC 582. We are accordingly of the opinion that Mr. Chagla is unable to make good his argument on this aspect of the case. | 0[ds]4. It was argued by Mr. Chagla in the first place that Cl. (ii) of Explanation 11 to Section 2 (h) of the Act means that the goods should have been manufactured and produced in Uttar Pradesh for sale to the person who had contracted to buy them. In other words, there must be a contract for the sale before manufacture or produce. It was pointed out that in the present case the contract was entered into after the goods were manufactured and exported out of Uttar Pradesh. It was contended that as a matter of construction Explanation 11 does not cover these sales and the deeming provision will not make the appellants liable to pay sales-tax in regard to such sales. We are unable to accept this argument as correct. There is nothing in the language or context of Explanation II to suggest that the goods should be produced or manufactured in Uttar Pradesh after the contracts for sale had been entered into. There is hence no warrant for the argument that for attracting the tax liability the goods must have been manufactured or produced after and not before the agreement for sale.In other words it is only necessary for the application of Explanation II that the goods must have been sold by the person who produced or manufactured them but there is no requirement that he must have manufactured or produced them after the agreement for sale.It is the admitted position in these appeals that the goods were manufactured or produced in Uttar Pradesh by the appellants carrying on business in Uttar Pradesh in those goods and therefore the appellants are liable to pay the tax on their sales irrespective of where and when the cotracts for sale were entered into and also irrespective of the fact that the contracts were entered into after the goods had been exported out of Uttar Pradesh. We accordingly hold that the first question was rightly answered by the Highwas argued by Mr. Chagla that the doctrine of nexus was not applicable to sales-tax legislation, because such legislation was concerned with the tax on the transaction of sale, that is to say, a completed sale and to break up a sale into its component parts and to take one or more such parts and to apply the theory to it would mean that the State would be entitled to impose tax on one or more of the ingredients or constituent elements of the transaction of sale which by itself will not amount to ais manifest that a transaction of sale is a composite transaction and consists of legal ingredients like agreement of sale, passing of title and delivery of goods but it is not necessary for the purpose of legislative jurisdiction that all legal ingredients of sale or even the transfer of title should have taken place inside the Province. It is sufficient if there is a proper territorial nexus or connection between the taxing authority and the transaction sought to be taxed. The fact that the goods are manufactured in the Province constitutes a real and pertinent nexus or connection which confers jurisdiction upon the Provincial Legislature to impose theour opinion, the ratio of this decision applies to the present case and it must be accordingly held that Explanation II to Section 2 (h) of the Act is not ultra vires as being outside the legislative competence of the State of Uttar Pradesh.It was lastly submitted by Mr. Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Sales-tax was incompetent as the Commissioner was neither a dealer nor a person aggrieved within the meaning of the section as it originally stood, and the amendment effected in sub-section (3) of Section 11 by U. P. Sales Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales-tax Authorities as well as before the Revising Authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising Authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr. Chagla that at the time the Commissioner applied for a reference under Section 11 of the Act the amending Act 1954 had already come into force and under the amended section the Commissioner was empowered to ask for a reference. The point taken was that the material date was the date on which the appellants made the application for revision and not the date on which the application was actually decided by the Revising Authority. We are unable to accept this argument as correct. The right to apply for a reference is conferred upon a person aggrieved by an order passed under Section 10 and this right exists regardless of when the application for revision was made. Only the existence of an order under Section 10 is required for the accrual of the right to make an application for a reference. It was suggested by Mr. Chagla that the Commissioner did not have the right to apply for a reference because the right did not exist when the appellants had made the application for revision. But the right did exist on the date on which the Commissioner applied for a reference and there is nothing in the language or context of Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made. On behalf of the appellants Mr. Chagla referred to the well- recognised rule that a statute should be interpreted, as far as possible, so as to respect vested rights.But this rule has no application to the present case for we do not think that amendment of Section 11 of the Act by enabling the Commissioner also to ask for a reference of a question to the High Court alters any vested or substantive right of the assessee. On the contrary, we consider that the amendment is merely to procedural matter and the present case falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of courts.For "it is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be".Gardner v. Lucas, (1878) 3 ACWe are accordingly of the opinion that Mr. Chagla is unable to make good his argument on this aspect of the case. | 0 | 5,344 | 1,264 | ### 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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that question. Also, in Gannon Dunkerley and Co. v. State of Madras, ILR (1955) Mad 832 = (AIR 1954 Mad 1130 ), the proceeding reached the High Court of Madras in a revision petition under Section 12-B of the Madras General Sales Tax Act, 1939 and the High Court entertained the plea of ultra vires and decided it in favour of the tax-payer.7. It is, however, not necessary in the present case for us to decide the question as to whether the principle laid down in K. S. Venkataramans case, (1966) 2 SCR 229 = (AIR 1966 SC 1089 ) is applicable. The reason is that the appellants did not challenge the jurisdiction of the High Court to examine the question of law regarding the constitutional validity of Explanation II to Section 2 (h) of the Act. Nor was any such challenge made in the Special Leave Petition to this Court or in the statement of the case. On the contrary the appellant has itself applied to the Judge, Revisions under Section 10 of the Act contending the Explanation II to Section 2 (h) was ultra vires. It is not therefore open to the appellants to deny the jurisdiction of the Revisional Authority to decide the question or to challenge the jurisdiction of the High Court to examine the question of law referred to it under Section 11 of the Act and to pronounce upon the constitutional validity of the impugned section.In other words, it must be taken that the appellants had voluntarily submitted to the jurisdiction of the Revisional Authority and of the High Court on the matter in issue and having submitted to the jurisdiction and having taken the chance of judgment in its favour, it is not right that the appellants should take exception to the jurisdiction of the High Court when the judgment has gone against it. We cannot therefore permit the appellants to canvass in this Court for the first time the question whether it was competent for the High Court to decide the question of law referred to it under Sec. 11 of the Act. We accordingly reject the argument of the appellants on this aspect of the case.8. It was lastly submitted by Mr. Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Sales-tax was incompetent as the Commissioner was neither a dealer nor a person aggrieved within the meaning of the section as it originally stood, and the amendment effected in sub-section (3) of Section 11 by U. P. Sales Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales-tax Authorities as well as before the Revising Authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising Authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr. Chagla that at the time the Commissioner applied for a reference under Section 11 of the Act the amending Act 1954 had already come into force and under the amended section the Commissioner was empowered to ask for a reference. The point taken was that the material date was the date on which the appellants made the application for revision and not the date on which the application was actually decided by the Revising Authority. We are unable to accept this argument as correct. The right to apply for a reference is conferred upon a person aggrieved by an order passed under Section 10 and this right exists regardless of when the application for revision was made. Only the existence of an order under Section 10 is required for the accrual of the right to make an application for a reference. It was suggested by Mr. Chagla that the Commissioner did not have the right to apply for a reference because the right did not exist when the appellants had made the application for revision. But the right did exist on the date on which the Commissioner applied for a reference and there is nothing in the language or context of Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made. On behalf of the appellants Mr. Chagla referred to the well- recognised rule that a statute should be interpreted, as far as possible, so as to respect vested rights.But this rule has no application to the present case for we do not think that amendment of Section 11 of the Act by enabling the Commissioner also to ask for a reference of a question to the High Court alters any vested or substantive right of the assessee. On the contrary, we consider that the amendment is merely to procedural matter and the present case falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of courts.For "it is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be". Gardner v. Lucas, (1878) 3 AC 582. We are accordingly of the opinion that Mr. Chagla is unable to make good his argument on this aspect of the case.
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of Explanation II that the goods must have been sold by the person who produced or manufactured them but there is no requirement that he must have manufactured or produced them after the agreement for sale.It is the admitted position in these appeals that the goods were manufactured or produced in Uttar Pradesh by the appellants carrying on business in Uttar Pradesh in those goods and therefore the appellants are liable to pay the tax on their sales irrespective of where and when the cotracts for sale were entered into and also irrespective of the fact that the contracts were entered into after the goods had been exported out of Uttar Pradesh. We accordingly hold that the first question was rightly answered by the Highwas argued by Mr. Chagla that the doctrine of nexus was not applicable to sales-tax legislation, because such legislation was concerned with the tax on the transaction of sale, that is to say, a completed sale and to break up a sale into its component parts and to take one or more such parts and to apply the theory to it would mean that the State would be entitled to impose tax on one or more of the ingredients or constituent elements of the transaction of sale which by itself will not amount to ais manifest that a transaction of sale is a composite transaction and consists of legal ingredients like agreement of sale, passing of title and delivery of goods but it is not necessary for the purpose of legislative jurisdiction that all legal ingredients of sale or even the transfer of title should have taken place inside the Province. It is sufficient if there is a proper territorial nexus or connection between the taxing authority and the transaction sought to be taxed. The fact that the goods are manufactured in the Province constitutes a real and pertinent nexus or connection which confers jurisdiction upon the Provincial Legislature to impose theour opinion, the ratio of this decision applies to the present case and it must be accordingly held that Explanation II to Section 2 (h) of the Act is not ultra vires as being outside the legislative competence of the State of Uttar Pradesh.It was lastly submitted by Mr. Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Sales-tax was incompetent as the Commissioner was neither a dealer nor a person aggrieved within the meaning of the section as it originally stood, and the amendment effected in sub-section (3) of Section 11 by U. P. Sales Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales-tax Authorities as well as before the Revising Authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising Authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr. Chagla that at the time the Commissioner applied for a reference under Section 11 of the Act the amending Act 1954 had already come into force and under the amended section the Commissioner was empowered to ask for a reference. The point taken was that the material date was the date on which the appellants made the application for revision and not the date on which the application was actually decided by the Revising Authority. We are unable to accept this argument as correct. The right to apply for a reference is conferred upon a person aggrieved by an order passed under Section 10 and this right exists regardless of when the application for revision was made. Only the existence of an order under Section 10 is required for the accrual of the right to make an application for a reference. It was suggested by Mr. Chagla that the Commissioner did not have the right to apply for a reference because the right did not exist when the appellants had made the application for revision. But the right did exist on the date on which the Commissioner applied for a reference and there is nothing in the language or context of Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made. On behalf of the appellants Mr. Chagla referred to the well- recognised rule that a statute should be interpreted, as far as possible, so as to respect vested rights.But this rule has no application to the present case for we do not think that amendment of Section 11 of the Act by enabling the Commissioner also to ask for a reference of a question to the High Court alters any vested or substantive right of the assessee. On the contrary, we consider that the amendment is merely to procedural matter and the present case falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of courts.For "it is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be".Gardner v. Lucas, (1878) 3 ACWe are accordingly of the opinion that Mr. Chagla is unable to make good his argument on this aspect of the case.
|
Asst.Commercial Taxes Officer Vs. M/S. Kansai Nerolac Paints Ltd | The Department challenged this order before the Rajasthan Tax Board, Ajmer Bench (for short `the Board), on different grounds.4. The appeal preferred by the Department came to be dismissed by the order of the Board dated 04.04.2005. The Board, while setting aside the order, expressed the view that prior to 22.03.2002 penalty could not be imposed on the owner of the goods under Section 78(5) of the Act besides that there was no intention to commit any evasion of tax.5. Aggrieved by the order of the Board, the Department preferred revision petition under Section 86 of the Act before the High Court of Judicature for Rajasthan at Jodhpur, and after stating the facts, the Department raised, inter alia, the following important questions of law:- "(i) Whether mens rea to evade the tax on the part of the dealer is a necessary ingredient for imposition of penalty u/s 78(5) of the Act of 1994, for violation of provisions of Section 78(2) of the Act of 1994?(ii) Whether the blank declaration form ST-18A with the goods in transit by itself attracts the provisions of penalty under Section 78(5) of the Act of 1994 for violation of the provisions of Section 78(2) of the Act of 1994?(iii) Whether the learned Tax Board has erred in law in holding that prior to 22.3.2002 the penalty u/s 78(5) of the Act of 1994 for violation of Section 78(2) of the Act of 1994 could not have been imposed against the owner of the goods?(iv) Whether the findings arrived at by the learned Tax Board are contrary to law and facts and perverse?(v) Any other question of law which this Honble Court considers just and proper in the facts and circumstances of the case may also be decided." 6. The High Court vide its order dated 17.12.2007 dismissed the revision petition. This order is impugned by the Assistant Commercial Taxes Officer in the present appeal under Article 136 of the Constitution of India. The primary challenge before us is that the High Court has not recorded any reason for rejecting the revision petition of the appellant despite the fact that the matter was argued at length and various questions of law were raised before the High Court. We may also notice that in the grounds taken before us, various questions of fact and law have been raised and it is specifically urged that the impugned judgment of the High Court is contrary to the principles stated by this Court in the case of Guljag Industries v. Commercial Tax Officer [(2007) 7 SCC 269] , where the Court has held that the form should be complete in all respects and should be supported by requisite declaration/documents.7. It will be more appropriate to reproduce the order impugned in the present appeal at this stage itself:- "Heard learned counsel for the petitioner. The Tax Board set aside the penalty imposed upon the owner of the goods in a transaction which took place prior to 22.3.2002. After going through the reasons given by the Tax Board, I do not find any illegality in the impugned order passed by the Tax Board.Consequently, this revision petition, having no merits, is hereby dismissed." 8. As already noticed, the principal challenge raised before us is that the High Court has disposed of the matter by a cryptic order and has not given any reason for rejecting the revision petition preferred by the Department. It is urged that the questions raised in the revision petition were likely to arise in a number of cases and as such it was expected of the High Court to deal with the contentions raised in some elaboration. 9. We have noticed that the High Court has not recorded its own reasoning for dismissing the revision petition in accordance with law. It would have certainly been more appropriate for the High Court to examine the matter at some length and deal with the arguments/grounds raised in the petition before it. Be that as it may, another aspect of the matter which this Court has to take note of is that, in the case of Guljag Industries (supra) to which one of us (Kapadia J.) was a party, this Court had held that the object of Section 78(5) of the Act was to remedy the loss of revenue and where Form ST 18A/18C was duly signed but without giving material particulars, would automatically attract levy of penalty for breach of Section 78 (2) of the Act. It was also stated in the judgment that this modus operandi of the owner of goods in that case did indicate mens rea. This principle was further explained and was finally settled in a subsequent judgment of this Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [(2009) 1 SCC 308] to which again one of us (Kapadia J.) was a party. In this case the Court explained the expression "person in charge of the goods" with reference to the declaration Form ST 18A prescribed under Rule 53 of the Rajasthan Sales Tax Rules, 1995 and substitution of this expression by "the owner of the goods or person in charge of the goods" by amending Act 7 of 2002. The Court also reiterated with approval the dictum in relation to the presence of mens rea in such cases holding that modus operandi adopted by the consignee of not giving material particulars in Form ST 18-A would by itself meet the object of mens rea.The records and the above noticed facts clearly show that the High Court erred in law in not recording any reasons for rejecting the respective contentions raised before the Court. We have also noticed that some of the judgments of this Court referred by the Department and/or by the owner of goods have not been referred to, much less, commented upon in accordance with law. Thus, we have no option except to say that the order of the High Court is unreasoned and suffers from the infirmity of non-application of mind. | 1[ds]9. We have noticed that the High Court has not recorded its own reasoning for dismissing the revision petition in accordance with law. It would have certainly been more appropriate for the High Court to examine the matter at some length and deal with the arguments/grounds raised in the petition before it. Be that as it may, another aspect of the matter which this Court has to take note of is that, in the case of Guljag Industries (supra) to which one of us (Kapadia J.) was a party, this Court had held that the object of Section 78(5) of the Act was to remedy the loss of revenue and where Form ST 18A/18C was duly signed but without giving material particulars, would automatically attract levy of penalty for breach of Section 78 (2) of the Act. It was also stated in the judgment that this modus operandi of the owner of goods in that case did indicate mens rea. This principle was further explained and was finally settled in a subsequent judgment of this Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [(2009) 1 SCC 308] to which again one of us (Kapadia J.) was a party. In this case the Court explained the expression "person in charge of the goods" with reference to the declaration Form ST 18A prescribed under Rule 53 of the Rajasthan Sales Tax Rules, 1995 and substitution of this expression by "the owner of the goods or person in charge of the goods" by amending Act 7 of 2002. The Court also reiterated with approval the dictum in relation to the presence of mens rea in such cases holding that modus operandi adopted by the consignee of not giving material particulars in Form ST 18-A would by itself meet the object of mens rea.The records and the above noticed facts clearly show that the High Court erred in law in not recording any reasons for rejecting the respective contentions raised before the Court. We have also noticed that some of the judgments of this Court referred by the Department and/or by the owner of goods have not been referred to, much less, commented upon in accordance with law. Thus, we have no option except to say that the order of the High Court is unreasoned and suffers from the infirmity of non-application of mind. | 1 | 1,439 | 435 | ### Instruction:
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The Department challenged this order before the Rajasthan Tax Board, Ajmer Bench (for short `the Board), on different grounds.4. The appeal preferred by the Department came to be dismissed by the order of the Board dated 04.04.2005. The Board, while setting aside the order, expressed the view that prior to 22.03.2002 penalty could not be imposed on the owner of the goods under Section 78(5) of the Act besides that there was no intention to commit any evasion of tax.5. Aggrieved by the order of the Board, the Department preferred revision petition under Section 86 of the Act before the High Court of Judicature for Rajasthan at Jodhpur, and after stating the facts, the Department raised, inter alia, the following important questions of law:- "(i) Whether mens rea to evade the tax on the part of the dealer is a necessary ingredient for imposition of penalty u/s 78(5) of the Act of 1994, for violation of provisions of Section 78(2) of the Act of 1994?(ii) Whether the blank declaration form ST-18A with the goods in transit by itself attracts the provisions of penalty under Section 78(5) of the Act of 1994 for violation of the provisions of Section 78(2) of the Act of 1994?(iii) Whether the learned Tax Board has erred in law in holding that prior to 22.3.2002 the penalty u/s 78(5) of the Act of 1994 for violation of Section 78(2) of the Act of 1994 could not have been imposed against the owner of the goods?(iv) Whether the findings arrived at by the learned Tax Board are contrary to law and facts and perverse?(v) Any other question of law which this Honble Court considers just and proper in the facts and circumstances of the case may also be decided." 6. The High Court vide its order dated 17.12.2007 dismissed the revision petition. This order is impugned by the Assistant Commercial Taxes Officer in the present appeal under Article 136 of the Constitution of India. The primary challenge before us is that the High Court has not recorded any reason for rejecting the revision petition of the appellant despite the fact that the matter was argued at length and various questions of law were raised before the High Court. We may also notice that in the grounds taken before us, various questions of fact and law have been raised and it is specifically urged that the impugned judgment of the High Court is contrary to the principles stated by this Court in the case of Guljag Industries v. Commercial Tax Officer [(2007) 7 SCC 269] , where the Court has held that the form should be complete in all respects and should be supported by requisite declaration/documents.7. It will be more appropriate to reproduce the order impugned in the present appeal at this stage itself:- "Heard learned counsel for the petitioner. The Tax Board set aside the penalty imposed upon the owner of the goods in a transaction which took place prior to 22.3.2002. After going through the reasons given by the Tax Board, I do not find any illegality in the impugned order passed by the Tax Board.Consequently, this revision petition, having no merits, is hereby dismissed." 8. As already noticed, the principal challenge raised before us is that the High Court has disposed of the matter by a cryptic order and has not given any reason for rejecting the revision petition preferred by the Department. It is urged that the questions raised in the revision petition were likely to arise in a number of cases and as such it was expected of the High Court to deal with the contentions raised in some elaboration. 9. We have noticed that the High Court has not recorded its own reasoning for dismissing the revision petition in accordance with law. It would have certainly been more appropriate for the High Court to examine the matter at some length and deal with the arguments/grounds raised in the petition before it. Be that as it may, another aspect of the matter which this Court has to take note of is that, in the case of Guljag Industries (supra) to which one of us (Kapadia J.) was a party, this Court had held that the object of Section 78(5) of the Act was to remedy the loss of revenue and where Form ST 18A/18C was duly signed but without giving material particulars, would automatically attract levy of penalty for breach of Section 78 (2) of the Act. It was also stated in the judgment that this modus operandi of the owner of goods in that case did indicate mens rea. This principle was further explained and was finally settled in a subsequent judgment of this Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [(2009) 1 SCC 308] to which again one of us (Kapadia J.) was a party. In this case the Court explained the expression "person in charge of the goods" with reference to the declaration Form ST 18A prescribed under Rule 53 of the Rajasthan Sales Tax Rules, 1995 and substitution of this expression by "the owner of the goods or person in charge of the goods" by amending Act 7 of 2002. The Court also reiterated with approval the dictum in relation to the presence of mens rea in such cases holding that modus operandi adopted by the consignee of not giving material particulars in Form ST 18-A would by itself meet the object of mens rea.The records and the above noticed facts clearly show that the High Court erred in law in not recording any reasons for rejecting the respective contentions raised before the Court. We have also noticed that some of the judgments of this Court referred by the Department and/or by the owner of goods have not been referred to, much less, commented upon in accordance with law. Thus, we have no option except to say that the order of the High Court is unreasoned and suffers from the infirmity of non-application of mind.
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1
### Explanation:
9. We have noticed that the High Court has not recorded its own reasoning for dismissing the revision petition in accordance with law. It would have certainly been more appropriate for the High Court to examine the matter at some length and deal with the arguments/grounds raised in the petition before it. Be that as it may, another aspect of the matter which this Court has to take note of is that, in the case of Guljag Industries (supra) to which one of us (Kapadia J.) was a party, this Court had held that the object of Section 78(5) of the Act was to remedy the loss of revenue and where Form ST 18A/18C was duly signed but without giving material particulars, would automatically attract levy of penalty for breach of Section 78 (2) of the Act. It was also stated in the judgment that this modus operandi of the owner of goods in that case did indicate mens rea. This principle was further explained and was finally settled in a subsequent judgment of this Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [(2009) 1 SCC 308] to which again one of us (Kapadia J.) was a party. In this case the Court explained the expression "person in charge of the goods" with reference to the declaration Form ST 18A prescribed under Rule 53 of the Rajasthan Sales Tax Rules, 1995 and substitution of this expression by "the owner of the goods or person in charge of the goods" by amending Act 7 of 2002. The Court also reiterated with approval the dictum in relation to the presence of mens rea in such cases holding that modus operandi adopted by the consignee of not giving material particulars in Form ST 18-A would by itself meet the object of mens rea.The records and the above noticed facts clearly show that the High Court erred in law in not recording any reasons for rejecting the respective contentions raised before the Court. We have also noticed that some of the judgments of this Court referred by the Department and/or by the owner of goods have not been referred to, much less, commented upon in accordance with law. Thus, we have no option except to say that the order of the High Court is unreasoned and suffers from the infirmity of non-application of mind.
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Sebastian M. Hongray Vs. Union of India and Others | exchanged between the parties, a petition was moved in the Queens Bench Division, whereupon a summons was served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage should not be issued. The appellant filed several affidavits inter alia contending that the boy Harry Gossage, was adopted by one Mr. Norton of Canada on November 16, 1888 long before the respondent mother coveyed a desire to transfer the boy to the Catholic home. It was further contended on behalf of the appellant that Harry Gossage was not with him since November 16, 1888 when he transferred him into the care of Mr. Norton and at the time of the service of the summons, he was not in his custody or power. In a proceeding before Methew, J. after cross-examination of the appellant the learned Judge refused to order the writ to be issued. In the meantime, the case in Reg. v. Barnardo Tyes(1) case was decided by the Court of Appeal in which it was laid down that it was not an excuse for non-compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, and accordingly a fresh application was made for a writ of habeas corpus. After hearing the arguments, the Judges of the Queens Bench Division made absolute the order for the issue of the writ. The appellant approached the House of Lords. It is in this context that the Court held that the respondent was entitled to a return of the writ. To some extent, the position before us is identical, if not wholly similar. When the petition in the present case was moved before this Court, rule nisi was issued calling upon the respondents to submit their version about the detention of C. Daniel and C. Paul. The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that C. Daniel and C. Paul were taken by the army jawans on March 10, 1982, though not under arrest, to the army camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. Machihan and C. Shangnam. The petitioner and those filing affidavits in support including H.L. Machihan, C. Shangnam and Smt. Thingkhuila, wife of C. Daniel and Smt. Vangamla, wife of Shri C. Paul denied that C. Daniel and C. Paul left army camp on March 11, 1982 and returned to the village, therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. Now that the facts are clearly established which led to the rejection of the contention of the respondents that C. Daniel and C. Paul ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phugrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1, 2 and 4 to file the return. In this context, it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce C. Daniel, retired Naib Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining village and C. Paul, Assistant Pastor of Huining Baptist Church, the writ must be issued and the petition must succeed to that extent.It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel. The search in village Huining was taken by the jawans of 21st Sikh Regiment on March 6, 1982. On March 7, 1982, Mr. Joshi had to visit the village when he received complaints of torture and ill-treatment of village inhabitants at the hands of the personnel of the security forces. Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already deal with. In the course of hearing, a request was made by Mr. Vaidyanathan, learned counsel for the petitioner and at a later date by Miss Haskar that the Manipur State Government be called upon to produce; (1) Report of the Superintendent of Police (ii) Report of the Deputy Commissioner and (iii) Statement of Yangya Anei Tangkhul alias Malugnai Tangkhul. A copy of the third document is already produced. As far as reports mentioned at (i) and (ii), privilege was claimed on behalf of the E. Kunjeshwar Singh, Secretary (Home), Manipur. In the affidavit claiming privilege, it is stated that the aforementioned two reports dated April 28, 1982 and 31st may, 1982 were with regard to the incident that occurred on March 10, 1982. Before adjudicating upon the claim of privilege, we called upon Mr. V. C. Mahajan, learned counsel for the State of Manipur to produce the reports for our perusal. We read the reports. We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.Accordingly | 1[ds]We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining Village and C. Paul, Assistant Paster of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on Dec. 12, 1983 and file the return. | 1 | 9,140 | 231 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
exchanged between the parties, a petition was moved in the Queens Bench Division, whereupon a summons was served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage should not be issued. The appellant filed several affidavits inter alia contending that the boy Harry Gossage, was adopted by one Mr. Norton of Canada on November 16, 1888 long before the respondent mother coveyed a desire to transfer the boy to the Catholic home. It was further contended on behalf of the appellant that Harry Gossage was not with him since November 16, 1888 when he transferred him into the care of Mr. Norton and at the time of the service of the summons, he was not in his custody or power. In a proceeding before Methew, J. after cross-examination of the appellant the learned Judge refused to order the writ to be issued. In the meantime, the case in Reg. v. Barnardo Tyes(1) case was decided by the Court of Appeal in which it was laid down that it was not an excuse for non-compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, and accordingly a fresh application was made for a writ of habeas corpus. After hearing the arguments, the Judges of the Queens Bench Division made absolute the order for the issue of the writ. The appellant approached the House of Lords. It is in this context that the Court held that the respondent was entitled to a return of the writ. To some extent, the position before us is identical, if not wholly similar. When the petition in the present case was moved before this Court, rule nisi was issued calling upon the respondents to submit their version about the detention of C. Daniel and C. Paul. The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that C. Daniel and C. Paul were taken by the army jawans on March 10, 1982, though not under arrest, to the army camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. Machihan and C. Shangnam. The petitioner and those filing affidavits in support including H.L. Machihan, C. Shangnam and Smt. Thingkhuila, wife of C. Daniel and Smt. Vangamla, wife of Shri C. Paul denied that C. Daniel and C. Paul left army camp on March 11, 1982 and returned to the village, therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. Now that the facts are clearly established which led to the rejection of the contention of the respondents that C. Daniel and C. Paul ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phugrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1, 2 and 4 to file the return. In this context, it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce C. Daniel, retired Naib Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining village and C. Paul, Assistant Pastor of Huining Baptist Church, the writ must be issued and the petition must succeed to that extent.It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel. The search in village Huining was taken by the jawans of 21st Sikh Regiment on March 6, 1982. On March 7, 1982, Mr. Joshi had to visit the village when he received complaints of torture and ill-treatment of village inhabitants at the hands of the personnel of the security forces. Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already deal with. In the course of hearing, a request was made by Mr. Vaidyanathan, learned counsel for the petitioner and at a later date by Miss Haskar that the Manipur State Government be called upon to produce; (1) Report of the Superintendent of Police (ii) Report of the Deputy Commissioner and (iii) Statement of Yangya Anei Tangkhul alias Malugnai Tangkhul. A copy of the third document is already produced. As far as reports mentioned at (i) and (ii), privilege was claimed on behalf of the E. Kunjeshwar Singh, Secretary (Home), Manipur. In the affidavit claiming privilege, it is stated that the aforementioned two reports dated April 28, 1982 and 31st may, 1982 were with regard to the incident that occurred on March 10, 1982. Before adjudicating upon the claim of privilege, we called upon Mr. V. C. Mahajan, learned counsel for the State of Manipur to produce the reports for our perusal. We read the reports. We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.Accordingly
### Response:
1
### Explanation:
We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining Village and C. Paul, Assistant Paster of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on Dec. 12, 1983 and file the return.
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